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KEM132.P3™1913"™"''''''"^ 
 "SSIilS■&fi!^H±l?.?.T.:o' cases rep 
 
 3 1924 018 086 292 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018086292 
 
Manitoba Digest 
 
 1875-1911 
 
 CASES REPORTED IN VOLUMES 
 
 1 
 
 TBMP. WOOD 
 
 AND 
 
 I— XXI MANITOBA REPORTS 
 
 TOGETHER WITH 
 
 A SELECTION OF MANITOBA CASES FROM THE REPORTS^OP 
 
 THE SUPREME AND EXCHEQUER COURTS OF CANADA 
 
 AND OTHER CANADIAN* LEGAL PUBLICATIONS 
 
 Also 
 
 TABLE OF CASES AFFIRMED, REVERSED, FOLLOWED. 
 
 OVERRULED OR SPECIALLY CONSIDERED. 
 
 Compiled by Order of the Law Society of Manitoba 
 
 , BY 
 
 GEORGE PATTERSON, K.C. 
 
 ■^ AND 
 
 WILLIAM A. TAYLOR, 
 
 Barrister-at-I,aw. 
 
 \VINNIPEG : 
 
 Stovei< Co. Limited. 
 
 1913. 
 
JUDGES 
 
 OF THB 
 
 Court of Appeal. 
 
 The Hon. Hector Mansfield HoTraiLL, C.J.M. — Appointed July 23rd, 1906. 
 
 The Hon. Albert El^wood Richards, J.A. — ^Appointed July 23rd, 1906. 
 
 The Hon. William Egerton Perdue, J.A.T-Appointed July 23rd, 1'906. 
 
 The Hon. Frank Hbdlet Phippen, J.A.— Appointed July 23rd, 1906; 
 resigned April 15th, 1909. 
 
 The Hon. John Donald Qameron, J.A. — ^Appelated April 27tli, 1909. 
 
 The Hon. Alexander Haggart, J.A. — ^Appointed April 3rd, 1912. 
 
Addenda. 
 
 COL. 
 
 348. After ISrunkenness read See Intoxication. 
 585. After Intoxication read See Drunkenness. 
 AttachmeVt of Debts See Garnishment. 
 
 \Errata. 
 
 COL. 
 
 , \ 
 
 
 
 199. 
 
 For 9 M.R.^ 
 
 I 27 read 19 M.R. 
 
 27. 
 
 160. 
 
 For 3 M.R. 
 
 S58 read 1 M.R. 
 
 358. 
 
 580. 
 
 For 3 M.R. 
 
 371 Kead 1 M.R. 
 
 371. 
 
 753. 
 
 For 21 M.R. 
 
 416 read 12 M.R. 
 
 416. 
 
 895. 
 
 For 12 M.R. 
 
 53\read 12 M.R. 
 
 653. 
 
 899. 
 
 For 3 M.R. 
 
 368\ead 1 M.R. 
 
 368. 
 
 963. 
 
 For 15 M.R. 
 
 573 rW 14 M.R. 
 
 573. 
 
 974. 
 
 For 3 M.R. 
 
 350 reid 1 M.R. 
 
 350. 
 
 1002. 
 
 For 4 M.R. 
 
 42 readvll M.R. 
 
 42. 
 
Table of Cases Digested. 
 
 Column 
 Volume. of Digest . 
 
 A., an Attorney, Re 6 M.R. 181 1118 
 
 6 M.R. 398 1114 
 
 6 M.R. 601 1116 
 
 - ^ 11 C.L.T. Occ. N. 208 1115 
 
 A.B., an Attorney, Re 3 M.R. 316 1114 
 
 A. i>. A 15 M.R. 483 19 
 
 - v.B 14 M.R. 729 1088 
 
 Abell V. Allan 3 M.R. 467 518 
 
 V. 3 M.R. 479 1139 
 
 - V. 5 M.R. 25 517 
 
 V. Craig '. . . . 12 M.R. 81 32 
 
 ■ V. Hornby 15 M.R. 4-50 382 
 
 V. McLaren 13 M.R. 463 '337 
 
 Abell Engine Co. v. Harms 16 M.R. 546 279 
 
 — V. McGuire 13 M;R. 454 197 
 
 Acme Silver Co. v. Ferret 4 M.R. 501 1055 
 
 Acton, Law v. -. 14 M.R. 246 1237 
 
 Adams v. Hockin ; . . . . 12 M.R. 11 1010 
 
 V. 12 M.R. 433 1008 
 
 Hutchings v 12 M.R. 118 910 
 
 Leibrock v 17 M.R. 575 261 
 
 V. Montgomery 18 M.R. 22 509 
 
 «. McGreevy 17 M.R. 115 117 
 
 — — Reg. V 5 M.R. 153 640 
 
 V. Woods 19 M.R. 285 655 
 
 Adamson, Imperial Bank v 1 M.R. 96 406 
 
 V. Mcllvanie 3 M.R. 29 456 
 
 Shiels V '. 14 M.R. 703 882 
 
 Adcock V. Manitoba Free Press Co 19 M.R. 160 1096 
 
 Ady V. Harris 9 M.R. 127 537 
 
 Mtna. Life Insurance Co. «;. Sharp 11 M.R. 141 890 
 
 Affleck V. Mason 21 M.R. 759 868 
 
 Agnew V. Morphy 1 M.R. 49 1039 
 
 Whitla V : 11 M.R. 66 896 
 
 Aikins v. Allan 14 M.R. 549 923 
 
 Aitken v. Doherty . . ; 11 M.R. 624 31 
 
 Akin, Thordarson v 21 M.R. 157 1155 
 
 Alberta & Great Waterways Ry. Co., Re 20 M.R. 697 463 
 
 Aldous V. Grundy 21 M.R. 559 919 
 
 V. Swanson.. 20 M.R. 101 918 
 
 Alexander, Muir v • 15 M.R. 103 945 
 
 All Saints Church, Martin v 3 M.R. 314 682 
 
 Allan, Re 7 M.R. 28 1083 
 
X TABLE OF CASES DIGESTED. 
 
 Colamn 
 Volume. of Digest. 
 
 Allan, Abell v 3 M.R. 467 518 
 
 V. 3 M.R. 479 1139 
 
 ■ V. 6 M.R. 25 517 
 
 Aikins v 14 M.R. 549 923 
 
 V. Clougher ' 12 M.R. 327 255 
 
 ■ Commercial Bank v 10 M.R. 330 102 
 
 t). Gordon 1 M.R. 132 149 
 
 Jackson v 11 M.R. 36 393 
 
 V. Man. & N. W. Ry. Co., Re Gray 9 M.R. 388 900 
 
 V. Man. & N. W. Ry; Co., Re Gray 
 
 No. 1 10 M.R. 106 737 
 
 u. Man. & N. W. Ry. Co., Re Gray 
 
 No. 2 10 M.R. 123 818 
 
 - — V. Man. & N. W. Ry. Co 10 M.R. 143 999 
 
 V. Man. & N. W. Ry. Co 12 M.R. 57 901 
 
 V. McKay T.W. Ill 345 
 
 Allen t>. Dickie 2 M.R. 61 854 
 
 — *Fox V 14 M.R. 358 1232 
 
 - Monitor Plow Works v T.W. 165 583 
 
 Allis V. Walker . .' ■. 21 M.R. 770 1227 
 
 Alloway v. Campbell 7 M.R. 506 1080 
 
 Campbell v 8 M.R. 224 1022 
 
 — 2). Hrabi ...;.... 14 M.R. 627 91 
 
 — V. Morris •. . 18 M.R. 363 1067 
 
 — Schultz V 10 M.R. 221 1070 
 
 «;. St. Andrews 15 M.R. 188 1011 
 
 V. 16 M.R. 255 1076 
 
 Alois Schweiger & Co. v. Vineberg Co. . . 15 M.R. 536 845 
 
 American Abell Co. v. McMillan 19 M.R. 97 347 
 
 V. 42 S.C.R. 377 347, 533 
 
 — Smith V 17 M.R. 5 169 
 
 V. Tourond 19 M.R. 660 233 
 
 American Plumbing Co. v. Wood 3 M.R. 42 889 
 
 Anchor Elevator Co. v. Heney 18 M.R. 96 597 
 
 Anderson, Re 14 M.R. 535 649 
 
 16 M.R. 177 631 
 
 Bouchette v T.W. 64 928 
 
 ?;. C. N. R 20 M.R. 19 994 
 
 V. 21 M.R. 121 781 
 
 V. 45 S.C.R. 355 781 
 
 V. Douglas 18 M.R. 254 1202 
 
 V. Imperial Development Co. : . 20 M.R. 275 900 
 
 z). Johnson... ;... 6 M.R. 113 123 
 
 Landed Banking & Loan Co. v. 3 M.R. 270 39 
 
 '■ Reg. V T.W. 177 599 
 
 — Vineberg t-. '. . 6 M.R. 335 1063 
 
 ^- Watts y 5 M.R. 291 400 
 
 Andrew,Credit Foncier Franco-Canadien y. 9 M.R. 65 719 
 
TABLE OF CASES DIGESTED. xi 
 
 Column 
 Volume. of Digest., 
 
 Andrew v. Kilgour 19 M.R. 545 27 
 
 Andrews v. Brown : 19 M.R. 4 454 
 
 V. Moodie ." ' 17 M.R. 1 199 
 
 Anglo-Canadian Land Co. t;. Gordon... 19 M.R. 201 " 223 
 
 Angus, Imperial Bank v 1 M.R. 98 417 
 
 Anly V. Holy Trinity Church 2 M.R. 248 686 
 
 V. 3 M.R. 193 686 
 
 Anon, Re 3 M.R. 687 1073 
 
 A. 0. U. W. Grand Lodge v. Supreme 
 
 Lodge A. 0. U. W 17 M.R. 360 471 
 
 Arbuthnot v. Dupas 15 M.R. 634 935 
 
 Arbuthnot Co. v. Winnipeg Manufacturing 
 
 Co.: .'. 16 M.R. 401 696. 
 
 : Wood V 16 M.R. 320 1105 
 
 Archibald v. Goldstein 1 M.R. 45 933 
 
 — V. — 1 M.R. 146 799 
 
 Schultz V & M.R. 284 13 
 
 ■ V. Youville 10 C.L.T. Occ. N. 388 1082 
 
 ' V. 7 M.R. 473 1083 
 
 Ardagh, Re : 4 M.R. 509 266 
 
 Arden Hotel Co. i;. Mills 20 M.R. 14 219 
 
 Argyle «;. C. P. R 14 M.R. 382 114 
 
 V. 35 S.C.R; 550 120 
 
 Argyle, Mun. of. Re Houghton and ... . 14 M.R. 526 96,7 
 
 Armit v. Hudson's Bay Co 3 M.R. 529 576 
 
 ■ Morris v 4 M.R. 152 69 
 
 V 4 M.R. 307 263 
 
 Armitage v. Vivian 2 M.R. 360 7 
 
 Armstrong, Meighen v 16 M.R. 5 134 
 
 Phillips Electrical Works v... 8 M.R. 48 897 
 
 ■ V. Portage. Westbourne & 
 
 Northwestern Ry. Co. . 1 M.R. 344 153 
 
 V. Tyndall Quarry Co 20 M.R. 254 681 
 
 Arnold v. Caldwell 1 M.R. 81 142 
 
 : V. 1 M.R. 155 " 388 
 
 ~ V. McLaren 1 M-.R. 313 1034 
 
 ■ Wright w 6 M.R. 1 268 
 
 Arrowhead Lumber Co., Bent v 18 M.R. 277 862 
 
 : V 18 M.R. 632 915 
 
 Ashdown, Boddy y 11 M.R. 555 104 
 
 ■■ Cuperman v 20 M.R. 424 879 
 
 V. Dederick 2 M.R. 212 ■ 885 
 
 ; Dederick v 4 M.R. 139 141 
 
 V 4 M.R. 174 1122 
 
 v '.... 4 M.R. 349 44 
 
 V : 15 S.C.R. 227 141 
 
 — V. Manitoba Free Press Co. . . 6 M.R. 578 623 
 
 V. —- . .20 S.C.R. 43 623 
 
xii TABLE OF CASES DIGESTED. 
 
 Polumn 
 Volume. of Digest. 
 
 Ashdown V. Manitoba Land Co 3 M.R. 444 927 
 
 '■ V. Montgomery 8 M.R. 520 637 
 
 iJ.'Nash 3 M.R. 37 583 
 
 Assiniboia Election, Re , 4 M.R. 328 365 
 
 4 M.R. 346 1092 
 
 . . . .' 14 W.L.R. 392 814 
 
 McLellan v 5 M.R. 127, 265 1080 
 
 V ,5 M.R. 299 879 
 
 Wallis V 4 M.R. 89 756 
 
 Assiniboine Valley Stock Co., Re 6 M.R. 105 1248 
 
 -. 6 M.R. 184 1248 
 
 Atcheson v. Rural Mun. of Portage la 
 
 Prairie 9 M.R. 192 752 
 
 V. 10 M.R. 39 750 
 
 Atkin y. C. P. R 18 M.R. 617 989 
 
 Atkinson, Bennett v 10 M.R. 48 909 
 
 V. Borland 14 M.R. 205 472 
 
 Hardy v 18 M.R. 351 522 
 
 Attorney, Re 3 M.R. 316 1114 
 
 6 M.R. 19 1116 
 
 6 M.R. 181 1118 
 
 6 M.R. 398 1114 
 
 — 6 M.R. 601 1116 
 
 Attorney General v. Fonseca 5 M.R. 173 322 
 
 V. 5 M.R. 300 1092 
 
 V. 17 S.C.R. 612 323 
 
 Hudson's Ba,y Co. v. . T.W. 209 189 
 
 V. Macdonald 6 M.R. 372 1135 
 
 V. Richard 4 M.R. 336 836 
 
 ^ V. Ryan 5 M.R. 81 317 
 
 V. Wright 3 M.R. 197 559 
 
 — — for Manitoba v. At- 
 torney General for Canada.... 34 S.C.R. 287 318 
 
 Aubert, Vosper v 18 M.R. 17 ' 1215 
 
 Austin, Kennedy v 1 M.R. 362 1122 
 
 Axford, Stobart v ' 9 M.R. 18 515 
 
 Ayotte, Re 15 M.R. 156 192 
 
 B.— Deceased, Re 16 M.R. 269 1154 
 
 B., A. «; 14 M.R. 729 1088 
 
 Babington, Monkman v 5 M.R. 253 564 
 
 Badgley, McCarthy v: 6 M.R. 270 1013 
 
 Bailey v. Fortier 3 M.R. 670 262 
 
 McWilliams v 9 M.R. 563 905 
 
 Shaw V. 17 M.R. 97 12O6 
 
 Supply Co., Tett v 19 M.R. 250 275 
 
TABLE OP CASES DIGESTED. xiii 
 
 Column 
 Volume. of Digest. 
 
 Bain v. C. P. R 15 M.R. 544 947 
 
 V. 16 M.R. 391 990 
 
 and Chambers, Re 11 M.R. 550 1026 
 
 V. Torrance 1 M.R. 32 75 
 
 Baird, Barnes v ' 15 M.R. 162 716 
 
 Morice v 6 M.R. 241 385 
 
 Baker, Shorey v 1 M.R. 282 505 
 
 Bakewell v. McMicken 3 M.R. 244 891 
 
 Balfour v. Drummond. .'. 9 C.L.T. Occ. N. 201 1030 
 
 — ■ V. 4 M.R. 388 874 
 
 V. 4 M.R. 467 870 
 
 V. ■ 5 M.R. 1 248 
 
 V. : ; 5 M.R. 242 248 
 
 Evans v 3 M.R. 243 948 
 
 Bank of B. N. A. v. Bossuyt : . 15 M.R. 266 573 
 
 — V. Munro 9 M.R. 151 1162 
 
 — V. McComb 21 M.R. 58 86 
 
 ■ — V. Mcintosh 11 M.R. 503 523 
 
 V. Wood 19 M.R. 633 144 
 
 Bank of Hamilton, v. Donaldson 13 M.R. 378 78 
 
 V. Gillies 12 M.R. 495 88 
 
 — ■ V.' Murray 12 M.R. 495 88 
 
 Bank of Montreal v. Black 9 M.R. 439 816 
 
 — V. Condon 11 M.R. 366 485 
 
 V. Cornish T.W. 272 468, 636 
 
 Manitoba Mortgage 
 
 Co. V 9 C.L.T. Occ. N. 125 76 
 
 — ■ -17 S.C.R. 692 76 
 
 ■ V. Poyner 7 M.R. 270 955 
 
 — V. Tudhope 21 M.R. 380 77 
 
 Bank of Nova Scotia v. Booth 19 M.R. 394 462 
 
 — V. 19 M.R. 471 943 
 
 V. Hope 9 M.R. 37 579 
 
 Jackson v 9 M.R. 75 104 
 
 Bank of Ottawa v. Newton 16 M.R. 242 60 
 
 ■■ V. Wilton 10 W.L.R. 331 1058 
 
 Bannatyne, Paisley v 4 M.R. 255 911 
 
 V. Pritchard 16 M.R. 407 1086 
 
 V. Suburban Rapid Transit 
 
 Co 15 M.R. 7 . 1173 
 
 Bannerman, Re 2 M.R. 377 1021 
 
 Banque d'Hochelaga's Claim, Re 10 M.R. 171 75 
 
 V. Merchants Bank 
 
 of Canada 10 M.R. 361 1224 
 
 Banting v. Law Union & Crown Mortgage 
 
 Co 21 M.R. 142 991 
 
 V. Western Ass. Co. . . ■ 21 M.R. 142 991 
 
 Barber v. Gibbins 19 S.C.R'204 180 
 
xiv TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Barber, Hoskins v T.W. 264 278 
 
 McKay v 3 M.R. 41 593 
 
 Barker, Manitoba & N. W. Loan Co. v. 8 M.R. 296 720 
 
 Barkwell's Claim, Re II' M.R. 494 799 
 
 Barlow, Davis v 20 M.R. 158 814 
 
 V 21 M.R. 265 192 
 
 V. Williams 16 M.R. 164 1210 
 
 Barnes v. Baird 15 M.R. 162 716 
 
 — Long V 14 M:R. 427 846 
 
 Reg. V 4 M.R. 448 304 
 
 Rex t; 21 M.R. 357 299 
 
 Barr v. Clark 5 M.R. 130 37 
 
 Barrager, Decock v 19 M.R. 34 200 
 
 Barre, Lewis v 14 M.R. 32 1055 
 
 ■ Rex V 15 M.R. 420 306 
 
 Barrett v. C. P. R... 16 M.R. 549, 558 1004 
 
 On V 6 M.R. 300 32 
 
 V. Winnipeg 7 M.R. 273 185 
 
 ■ V. 19 S.C.R. 374 185 
 
 V. — [1892] A.C. 445 185 
 
 Barrie v. Wright 15 M.R. 197 534 
 
 Barry v. Stuart 18 M.R. 614 256 
 
 Bartlett, Case v.. 12 M.R. 280 1040 
 
 V. House Furnishing Co 16 M.R. 350 , 600 
 
 McMillan v 2 M.R. 374 503 
 
 Baskerville, Sawyer v 10 M.R. 652 198 
 
 Bateman v. Merchants Bank 1 M.R. 260 477 
 
 Saul «; 6 M.R. 189 66 
 
 Schatsky j; 17 M.R. 347 901 
 
 —^ z;. Svenson 18 M.R. 493 412 
 
 V. 42 S.C.R. 146 46 
 
 Bates V. Cannon 18 M.R. 7 496 
 
 Bathgate 'v. Merchants Bank 5 M.R. 210 105 
 
 Batter, Re C. P. R. and 13 M.R. 200 980 
 
 Battley, Wright v 15 M.R. 522 1045 
 
 '■ V 24 C.L.T. Occ. N. 278 816 
 
 Baynes v. Metcalf 3 M.R. 438 1101 
 
 Beach v. Graves 1 M.R. 26 520 
 
 Beale, Reg. v 11 M.R. 448 315 
 
 Beaucage v. Winnipeg Stone Co 14 W.L.R. 575 681 
 
 Beautiful Plains, Re 10 M.R. 130 357 
 
 Becher v. McDonald 5 M.R. 223 557 
 
 Beckel, Hopkins' w 4 M.R. 408 1036 
 
 Bedson Estate, Re : 19 M.R. 664 635 
 
 Beech, Elliott v 3 M.R. 213 88 
 
 Beemer v. Inkster 3 M.R. 534 1044 
 
 Belch V. Manitoba & N. W. Ry. Co. . . 4 M.R. 198 154 
 
 Bell, James v. 11 C.L.T. Occ. N. 57 1070 
 
TABLE OF GASES DIGESTED. xv 
 
 Column 
 Volume. of Digest. 
 
 Bell V. Rokeby ; 15 M.R. 327 922 
 
 V. Northwood 3 M.R. 514 220 
 
 Vopni V 17 M.R. 417 542 
 
 V. Winnipeg Elec. St. Ry. Co 15 M.R. 338 792 
 
 V. ■ — . ... 37 S.C.R. 515 792 
 
 Bellamy, Waters z; 5 M.R. 246 107 
 
 Bellemere, Youville v 14 M.R. 511 966 
 
 Benard v. McKay 9 M.R. 156 644 
 
 Bennett v. Atkinson 10 M.R. 48 909 
 
 V. Gilmour 16 M.R. 304 25 
 
 Bennetto «. C. P. R 18 M.R. 13 979 
 
 Paget V 17 M.R. 356 1186 
 
 V. Winnipeg 18 M.R. 100 55 
 
 Winnipeg Granite Co. w 21 M.R. 743 411 
 
 Bent V. Arrowhead Lumber Co 18 M.R. 277 862 
 
 V. 18 M.R. 632 915 
 
 Bentley v. Bentley , . . 12 M.R. 436 23^ 
 
 Bergman ?;. Bond 14 M.R. 503 69^9 
 
 Newton v ... 13 M.R. 563 64 
 
 — V. Smith : . 11 M.R. 364 600 
 
 Bergman's Claim, Re 8 M.R. 463 1251 
 
 Bemardin v. La Fleche 21 M.R. 315 1228 
 
 Bernardine v. North Dufferin 6 M.R. 88 239 
 
 V. ■■ — 19 S.C.R. 581 239 
 
 Bernhart v. McCutcheon 12 M.R. 394 135 
 
 Berryman, Renwick v 3 M.R. 387 ' 383 
 
 Bertrand v. Canadian Rubber Co 12 M.R. 27 499 
 
 V. Heaman 11 M.R. 205 384 
 
 V. Hooker 10 M.R. .445 492 
 
 V. Magnusson 10 M.R. 490 424 
 
 V. Parkes 8 M.R. 175 491 
 
 Besant, Sprague v .... 3 M.R. 519 690 
 
 Betsworth, Nixon v 16 M.R. 1 905 
 
 Bettsworth, Re 11 W.L.R. 649 295 
 
 Beynon, Irwin v 4 M.R. 10 688 
 
 Bibby, Re 6 M.R. 472 237 
 
 Bickley, Gardiner v 2 W.L.R. 146 704 
 
 V 15 M.R. 354 . 334 
 
 Bielschowsky, Schwartz v 21 M.R. 310 587 
 
 Bifrost, Hannesdottir v 21 M.R. 433 1159 
 
 Biggs, McMahon v 4 M.R. 84 903 
 
 Reg. V 2 M.R. 18 281 
 
 • V. Wood 2 M.R. 272 101 
 
 BirtJe, Wood v 4 M.R. 415 1066 
 
 Bishop Engraving & Printing Co., Re . . 4 M.R. 429 1250 
 
 9 M.R. 62 413 
 
 Bissett, Commercial Bank v 7 M.R. 586 102, 912 
 
 Bisson V. Sinnott 1 M.R. 26 860 
 
xvi TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Black, Bank of Montreal v 9 M.R. 439 816 
 
 Hiebert v 38 S.C.R. 557 735 
 
 V. Kennedy T.W. 144 553, 1109 
 
 McKinnon v 1 M.R. 243 582 
 
 V. Wiebe' 4 W.L.R. 218 1140 
 
 V. 15 M.R. 260 691 
 
 V. Winnipeg Elec. Rj-. Co 17 M.R. 77 743 
 
 Wolff V 1 M.R. 243 582 
 
 Blackstone, Reg. f 4 M.R. 296 469 
 
 Blackwood, Re C. N. R. and 20 M.R. 113 982 
 
 f. C. N. R 20 M.R. 161 971 
 
 t). Percival 14 M.R. 216 941 
 
 Blair z;. Smith 1 M.R. 5 1164 
 
 Blake, Griffin v 21 M.R. 547 892 
 
 V. Manitoba Milling Co 8 M.R. 427 260 
 
 Blakeston v. Wilson ,. . . . 14 M.R. 271 54 
 
 Blanchard, Cleaver v 4 M.R. 464 801 
 
 *-^ f'oote V 4 M.R. 460 1159 
 
 w. Muir ^ 13 M.R. 8 636 
 
 V. Scanlon 3 M.R. 13 1085 
 
 Scottish Man. Investment Co. v. 2 M.R. 154 556 
 
 — ■ Stevenson v 2 M.R. 78 ■ 739 
 
 Board of Manhood Suffrage Registrars for 
 
 South Winnipeg, Re 13 M.R. 345 959 
 
 Boddy V. Ashdown 11 M.R. 555 104 
 
 Bole v.- Mahon -10 M.R. 150 1179 
 
 V. Rose 10 M.R. 633 898 
 
 Bolton, Manitoba & N.W. Loan Co. v. . 9 M.R. 153 , 517 
 
 Bond, Bergman v.... : 14 M.R. 503 699 
 
 Rex V 21 M.R. 366 300 
 
 Bonnar, Rex v. 14 M.R. 467 672 
 
 t). No. 2 14 M.R. 481 192 
 
 Bonneau, Wishart v : . . 5 M.R. 132. 129 
 
 Bonney v. Bonney 9 M.R. 280 1177 
 
 Borland, Atkinson v 14 M.R. 205 472 
 
 Booth, Bank of Nova Scotia v 19 M.R. 394 462 
 
 ' V 19 M.R. 471 ■ 943 
 
 V. Moffatt 11 M.R. 25 781 
 
 Bossuyt, Bank oi B.'N.A.v 15 M.R. 266 573 
 
 Bouchette v. Anderson ^. . T.W. 64 928 
 
 Boughton V. Hamilton Provident 10 M.R. 683 925 
 
 Bourbonniere, Parent v 13 M.R. 172 1196 
 
 Bourdin, North-West Thresher Co. v. . . 20 M.R. 505 476 
 
 Boultbee v. Shore T.W. 376 1128 ' 
 
 V. 1 M.R. 22 1202 
 
 Bower, Minaker v 2 M.R. 265 1175 
 
 Bowler, Foulds v 8 W.L.R. 189 1239 
 
TABLE OF CASES DIGESTED. xvii 
 
 Column 
 IVolume. of Digest. 
 
 Bowser, Watson Man. Co, «; 18 M.R. 425 , 883 
 
 V 21 M.R. 21 822 
 
 Box, WUliams v - 19 M.R. 560 717 
 
 V 44 S.C.R. 1 717 
 
 Boyce w. McDonald 9 M.R. 297 171 
 
 V. Soames 16 M.R. 109 5 
 
 Boyd V. Irwin 3 M.R. 90 123 
 
 Snider v .- 11 M.R. 398 355 
 
 Boyle, Evans v 5 M.R. 152 1097 
 
 — — V. Wilson 9 M.R. 180 833 
 
 Bradbury v. Moffatt 1 M.R. 92 949 
 
 Bradford, Stobart v 11 C.L.T. Occ. N. 207 1179 
 
 Bradley, Moore v 5 M.R. 49 24 
 
 — — V. McLeish 1 M.R. 103 591 
 
 Brand v. Green 12 M.R. 337 156 
 
 V. 13 M.R. 101 172 
 
 Brandes, Robertson v 11 M.R. 264 904 
 
 Brandon Bridge, Re 2 M.R. 14 177 
 
 — - City Election, Re 8 M.R. 505 366 
 
 — 9 M.R. 511 372 
 
 Curie V 15 M.R. 122 • 755 
 
 — Dominion Express Co. t; 19 M.R. 257 564 
 
 V 20 M.R. 304 1157 
 
 — Election 20 M.R. 705 741 
 
 — • Petition, Re 16 M.R. 249 363 
 
 Mun. Election, Re 20 M.R. 705 74] 
 
 — Machine Works Co., Mattice v. 17 M.R. 105 828 
 
 ^ Re Scott and 10 M.R. 494 1163 
 
 Steam Laundry Co. v. Hanna 19 M.R. 8 1204 
 
 Wishart v 4 M.R. 453 749 
 
 Brandrith «;. Jackson 2 M.R. 129 364 
 
 Braun v. Braun 14 M.R. 346 421 
 
 V. Davis.. 9 M.R. 534 513 
 
 — V. 9 M.R. 539 41 
 
 y. Hughes 3 M.R. 177 1194 
 
 — ■ Rex V 8 Can. Cr. Cas. 397 1254 
 
 — Rogers v 16 M.R. 580 201 
 
 Ward V 7 M.R. 229 253 
 
 Brayfield v. Cardiff 9 M.R. 302 343 
 
 Bready, Rutherford v 9 M.R. 29 886 
 
 Breden v. Lyon T.W. 50. 159 
 
 Bremner, Re 6 M.R. 73 66 
 
 Brenchley v. McLeod 12 M.R. 647 36 
 
 Brett V. Foorsen T. 17 M.R. 241 168 
 
 Orton V : 12 M.R. 448 897 
 
 Brice, Reg. v 7 M.R. 627 285 
 
 Brimstone v. Smith 1 M.R. 302 476 
 
 Brisebois v. Poudrier 1 M.R. 29 267 
 
xvlii TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 British Canadian Loan Co., Ripstein v.. 7 M.R. 119 542 
 
 Graham v. 12 M.R. 244 930 
 
 ■■ V. Fanner . . 15 M.R. 593 1032 
 
 British Empire, &c.. Ass. Co. v. Luxton 9 M.R. 169 937 
 
 British Linen Co. v. McEwan 6 M.R. 29 1094 
 
 = V. 6 M.R. 292 465 
 
 : V. 8 M.R. 99 466 
 
 V. 8 M.R. 214 890 
 
 Brittlebank v. Gray-Jones 5 M.R. 33 676 
 
 Britton, Cowan v 3 M.R-. 175 396 
 
 Brock D. D'Aoust -. . 9 M.R. 195 413 
 
 — — Fisher 2; 8 M.R. 137 502 
 
 V. Royal Lumber Co 17 M.R. 351 230 
 
 —T— Wumipeg v 20 M.R. 669 747 
 
 — i; 45 S.C.R. 271 747 
 
 Brodsky, Re Western Co-operative Con- 
 
 ' struction Co. and 15 M.R. 681 1147 
 
 Brooks, Washburn & Moen Man. Co. v. 2 M.R. 44 400 
 
 Brough V. McClelland 18 M.R. 279 1051 
 
 Broughton v. Hamilton Prov. Soc 10 M.R. 683 863 
 
 Brown, Re 21 M.R. 91 1253 
 
 Andrews v 19 M.R. 4 454 
 
 Burke v 9 M.R. 305 32 
 
 — V. Canada Port Huron Co 15 M.R. 638 906 
 
 — ^«. C.P. R 3 M.R. 496 974 
 
 — V. 4 M.R. 396 173 
 
 Fisher, Re, and 1 M.R. 116 53 
 
 — v. narrower 3 M.R. 441 395 
 
 V. Hoare 16 M.R. 314 1211 
 
 Holmes v • 18 M.R. 48 670 
 
 V. Hooper 3 M.R. 86 411 
 
 V. London Fence, Limited 19 M.R. 138 409 
 
 — Re Magnus 8 M.R. 391 1234 
 
 — Malcolm v 16 C.L.T. Occ. N. 198 806 
 
 Martin v 19 M.R. 680 932 
 
 — O'Connor v 5 M.R. ^63 243 
 
 — V. Peace 11 M.R. 409 482 
 
 Paterson v 11 M.R. 612 739 
 
 . . V. Portage la Prairie Man. Co. . 3 M.R. 245 577 
 
 — V. Shantz 7 M.R. 42 1098 
 
 V. Telegram Printing Co 21 M.R. 775 854 
 
 Browning v. Ryan 4 M.R. 486 565 
 
 Brunswick, Balke Co. & Martin, Re . . . 3 M.R. 328 575 
 
 Bryan v. Freeman 7 M.R. 57 124 
 
 Bryans, Ferguson v 15 M.R. 170 495 
 
 Bryant, Reg. v 3 M.R. 1 237 
 
 Brydges v. Clement 14 M.R. 588 924 
 
 — Fullerton v 10 M.R. 431 552 
 
TABLE OF CASES DIGESTED. xix 
 
 Column 
 Volume. of Digest. 
 
 Brydon, Imperial Bank v 2 M.R. 117 395 
 
 t). Lutes 9 M.R. 463 115 
 
 Bryson v. Rosser 18 M.R. 658 1222 
 
 Buchanan, Re 12 M.R. 612 1020 
 
 V. Campbell 6 M.R. 303 1099 
 
 ■■ Foley V 18 M.R. 296 865 
 
 Reg. V 12 M.R. 190 315 
 
 — V Winnipeg 19 M.R. 553 111 
 
 V. 21 M.R. 101 251 
 
 V. 21 M.R. 714 252 
 
 Bucknam v. Stewart 11 M.R. 491 1013 
 
 V. 11 M.R. 625 1023 
 
 Budd I'. McLaughlin 10 M.R. 75 709 
 
 Building & Loan Ass., Vaughan v 6 M.R. 289 607 
 
 Bulger, Re 21 M.R. 702 664 
 
 Bulman, Fensom v 17 M.R. 307 ■ 208 
 
 Bulmer, Union Bank v , 2 M.R. 380 821 
 
 —. V 7 C.L.T. Occ. N. 277 820 
 
 Bunnell, Hunter v 3 W.L.R. 229 920 
 
 Burbank v. Webb 5 M.R. 264 568 
 
 Burdett w. C. P. R 10 M.R. 5 976 
 
 Burke, Reg. v ; 6 M.R. 121 433 
 
 Burgess, Owens v. . . .■ 11 M.R. 75 443 
 
 Burke v. Brown 9 M.R. 305 32 
 
 Horsman v. 4 M.R. 245 550 
 
 Poison V 5 M.R. 31 259 
 
 Reg. ?; 6 M.R. 121 433 
 
 Burley V. Knappen 20 M.R. 154 59.3 
 
 Burnet, C. P. R. i> 5 M.R 395 121 
 
 Burnett, Canadiaij Port Huron Qo. v. .. 17 M.R. 55 329 
 
 Burnham, Douglas v 5 M.R. 261 584 
 
 V. Walton 2 M.R. 180 577 
 
 V. 3 M.R. 204 582 
 
 Burns, Tait v 8 M.R. 19 244 
 
 Burridge v. Ernes . . .' 2 M.R. 232 809 
 
 Burrows v. Mickelson 14 M.R. 739 614 
 
 Howard v 7 M.R. 181 1121 
 
 Burt V. Clarke 5 M.R. 150 822, 1034 
 
 Bushell, Hooper v 5 M.R. 300 261 
 
 Russian, Holliday ?;. . .' 16 M.R. 437 444 
 
 Butler, Davis v 7 W.L.R. 85 87 
 
 Murphy v - 18 M.R. Ill 932 
 
 ■■ V. ...^ 41 S.C.R. 618 932 
 
 Byerley and Winnipeg, Re 20 M.R. 438 429 
 
 Byers, McMillan v 3 M.R. 361 392 
 
 V. 4 M.R. 76 224, 392 
 
XX TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. ■ of Digest. 
 
 Byers, McMUlan ». . . : 15 S.CB. 194 224, 392 
 
 Cadieux, Laferriere v 11 M.R. 175 349 
 
 Cairns, Copelin v. 19 M.R. 509 1100 
 
 — V. Dunkin 6 W.L.R. 256 1213 
 
 Caisley v. SteWart 21 M.R. 341 1131 
 
 Calder v. Dancey . ; 2 M.R. 383 1162 
 
 — V. 4 M.R. 25 876 
 
 Hutchinson v 1 M.R. 46 397 
 
 Caldwell, Arnold v 1 M.R. , 81 142 
 
 r^ V 1 M.R. 155 388 
 
 Calgary, C. P. R. t; 5 M.R. 37 1068 
 
 Callan i;. C. N. R 19 M.R. 141 972 
 
 Calloway v. Pearson 6 M.R. 364 570 
 
 V. Piatt : 17 M.R. 485 1024 
 
 Reg. «; 3 M.R. 297 969 
 
 V. Stobart 14 M.R. 650 926 
 
 V. 35 S.C.R. 301 926 
 
 Tait t; ,1 M.R. 102 886 
 
 V 2 M.R. 289 1129 
 
 V 2 M.R. 312 1128 
 
 Calvert f . C. N. R 18 M.R. 307 249 
 
 Cameron v. Cameron 3 M.R. 308 823 
 
 V. Dauphin 14 M.R. 573 963 
 
 V. Mcllroy 1 M.R. 197 869 
 
 V. — 1 M.R. 241 898 
 
 V. 1 M.R. 242 732 
 
 V. Overend 15 M.R. 408 ■ 1112 
 
 V. Perry 2 M.R 231 25 
 
 V. Tate 9 C.L.T. Occ. N. 19 927 
 
 V. ; . 15 S.C.R. 622 927 
 
 Walker v : . . . 2 M.R. 95 897 
 
 V. Winnipeg Elec. Ry. Co. ... 17 M.R. 475 602 
 
 Campbell, Re 5 M.R. 262, 274 526 
 
 14 C.L.T. Occ. N. 433 1146 
 
 AUoway v 7 M.R. 506 1080 
 
 V. Alloway 8 M.R. 224 1022 
 
 — — Buchanan v 6 M.R. 303 1099 
 
 V. Canadian Co-op. Invt. Co, . . 16 M.R. 464 797 
 
 — — Davidson v 5 M.R. 250 695 
 
 Downs V 7 M.R. 34 1015 
 
 V. Gemmell '. . . 6 M.R. 355 514 
 
 V. Heaslip 6 M.R. 64 829 
 
 V. Imperial Loan Co. ... 15 M.R'. 614 818 
 
 '• V. .... 18 M.R. 144 725 
 
 V. Joyce 15 W.L.R. 29, 291 252 
 
TABLE OF CASES DIGESTED. xxi 
 
 Column 
 Volume. of Digest. 
 
 Campbell, Lewis Furniture Co. V 21 M.R. 390 1182 
 
 — ^ Miller v 14 M.R. 437 560 
 
 McGregor v 19 M.R. 38 59, 1104 
 
 V. McKinnon 14 M.R. 421 616 
 
 — ^ National Trust Co. v 17 M.R. 587 718 
 
 Noble V 20 M.R. 232 733 
 
 V 21 M.R. 597 716 
 
 Canada Cycle & Motor Co., Smith v. .. 20 M.R. 134 851 
 
 Canada Elevator Co. v. Kaminiski , . . . 17 M.R. 298 899 
 
 Canada Furniture Co. v. Stephenson ... 19 M.R. 618 940 
 
 Canada Law Book Co. v. ... 17 M.R. 345 . 427 
 
 Canada N. W. Land Co., Lynch v 19 S.C.R. 204 180 
 
 Canada Paper Co., McMaster v 1 M.R. 309 376 
 
 Canada Permanent Loan & Savings c o. v. 
 
 Donore 11 M.R. 120 238 
 
 — V. East Selkirk 9 M.R. 331 516 
 
 — V. Hilliard 3 M.R. 32 572 
 
 ■ V. Merchants Bank . , 3 M.R. 285 456 
 
 Canada Permanent Mortgage Corp. v. 
 
 East Selkirk 21 M.R. 750 673 
 
 V. 16 M.R. 618 672 
 
 Canada Port Huron Co., Brown v 15 M.R. 638 906 
 
 Canada Settlers' Loan Co. v. FuUerton. . 9 M.R. 327 1150 
 
 Canada Supply Co. v. Robb 20 M.R.' 33 485 
 
 Canada Traders, Re Cass and McDermid 
 
 and 20 M.R. 139 1010 
 
 Canadian Bank of Commerce, Cox v. .. . 21 M.R. 1 93 
 
 v.. . .46 S.C.R. 564 93 
 
 Federal Bank v. 2 M.R. 257 584 
 
 i ; V. 13 S.C.R. 384 584 
 
 — Hector v 11 M.R. 320 945 
 
 — V. Northwood . 5 M.R. 342 264 
 
 Canad'an Cc-op. Tnvt. Co., Campbell «... 16 M.R. 464 797 
 
 Canadian Fairbanks Co. v. Johnston- . . 18 M.R. 589 1189 
 
 Canadian Moline Plow Co. v. Cook .... 13 M.R. 439 1148 
 
 Canad'an Northern Ry. Co., Anderson v. 20 M.R. 19 994 
 
 — V. 21 M.R. 121 781 
 
 — V. 45 S.C.R: 355 781 
 
 Re Blackwood and 20 M.R. 113 982 
 
 — Blackwood v 20 M.R. 161 971 
 
 Callan v 19 M Jl. 141 • 972 
 
 Calvert v 18 M.R. 307 249 
 
 Carr v 17 M.R. 178 15 
 
 — ■ Clayton v 17 M.R'. 426 983 
 
 — ■ Cousins V 18 M.R. 320 879 
 
 Dreger v 15 M.R. 386 987 
 
 ■ — Ferris v 15 M.R. 134 975 
 
xxii TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Canadian Northern Ry. Co, Gordanier v. 15 M.R. 1 408 
 
 Guay V 15 M.R. 275 995 
 
 Hayward v 16 M.R. 158 991 
 
 Johnson «; 19 M.R. 179 659 
 
 Parks V 21 M.R. 103 984 
 
 Pedlar v 18 M.R. 625 993 
 
 V 20 M.R. 265 993 
 
 and Robinson, Re . . 17 M.R. 396 979 
 
 — . . 17 M.R. 579 258 
 
 Robinson v 19 M.R. 300 1003 
 
 r— V 43 S.C.R. 387 1003 
 
 V [1911] A.C. 739 1003 
 
 Royle V 14 M.R. 275 978 
 
 — Skulak V 20 M.R. 242 992 
 
 Strathclair v. 21 M.R. 555 970 
 
 — Sutherland v 21 M.R. 27 1002 
 
 - — White t; 20 M.R. 57 779 
 
 Winnipeg Oil Co. v. 21 M.R. 274 990 
 
 Canadian Pacific Ry. Co., Re 7 M.R. 389 , 121 
 
 Argyle v 14 M.R. 382 119 
 
 V 35 S.C.R. 550 120 
 
 Atkin V 18 M.R. 617 989 
 
 r— Bain u 15 M.R. 544 947 
 
 —— — - V 16 M.R. 391 990 
 
 — Barrett v 16 M.R. 549 1004 
 
 — V. 16 M.R. 558 1004 
 
 Re Batter and 13 M.R. 200 980 
 
 Bennetto v 18 M.R. 13 979 
 
 Brown v 3 M.R. 496 974 
 
 V 4 M.R. 396 173 
 
 Burdett v 10 M.R. 5 976 
 
 V. Burnett 5 M.R. 395 121 
 
 Re Chambers and ... . 20 M.R. 277 971 
 
 — ■ V. Calgary 5 M.R. 37 1068 
 
 Carruthers v 16 M.R. 323 987 
 
 V 39 S.C.R. 251 987 
 
 V. Cornwallis 7 M.R. 1 1084 
 
 — V. — 19 S.C.R. 702 1084 
 
 Douglas Lots, Re.. .... 6 M.R. 598 1020 
 
 Ferris v 9 M.R. 501 986 
 
 — — V. Forsyth 3 M.R. 45 581 
 
 — — Fraser v 4 W.L.R. 525 408 
 
 ^ V 5 W.L.R. 42 408 
 
 V 17 M.R. 667 562 
 
 Gaudry v 11 M.R. 69 / - 857 
 
 — Harvey v 3 M.R. 43 250 
 
 r V. 3 M.R. 266 396 
 
 Henry v 1 M.R. 210 977 
 
TABLE OF CASES DIGESTED. 
 
 Volume, 
 
 Canadian Pacific Ry. Co., Holmes v 5 M.R. 
 
 • Kellett V 16 M.R. 
 
 Lechtzier v 14 M.R. 
 
 Louise, Mun. oi v 14 M.R. 
 
 Makarsky v 15 M.R. 
 
 -> — ■ andProv. of Manitoba.. 9 C.L.T. 
 
 ■ ■ Moggy V 3 M.R. 
 
 Manitoba Mortgage and 
 
 Investment Co. «;. 1 M.R. 
 
 McCaffrey v 1 M.R. 
 
 McCormick v 19 M.R. 
 
 McDonald v 7 M.R. 
 
 ■■ McFie V 2 M.R. 
 
 McGinney v 7 M.R. 
 
 McKellar v 14 M.R. 
 
 t>. N. P. R 5 M.R. 
 
 '- ■ — North Cypress v 14 M.R. 
 
 V 35 S.C.R. 
 
 Pearson, v 12 M.R. 
 
 Phillips V 1 M.R. 
 
 — — Rajotte V 5 M.R. 
 
 V 5 M.R. 
 
 Ro&,ch V 1 M.R. 
 
 Savage v 15 M.R. 
 
 V 16 M.R. 
 
 — — V 16 M.R. 
 
 Shaw V 5 M.R. 
 
 — — V 5 M.R. 
 
 ■ V 16 S.C.R. 
 
 ■ ■ — Schellenburg v 16 M.R. 
 
 School District of Spring- 
 dale V 14 M.R. 
 
 — • V. 35 S.C.R. 
 
 p — — — Trustees of Win- 
 nipeg V 2 M.R. 
 
 — Scott V 19 M.R. 
 
 V 19 M.R, 
 
 • Street v. 18 M.R. 
 
 — ■ Tait V 16 M.R. 
 
 ■ : Wallman v 16 M.R. 
 
 — Western Canada Flour 
 
 Mills Co. 2; 20 M.R. 
 
 ■ White V 6 M.R. 
 
 ■ Wicher v 16 M.R. 
 
 — ■ Winnipeg v 12 M.R. 
 
 — V 30 S.C.R. 
 
 , Wood V 20 M.R. 
 
 ■ V 47 S.C.R. 
 
 
 ) 
 xxiii 
 
 
 Column 
 
 
 of Digest. 
 
 346 
 
 866 
 
 391 
 
 990 
 
 566 
 
 612 
 
 1 
 
 33 
 
 53 
 
 1262 
 
 126 
 
 187 
 
 209 
 
 978 
 
 285 
 
 737 
 
 350 
 
 974 
 
 159 
 
 600 
 
 423 
 
 948 
 
 6 
 
 982 
 
 151 
 
 995 
 
 614 
 
 986 
 
 301 
 
 561 
 
 382 
 
 119 
 
 550 
 
 120 
 
 112 
 
 1260 
 
 110 
 
 978 
 
 297 
 
 601 
 
 365 
 
 785 
 
 158 
 
 977 
 
 401 
 
 950 
 
 376 
 
 877 
 
 381 
 
 950 
 
 198 
 
 850 
 
 334 
 
 851 
 
 703 
 
 851 
 
 154 
 
 987 
 
 382 
 
 119 
 
 550 
 
 120 
 
 163 , 
 
 966 
 
 29 
 
 787 
 
 165 
 
 788 
 
 334 
 
 777 
 
 391 
 
 990 
 
 82 
 
 787 
 
 422 
 
 892 
 
 169 
 
 977 
 
 343 
 
 982 
 
 581 
 
 771 
 
 558 
 
 771 
 
 92 
 
 785 
 
 403 
 
 785 
 
f 
 
 xxiv TABLE OF CASES DIGESTED. 
 
 ■ Column 
 
 Volume. of Digest. 
 
 Canadian Pacific Ry. Go., Young v 1 M.R. 205 ' 975 
 
 Canadian Port Huron Co. v. Burnett . . 17 M.R. 55 329 
 
 Canadian' Ry. Accident Ins. Co., Ha' nes t). 20 M.R. 69 5 
 
 V. 44 S.C.R. 386 5 
 
 y. Kelly 16 M.R. 608 1095 
 
 V. 17 M.R. 645 401 
 
 Canadian Rubber Co.. Bertrand v 12 M.R. 27 499 
 
 Camion, Bates v ' 18 M.R. 7 496 
 
 Cantelon, GuUivan v. . . . : 16 M.R. 644 884 
 
 Carberry Elevator Co., Harrison v V W.L.R. 535 733 
 
 Carberry Gas Co. v. Hallett 17 M.R. 525 521 
 
 Cardiff, Brayfield t; 9 M.R. 302 343 
 
 Carey and Lot 65, Re... 9 M.R. 483 1079 
 
 Curran v....'. 4 M.R. 450 261 
 
 Osborne i; '. . . 5 M.R. 237 480 
 
 V. Wood 2 M.R. 32 417 
 
 V. 2 M.R. 290 1141 
 
 Carley, Merchants Bank v. 8 M.R. 258 415 
 
 — Sparham v. ...:.. 7 M.R. 611 876 
 
 v...... 8 M.R. 246 83 
 
 v.: 8 M.R. 448 334 
 
 Carman, Tie .' 20 M.R. 500 651 
 
 — Re Fisher and 15 M.R. 475 297 
 
 ._ 16 M.R. 560 766 
 
 — N. W. Farmer v 6 M.R. 118 516 
 
 Carr v. C. N. R. ...... : 17 M.R. 178 15 
 
 Carriere, Rex «) 14 M.R. 52 295 
 
 Carroll v. McViea ■. 15 M.R. 379 694 
 
 Carruthers v. Carruthers 21 M.R. 781 1241 
 
 «. C. P. R 16 M.R. 323 987 
 
 — — • V. 39 S.C.R. 251 987 
 
 '— V. Fischer 5 W.L.R. 42 925 
 
 — V. Hamilton Provident 12 M.R. 60 'i21 
 
 V. Waterous 4 M.R. 402 1099 
 
 Carscaden, Molson's Bank v 8 M.R. 451 376 
 
 — V. Philion 9 M.R. 135 676 
 
 — '■ V. Zimmerman... 9 M.R. 102 416 
 
 —^ v.. -...' 9 M.R. 178 414 
 
 Carstens, Robertson v 18 M.R. 227 916 
 
 Carter t;. Rogers 19 C.L.T. Occ. N. 410 ' 404 
 
 Cartier Election, Re 4 M.R. 317 355 
 
 Case V. Bartlett 12 M.R. 280 1040 
 
 V. Laird 8 M.R. 204 1063 
 
 J, 8 M.R. 461 603 
 
 V. Stephens : 6 M.R. 552 620 
 
 Threshing Machine Co., Graham v. 19 M.R. 27 199 
 
 t,. Wermiger 17 M.R. 52 387 
 
TABLE OF CASES DIGESTED. xxv 
 
 Column 
 Volume. of Digest. 
 
 Cass V. Couture 14 M.R. 458 566 
 
 V. McCutcheon 14 M.R. 458 566 
 
 : „. 15 M.R. 667. 862 
 
 V. '....' 15 M.R. 669 862 
 
 and McDermid and Canada Traders, 
 
 Re 20 M.R. 139 1010 
 
 Caswell and South Norfolk, Re 15 M.R. 620 657 
 
 Cauchon, Green v 3 M.R. 248 733 
 
 — — Winnipeg v T.W. 350 429 
 
 Cavelier, Reg. v 11 M.R. 333 313 
 
 Central Canada Ins. Co., Patterson u.... 20 M.R. 295 451 
 
 — — ■ Electric Co. -v. . Simpson 8 M.R. 94 1153 
 
 Garage Co., Gas Power Age v. 21 M.R. 496 839 
 
 Chadwick, Gibbins v 8 M.R. 209 , 953 
 
 — — V 8 M.R. 213 41 
 
 Gibbons » 9 M.R. 474 899 
 
 — V 14 C.L.T. Occ. N. 9 899 
 
 V. Hunter 1 M.R. 39 695 
 
 _ V. 1 M.R. 109 1139 
 
 — V. 1 M.R. 363 697 
 
 • Re O'Connor and T.W. 293 646 
 
 Chalmers v. Freedman 18 M.R. 523 610 
 
 — Johnson v 19 M.R. 255 507 
 
 Quintal v 12 M.R. 231 1176 
 
 Chamberlain, Reg. v 10 M.R. 261 831 
 
 Chambers, Re Bain and. . . . .... 11 M.R. 550 1026 
 
 and C. P. R., Re 20 M.R. 277 971 
 
 — - Foulds V 11 M.R. 300 519 
 
 Hanbury v 10 M.R. 167 834 
 
 Hughes V 14 M.R. 163 143 
 
 — -^ Leacock v 3 M.R. 645 58, 483 
 
 Chambre, Ferguson v 2 M.R. 184 413 
 
 V. y 2 M.R. 186. 353 
 
 ■ V 3 M.R. 574 417 
 
 Champion, McKenzie v 4 M.R. 158 921 
 
 — V 12 S.C.R. 649 921 
 
 Charette, St. Germain v 13 M.R. 63 1102 
 
 Charlebois v. Great N. W. Central Ry. Co. 9 M.R. 1 997 
 
 9 M.R. 60 1095 
 
 V. — ^9 M.R. 286 1138 
 
 V. 11 M.R. 135 1000 
 
 ^ ■ McDonald v 7 M.R. 35 866 
 
 Charrest v. Manitoba Cold Storage Co. 17 M.R. 539 73 
 
 V. ■ 42 S.C.R. 253 73 
 
 Chaz V. Les Cisterciens Reformes 12 M.R. 330 444 
 
 Checkik v. Price 18 W.L.R. 253 1057 
 
 Chester, Gerrie v 5 M.R. 258 38 
 
 Chevrier, Gowans v. . . . 7 M.R. 62 490 
 
xxvi TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Chevrier v. Parmenter 7 M.R. 194 800 
 
 Chisholm, Labatt v 7 M.R. 502 960 
 
 Reg. V 7 M.R. 613 284 
 
 Choderker v. Harrison 20 M.R. 727 610 
 
 Choney, Rex «; 17 M.R. 464 287 
 
 Christie, Re 20 M.R. 120 823 
 
 ^ McCaul V 15 M.R. 358 888 
 
 V. McKay. 15 M.R. 612 819 
 
 Chubbuck, Grisdale v. 1 M.R. 202 404 
 
 City of London Fire Ins. Co., Morrison v. 6 M.R. 222 946 
 
 : V. 6 M.R. 225 446 
 
 Clark,- Barr i; 5 M.R. 130 37 
 
 Dauphinais v 3 M.R. 225 607 
 
 V. Everett 1 M.R. 229 1198 
 
 Guthrie » ; 3 M.R. 318 1197 
 
 — Maxwell v ; 10 M.R. 406 954 
 
 Rogers t) 13 M.R. 189 847 
 
 Rose V 21 M.R. 635 795 
 
 y. Waterloo Manufacturing Co.... 20 M.R. 289 1062 
 
 Clarke, Burt t; 5 M.R. 150 822,1034 
 
 V. Murray T.W. 119 279 
 
 V. — T.W. 127 325 
 
 -r- McMicken v T.W. 157 520 
 
 V. Scott 5 M.R. 281 531 
 
 V. Winnipeg T.W. 56 207, 850 
 
 Clay V. Gill 12 M.R. 465 481 
 
 Clayton t). C. N. R 17 M.R. 426 983 
 
 Cleave, Humphreys v 15 M.R. 23 687 
 
 Cleaver v. Mun. of Blanchard 4 M.R. 464 801 
 
 Clegg, Rex « 18 M.R. 9 714 
 
 Clement, Brydges i; • 14 M.R. 588 " 924 
 
 — • Imperial Loan & Inv. Co. v. . 11 M.R. 428 611 
 
 r- : V. . 11 M.R. 445 611 
 
 Kirchhoffer v 11 M.R. 460 133, 863 
 
 Lambert v 11 M.R. 519 1108 
 
 Massey Man. Co. t; 9 M.R. 359 1110 
 
 Mowat V 3 M.R. 585 139 
 
 Clemeuts, Dewar v 20 M.R. 212 606 
 
 V. Fairchild Co 15 M.R. 478 195 
 
 McPhail V 1 M.R. 165 1064 
 
 Clemons v. St. Andrews 11 M.R. Ill 1085 
 
 v: — 11 M.R. 245 ■ 246 
 
 Clifford V. Logan 9 M.R. 423 131 
 
 Clough, Locators v 17 M.R. 659 917 
 
 Clougher, Allan v 12 M.R. 327 255 
 
 Lynch v 1 M.R. 293 60 
 
 V. Scoones 3 M.R. 238 577 
 
 Qoutier, Re 11 M.R. 220 765 
 
TABLE OF CASES DIGESTED. xxvii 
 
 Column 
 Volume. of Digest. 
 
 Cloutier v. Georgeson 13 M.R. 1 427 
 
 Reg. V 12 M.R. 183 307 
 
 Coates, Gibson f 1 W.L.R. 556 98 
 
 V. Pearson 16 M.R. 3 869 
 
 Coburn i;. McRobie 9 M.R. 375 1109 
 
 Cochrane Man. Co. v. Harmer 3 M.R. 449 254 
 
 «. McFarlane 5 M.R. 120 576 
 
 Cockerill v. Harrison 14 M.R. 366 385 
 
 Codd, Howland v , 9 M.R 435 1152 
 
 Codville, Re 16 M.R. 426 328 
 
 V. Fraser 14 M.R. 12 494 
 
 V. Pearce 13 M.R. 468 424 
 
 Colby, Hutchinson v 12 M.R. 307 30 
 
 Coldwell, Sifton v 11 M.R. 653 1105 
 
 Collin, Lake of the Woods Milling Co. v. 13 M.R. 154 513 
 
 Collins, Reg. t) 5 M.R. 136 236 
 
 V. Ross 7 M.R. 581 356 
 
 V. 20 S.C.R. 1 356 
 
 CoUom V. McGrath 15 M.R. 96 167 
 
 Colquhoun v. DriscoU 10 M.R. 254 1081 
 
 V. Seagram 11 M.R. 339 498 
 
 Colwell V. Neufeld 19 M.R. 517 1184 
 
 - V. 1 W.W.R. 779 1184 
 
 Comber v. Le May T.W. 35 277 
 
 Commercial Bank of Manitoba, Re ... . 9 M.R. 342 1247 
 
 — — V. Allan 10 M.R. 330 102 
 
 — Re Barkwell's Claim.. 11 M.R. 494 799 
 
 — V. Bissett .' 7 M.R. 586 102, 912 
 
 Re Claims for Interest 10 M.R. 187 81 
 
 Gillies V 9 M.R. 165 815 
 
 ■ V 10 M.R. 460 80- 
 
 — — — Banque d'Hochelaga's Case 10 M.R. 171 75 
 
 — Robertson's Claim. ... 10 M.R. 61 1253 
 
 — V. Rokeby 10 M.R. 281 350 
 
 Commercial Union Ass. Co., Rogers v. . . 10 M.R. 667 52 
 
 Conboy, Doll 9 M.R. 185 539 
 
 Condon, Bank of Montreal v. 11 M.R. 366 485 
 
 Confederation Life Ass. y. Merchants Bank 10 M.R. 67 711 
 
 -^— ■—, Re Moore and .. 9 M.R. 453 1019 
 
 V. Moore 6 M.R. 162 1233 
 
 , Cong egational Church, Cummins v 4 M.R. 374 146 
 
 Conklin, Farmers' and Traders' Loan Co. y. 1 M.R. 181 461 
 
 — Halsted v. ... ■. 3 M.R. 8 883 
 
 -— Martindale v 1 M.R. 338 ' 1097 
 
 Conley v. Wellband 3 M.R. 207 816 
 
 Conn, Huxtabh v 11 M.R. 713 274 
 
xxviii TABLE OP CASES DIGESTED. 
 
 , "■ Column 
 
 ^ Volume. of Digest. 
 
 Comiell, London & Canadian L. & A. Co. I). 11 M.R. 115 425 
 
 Connerv, Flour City Bank v 12 M.R. 305 1149 
 
 Otto V 16 M.R. 532, 514 
 
 Conway v. Scott 3 M.R. 557 1043 
 
 v.— 3 M.R. 636 1043 
 
 Co.k, Canadian Moline Plow Co. v. . . . 13 M.R. 439 1148 
 
 V. Thomas 6 M.R. 286 1226 
 
 Coombs, Hooper v 4 M.R. 35 547 
 
 — V 5 M.R. 65 547 
 
 Cooper y. McDonald 19 M.R. 1 95 
 
 Whitham v 2 M.R. 11 490 
 
 Copeland-Chatterson Co. v. Hickok . . 16 M.R. 610 198 
 
 Copeland v. Hamilton 9 M.R. 143 1226 
 
 Copelin v. Cairns 19 M.R. 509 1100 
 
 Corbett, McRae v 6 M.R. 426 1072 
 
 — — V 6 M.R. 536 45 
 
 Cordingly, Haffner v 18 M.R. 1 918 
 
 - — — ^ «;. Johnson.. 11 M.R. 4 1098 
 
 Coristihe v. Menzi^s 2 M.R. 84 6 
 
 Cornish, Bank of Montreal v T.W. 272 468, 636 
 
 — ^ , London Guarantee &c. Co. «; 17 M.R. 148 227 
 
 Cornwallis, C. P. R. i- 7 M.R. 1 1084 
 
 ^ — V 19 S.C.R. 702 1084 
 
 Corporation Archiepiscopale de St. Boni- 
 face, Springfield v 10 M.R. 615 1158 
 
 Corrigal, Macdpnald v.- 9 M.R. 284 ■ 1232 
 
 Cosentino «;. Dominion Express Co 16 M.R. 563 71 
 
 Cotter, Re .14 M.R. 485 723 
 
 V. Osborne 16 M.R. 395 563 
 
 V. — 17 M.R. 164 894 
 
 -. V. 17 M.R. 248 193 
 
 V. 18 M.R. 471 1169 
 
 — V. 19 M.R. 145 377 
 
 Couch v'. Mun. of Louise 16 M.R. 656 759 
 
 Coulter, Re 11 M.R. 428 611 
 
 — — Reg. V 4 M.R. 309 644 
 
 Coulthard, Hime v 20 M.R. 164 65 
 
 Counsel, Re Her Majesty's 8 M.R. 155 ' 968 
 
 Coupez V. Lear 16 W.L.R. 401 1125 
 
 V. .' 20 M.R. 238 1222 
 
 Cousins j;. C. N. R. 18 M.R. ,320 879 
 
 Couture, Cass v ! . . . .- 14 M.R. 458 566 
 
 V. Dominion Fish Co 18 M.R. 468 11 
 
 V. 19 M.R. 65 660 
 
 — V. McKay 6 M.R. 273 1143 
 
 Couzens, Winnipeg Saturday Post, Ltd., v. 21 M.R. 562 567 
 
 Cowan V. Britton 3 M.R. 175 396 
 
TABLE OF CASES DIGESTED. xxix 
 
 Column 
 Volume. of Digest. 
 
 Cowan V. Drummond 14 C.L.T. Occ. N. 24 403 
 
 V. 7 M.R. 575 944 
 
 Cox V. Canadian Bank of Commerce... . 21 M.R. 1 93 
 
 V. . ..46 S.C.R. 564 90 
 
 «;. Schack 14 M.R. 174 143 
 
 Craig, Abell v. 12 M.R. 81 32 
 
 Crawford v. Duffield 5 M.R. 121 620 
 
 V. 7 C.L.T. Occ. N. 93 1090 
 
 Fairchild v 11 M.R. 330 869 
 
 V. Morton 7 C.L.T. Occ. N. 93 1090 
 
 Crayston v. Massey-Harris Co 12 M.R. 95 " 267 
 
 Credit Foncier Franco-Canadien v. Andrew 9 M.R. 65 719 
 
 !). Schultz 9 M.R. 70 720 
 
 V. 10 M.R. 158 728 
 
 V. 10 M.R. 417 837 
 
 Creighton v. Pacific Coast Lumber Co... 12 M.R. 546 1059 
 
 Cross, Douglas v 12 M.R. 534 35 
 
 and Gladstone, Re ' 15 M.R. 528 653 
 
 Glines v 12 M.R. 442 925 
 
 Crossen, Reg. v 12 M.R. 571 294 
 
 Crossland, Moore v 6 W.L.R. 199 792 
 
 Crothers v. Louise 10 M.R. 523 960 
 
 ■ V. Monteith 11 M.R. 373 639 
 
 Reg. V : . . . . 11 M.R. 567 638 
 
 Crotty V. Oregon and Transcon. Ry. Co. 3 M.R. 182 461 
 V. Taylor 8 M.R. 188 723 
 
 V. Vrooman 1 M.R. 149 318 
 
 Crown Grain Co., Day v 16 M.R. 366 689 
 
 V 39 S.C.R. 258 689 
 
 — V. — [1908] A.C. 504 182, 689 
 
 Crown Mutual Hail Ins. Co., Re 18 M.R. 51 156 
 
 Crumble v. McEwan 9 M.R. 419 215 
 
 Cuddy, Re . .' 10 M.R. 422 671 
 
 CuUin ;«;. Rinn 5 M.R. 8 550 
 
 Gumming v. Gumming 15 M.R. 640 346 
 
 Cummings, Macdonald v 8 M.R. 406 442 
 
 Cummins v. Trustees of Congregational 
 
 Church 4 M.R. 374 146 
 
 Cunningham, McDonald v 3 M.R. 39 247 
 
 Cuperman v. Ashdown 20 M.R. 424 879 
 
 Curie V. Brandon 15 M.R. 122 755 
 
 Curran v. Carey 4 M.R. 450 261 
 
 - V. North Norfolk. 8 M.R. 256 34, 761 
 
 Currie y. Rapid City Farmers' Elevator Co. 12 M.R. 105 1217 
 
 Curry, First National Bank v 20 M.R. 247 594 
 
 Cursitor, Re 9 M.R. 433 1180 
 
 Curtis V. Richardson 18 M.R. 519 696 
 
XXX TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Curtis, Wark v 10 M.R. 201 817 
 
 Cypress Election, Re 8 M.R. 581 370 
 
 Czuack V. Parker 15 M.R. 456 1208 
 
 D'Aoust, Brock e; 9 M.R. 195 413 
 
 Dahl, Miller t). .. ; 9 M.R. 444 712 
 
 V 10 M.R. 97 10 
 
 Daly, Manitoba Mortgage & Inv. Co. v. 10 M.R. 425 1025 
 
 V. White 5 M.R. 55 1096 
 
 Dalziel v. Homeseekers' Land & Coloniza- 
 tion Co ' 20 M.R. 736 1191 
 
 y. Zastre 19 M.R. 353 28 
 
 Dancey, Calder v 2 M.R. 383 1162 
 
 V 4 M.R. 25 876 
 
 Dandy, Watson v 12 M.R. 175 1033 
 
 Daniels v. Dickson.' 17 M.R. 35 893 
 
 Darling, Grobb t) 17 M.R. 211 936 
 
 Darrell, North-West Thresher Co. v. . . . 15 M.R. 553 1061 
 
 Darroch, Eraser e; 6 M.R. 61 1135 
 
 Dart «. Rogers..... 21 M.R. 721 1206 
 
 Dauphin, Cameron v 14 M.R. 573 963 
 
 Election, Re 21 M.R. 629 346 
 
 Dstuphinais v. Clark 3 M.R. 225 607 
 
 Davidson v. Campbell 5 M.R. 250 695 
 
 Ferguson v 10 M.R. 130 357 
 
 — vs Francis 14 M.R. 141 111 
 
 — — — V. Manitoba &N.W. Land Corp. 14 M.R. 232 914 
 
 V. 34 S.C.R. 255 914 
 
 Reg. V 8 M.R. 325 303 
 
 W.Stuart 14 M.R. 74 661 
 
 V. 34 S.C.R. 215 661 
 
 DaVies v. Winnipeg 19 M.R. 744 784 
 
 Davis V. Barlow 20 M.R. 158 " 814 
 
 V. ■ 21 M.R. 265 192 
 
 Braun v 9 M.R. 534 513 
 
 ■ V 9 M.R. 539 41 
 
 V. Butler : 7 W.L.R. 85 87 
 
 Mcllroy v 1 M.R. 53 472 
 
 V. O'Brien 18 M.R. 79 117 
 
 ^— V. Wright 21 M.R. 716 1220 
 
 Day V. Crown Grain Co 16 M.R. 366 689 
 
 - V. ■ 39 S.C.R. 258 689 
 
 - V. [1908] A.C. 504 182, 689 
 
 V. Rutledge 12 M.R. 290 1075 
 
 V. . r '. 29 S.C.R. 441 1075 
 
 V. 12 M.R. 309 1093 
 
 V. 12 M.R. 451 864 
 
TABLE OF CASES DIGESTED. xxxi 
 
 Column 
 Volume. of Digest. 
 
 Deacon, McDonald v 4 M.R. 452 860 
 
 Dfean and Chapter oii St. John's Cathedral 
 
 V. Macarthur 9 M.R. 391 699 
 
 Dean v. Lehberg 17 M.R. 64 421 
 
 Decarie Man. Co. v. Winnipeg 18 M.R. 663 867 
 
 Decock w. Barrager 19 M.R. 34 200 
 
 Dederick, Ashdown v 2 M.R. 212 885 
 
 V. 4 M.R. 139 141 
 
 V. 4 M.R. 174 1122 
 
 «. 4 M.R. 349 44 
 
 V. 15 S.C.R. 227 141 
 
 Deegan, Reg. v 6 M.R. 81 308 
 
 Deering v. Hayden 3 M.R. 219 6 
 
 Delorme, Patterson v 7 M.R. '594 194 
 
 Dennison, Greer v 21 M.R. 46 1057 
 
 Desaulniers v. Johnston 20 M.R. 64 556 
 
 V. 46 S.C.R. 620 556 
 
 V. 20 M.R. 431 904 
 
 Desjarlais, Hardy v 8 M.R. 401 948 
 
 ^— V. ... 8 M.R. 550 527 
 
 ' Kerr v 8 M.R. 650 527 
 
 V 9 M.R. 278 868 
 
 Devitt V. Winnipeg 16 M.R. 398 769 
 
 Dewar, McArthur v 3 M.R. 72 694 
 
 V. Clements 20 M.R. 212 606 
 
 Dick V. Hughes ... 5 M.R. 259 509 
 
 V. Winkler 12 M.R. 624 608 
 
 . Dickie, Allen v 2 M.R. 61 854 
 
 Dickson, Daniels v 17 M.R. 35 893 
 
 V. Mutual Reserve Fund Life Ass. 7 M.R. 125 903 
 
 Didion, Thompson v 10 M.R. 246 489 
 
 — V 10 M.R. 301 1127 
 
 District Registrar, Winnipeg, Wilson v. . 9 M.R. 215 1019 
 
 Ditch V. Ditch 21 M.R. 507 21 
 
 Dixon V. McKay 12 M.R. 514 423 
 
 V. 24 C.L.T. Occ. N. 28 454 
 
 '. ■ 21 M.R. 762 273, 454 
 
 0. Winnipeg Electric St. Ry. Co.. . 10 M.R. 660 407 
 
 - u. . . 11 M.R. 528 1259 ' 
 
 Dobbin, Sumner v 16 M.R. 151 109 
 
 Dobson V. Leask 11 M.R. 620 1098 
 
 McNaughton v 5 M.R. 315 1141 
 
 Doherty, Aitken v 11 M.R. 624 31 
 
 Doidge v\ Mimms 12 M.R. 618 958 
 
 V. ■. . 13 M.R. 48 543 
 
 Doig V. HoUey 1 M.R. 61 48 
 
 Doll V. Conboy 9 M.R. 185 539 
 
 Hough V 10 M.R. 679 1142 
 
TABLE OF CASES DIGESTED. xxxiii 
 
 Column 
 
 Volume. of Digest. 
 
 Doyle, Ross « 4 M.R. 434 1065 
 
 Drain, Reg. v 8 M.R. 535 283 
 
 Drake, Macdonald v 16 M.R. 220 158 
 
 Dreger v. C. N. R 15 M.R. 386 987 
 
 Dremen, Graham v 9 W.L.R. 641 1219 
 
 DriscoU, Colquhoun v 10 M.R. 254 1081 
 
 Driver, Re Frost and ... 10 M.R. 209 . 1010 
 
 — — 10 M.R. 319 427 
 
 Drummond, Balfour v 9 C.L.T. Occ. N. 201 1030 
 
 V 4 M.R. 388 874 
 
 — — — V 4 M.R. 467 870 
 
 V 5 M.R. 1 248 
 
 V. 5 M.R. 242 > 248 
 
 Cowan V 14 C.L.T. Occ. N. 24 403 
 
 'V 7 M.R. 575 944 
 
 Dysart v 7 M.R. 68 1213 
 
 — ■ Lavalle v 6 M.R. 120 , 1011 
 
 Drysdale Estate, Re 18 M.R. 644 630 
 
 — Watt V 17 M.R. 15 28 
 
 Dubord, Martel V. .. 1 M.R. 174 867 
 
 V 3 M.R. 598 '468 
 
 Pacaud v 3 M.R. 15 669 
 
 Dubrule, Hart v.' 20 M.R. 234 508 
 
 Dudley v. Henderson 3 M.R. 472 647 
 
 Dufferin, Doyle v 8 M.R: 286 649 
 
 V 8 M.R. 294 770 
 
 Duffield, Crawford « 7 C.L.T. Occ. N. 93 1090 
 
 ' n. ■ 5 M.R. 121 620 
 
 Duggan, Rex v 16 M.R. 440 312 
 
 Dujardin, Tellier v 16 M.R. 423 522 
 
 Dulmage v. Douglas 3 M.R. 562 620 
 
 - V. — 4 M.R. 495 620 
 
 Durable, Robertson v 1 M.R. 321 1200 
 
 Duncan ?;. Laughlin 2 M.R. 78 739 
 
 Dundas, Sharps v 21 M.R. 194 232 
 
 Dundee Mortgage Co. v. Peterson 6 M.R. 65 875 
 
 V. ... 6 M.R. 66 474 
 
 • V. Sutherland 1 M.R. 308 873 
 
 Dunkin, Cairns v 6 W.L.R. 256 1213 
 
 Dunlop, Merchants Bank v 9 M.R. 623 89 
 
 Dunn and Expropriation Act, Re 12 M.R. 78 1086 
 
 Dunn V. Sedziak 17 M.R. 484 110 
 
 - Smith V 21 M.R. 583 627 
 
 Toronto General Trusts Cor. v. . . . 20 M.R. 412 69 
 
 Dunsford v. Webster 14 M.R. 529 617 
 
 Dupas, Re '. . . 6 M.R. 477 1092 
 
 12 M.R. 653 895 
 
 — :- Arbuthnot v 15 M.R. 634 935 
 
xxxiv TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Dupuis, Re 17 M.R. 416 805 
 
 Dtirrand v. Forrester ' 18 M.R. 444 667 
 
 Dyck V. Graening 17 M.R. 158 , 130 
 
 Dysart w. Drummond 7 M.R. 68 1213 
 
 E. V. E.^ 15 M.R. 352 18 
 
 Eaket, Saults v 11 M.R. 597 204 
 
 Earl, Reg. v ,. . . 10 M.R. 303 301 
 
 East Selkirk, Canada Permanent v 9 M.R. 331 516 
 
 — V 21 M.R. 750 673 
 
 V 16 M.R. 618 672 
 
 Eastern Judicial District Board v. Winni- 
 peg 3 M.R. 537 590 
 
 ^ — . V. — ^ 4 M.R. 323 591 
 
 Eden v. Eden 6 M.R. 596 257 
 
 Edmunds, Smith v 10 M.R. 240 903 
 
 Edwards, McPherson v 14 W.L.R. 172 391 
 
 V 16 W.L.R. 648 391 
 
 : '■ V 19 M.R. 337 22 
 
 Rex V ':.. '. 17 M.R. 288 300 
 
 Egan, Reg. v 11 M.R. 134 297 
 
 Sheldon v 18 M.R. 221 572 
 
 t;. Simon ' 19 M.R. 131 926 
 
 Eggertson v. Nicastro 21 M.R. 256 486 
 
 Election Cases, Assiniboia 4 M.R. 328 365 
 
 4 M.R. 346 1092 
 
 ■■ 14 W.L.R. 392 814 
 
 — Beautiful Plains 10 M.R. 130 357 
 
 Brandon 8 M.R. 505 366 
 
 9 M.R. 511 . 372 
 
 '■ 16 M.R. 249 363 
 
 Cartier 4 M.R. 317 355 
 
 — Cypress 8 M.R. 581 370 
 
 Dauphin '. 21 M.R. 629 346 
 
 Emerson 4 M.R. 287 368 
 
 Kildonan and St. Paul . 4 M.R. 252 364 
 
 — Laverandrye 1 M.R. 11 356 
 
 4 M.R. 514 367 
 
 Lisgar 7 M.R. 581 356 
 
 14 M.R. 310 360 
 
 13 M.R. 478 362 
 
 — 16 M.R. 249 .363 
 
 — 20 S.C.R. 1 356 
 
 Lome 4 M.R. 275 356 
 
 — r Marquette 11 M.R. 381 354 
 
TABLE OF CASES DIGESTED. xxxv 
 
 Column 
 Volume. of Digest. 
 
 Election Cases, Marquette 27 S.C.R. 219 354 
 
 ^^ , Morris 6 W.L.R. 742 374 
 
 — 17 M.R. 330 366 
 
 Macdonald .... 17 C.L.T. Occ. N. 159 372 
 
 ' 11 M.R. 398 355 
 
 North Dufferin ' 4 M.R. 259 813 
 
 — 4 M.R. 280 , 368 
 
 ■ Poi-tage la Prairie 16 M.R. 249 363 
 
 Provencher 13 M.R. 444 371 
 
 Rockwood 2 M.R. 129 364 
 
 Rosenfeldt 13 M.R. 87 369 
 
 Selkirk 16 M.R. 249 363 
 
 ^ Shoal Lake 5 M.R. 57 365 
 
 St. Andrews... . 7 C.L.T. Occ. N. 277 367 
 
 ■ 4 M.R. 514 367 
 
 St. Boniface 8 M.R. 446 366 
 
 — — 8 M.R. 474 371 
 
 13 M.R. 75 370 
 
 ■ West Brandon .7 C.L.T. Occ. N. 301 370 
 
 Election Petitions, Rules relating to ... . 8 M.R. 609 
 
 ^ — .... 11 M.R. 662 
 
 Elliott V. Beech 3 M.R. 213 88 
 
 y. Hogue 3 M.R. 674 880 
 
 — V. May 11 M.R. 306 955 
 
 V. Robertson 10 M.R. 628 895 
 
 Union Bank v 14 M.R. 187 36 
 
 ■ — V. Wilson 6 M.R. e3 874 
 
 — Re and Winnipeg 11 M.R. 358 762 
 
 - Wright V 21 M.R. 337 895 
 
 Ellis, Sunpson v T.W. 31 324 
 
 Ehnshurst, McRa -. v 18 M.R. 315 655 
 
 Emerson Election, Re 4 M.R. 287 368 
 
 Emerson u. Forrester 19 M.R. 665 269 
 
 — V. Wright 5 M.R. ?65 1027 
 
 V. 14 M.R. 636 761 
 
 Emes, Burridge v 2 M.R. 232 809 
 
 Emperor of Russia v. Proskouriakoff ... 18 M.R. 56 597 
 
 V. ... .42 S.C.R. 226 • 597 
 
 — ;;. 18 M.R^ 143 44 
 
 Empire Brewing Co., Re 8 M.R. 424 1249 
 
 — — V. Harley 7 M.R. 416 888 
 
 Empire Sash & Door Co. v. Maranda .. 21 M.R. 605 498 
 Emplpyers' Liability Ass. Corp., Globe 
 
 Savings & Loan Co. v 13 M.R. 531 939 
 
 Enright, Von Ferber v 19 M;R. 383 946 
 
 Ens, Morden Woolen Mills v 17 M.R. 557 151 
 
 Equity Fire Ins. Co., Rat Portage Lumber 
 
 Co. t) 17 M.R. 33 877 
 
xxxvi TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Evans t;. Balfour 3 M.R. 243 948 
 
 V. Boyle 5 M.R. 152 1097 
 
 Everett, Clark f 1 M.R. 229 1198 
 
 Ewart V. Hanover 8 M.R. 216 245 
 
 Expropriation Act, Re Dunn and 12 M.R. 78 1086 
 
 Eyre V. McFarlane 19 M.R. 645 635 
 
 Fahey, O'Connor v '. 12 M.R. 325 10 
 
 Fair v. O'Brien 3 M.R. 680 1099 
 
 Fairbanks v. Douglas 5 M.R. 41 739 
 
 Fairchild, Clements v 15 M.R. 478 195 
 
 V. Crawford 11 M.R. 330 869 
 
 t). Lowes 8 M.R. 527 887 
 
 Macdonald v 19 M.R. 129 870 
 
 V. Rustin 17 M.R. 194 218 
 
 V. 39 S.C.R. 274 218 
 
 Fairclough t;. Smith 13 M.R. 509 697 
 
 Farmer, v. Livingstone 5 S.C.R. 221 320 
 
 British Canadian Loan Co. v. . . 15 M.R. 593 1032 
 
 Farmers' and Mechanics' Bank v. 
 
 Dominion Coal Co 9 M.R. 542 97 
 
 & Traders' Loan Co. v. Conklin. 1 M.R. 181 461 
 
 Trading Co., Imperial Bank v. . 13 M.R. 412 165 
 
 Fawcett v. Ferguson 13 W.L.R. 572 782 
 
 Reg. V. ...- 13 M.R. 205 347 
 
 Federal Bank v. Can. Bank of Commerce 2 M.R. 257 584 
 
 V. 13 S.C.R. 384 584 
 
 Fedorenko, Re (No. 1) 20 M.R. 221 434 
 
 Re (No. 2) 20 M.R. 224 434 
 
 ^ [1911] A.C. 735 434 
 
 Feneron «. O'Keefe 2 M.R. 40 678 
 
 Fensom v. Bulman 17 M.R. 307 208 
 
 Ferguson v. Bryans 15 M.R. 170 495 
 
 - V. Chambre 2 M.R. 184 413 
 
 V. — • 2 M.R. 186 353 
 
 V. 3 M.R. 574 417 
 
 V. Davidson 10 M.R. 130 357 
 
 Estate, Re 18 M.R. 532 1242 
 
 Fawcett v 13 W.L.R. 572 782 
 
 Sawyer & Massey Co. ?; 20 M.R. 451 221 
 
 Fernie v. Kennedy 19 M.R. 207 835 
 
 Ferris v. C. N. R 15 M.R. 134 975 
 
 t). C.P.R 9 M.R. 501 986 
 
 Ferry, GowenLck v 11 M.R. 257 40, 835 
 
 Festing v. Hunt 6 M.R. 381 214 
 
 Finlay, Rex i; 13 M.R. 383 269 
 
TABLE OF CASES DIGESTED. xxxvii 
 
 Column 
 
 Volume. of Digest. 
 
 First National Bank v. Curry 20 M.R. 247 594 
 
 : V. McLean. . . ..... 16 M.R. 32 96 
 
 Fischel v. Townsend 1 M.R. 99 64 
 
 Fischer, Carruthers v 5 W.L.R. ■ 42 925 
 
 Fish «;. Higgins 2 M.R. 65 138 
 
 Fisher t)-. Brock. 8 M.R. 137 502 
 
 and Brown, Re 1 M.R. 116 53 
 
 and Carman, Re 15 M.R. 475 297 
 
 < 16 M.R. 560 766 
 
 Fisher v. Jukes 20 M.R. 331 45 
 
 Man. Farmers' Mutual Hail v. . . . 14 M.R. 157 773 
 
 Fitch «. Murray.... T.W. 74 386,437,437 
 
 Flack V. Jeffrey . 10 M.R. 514 689 
 
 Flanagan, McAnneary v 3 M.R. 47 260 
 
 Fleming, Wallace v 20 M.R. 705 741 
 
 Fletcher, McKenzie v.. 11 M.R. 540 1023 
 
 Flour City Bank v. Connery 12 M.R. 305 1149 
 
 Foley V. Buchanan 18 M.R. 296 865 
 
 Newton v 20'M.R. 519 58 
 
 FoUansby v. McArthur T.W. 4 679 
 
 Follis, Monkman v 5 M.R. 317 1175 
 
 Fonseca, Atty. Gen. v 5 M.R. 173 322 
 
 V 5 M.R. 300 1092 
 
 — • — V 17 S.C.R. 612 323 
 
 Fonseca v. Jones 19 M.R. 334 406 
 
 V. — 21 M.R. 168 332 
 
 V. Lake of Woods Milling Co... 15 M.R. 413 776 
 
 Mercer v 2 M.R. 169 400 
 
 V. MacDonald 3 M.R. 413 1036 
 
 — — McMicken t) 6 M.R. 370 1134 
 
 , V. Schultz 7 M.R. 458 1087' 
 
 Foorsen, Brett v 17 M.R. 241 168 
 
 Foote V. Mun. of Blanchard 4 M.R. 460 1159 
 
 Forbes, Stobart v 13 M.R. 184 155 
 
 Forest v. Gibson : 6 M.R. 612 734 
 
 Forrest v. Great N. W. Central Ry. Co. 12 M.R. 472 153 
 ■ Les Soeurs de la Charite v. . . . 20 M.R. 301 250 ' 
 
 - V. Winnipeg 18 M.R. 440 784 
 
 Forrester, Durrand v 18 M.R. 444 667 
 
 ■ — Emerson v 19 M.R. 665 269 
 
 Forsyth, C. P. R. v 3 M.R. 45 581 
 
 Fortier, Bailey v 3 M.R. 670 262 
 
 D.Gregory.. 1 M.R. 25 1162 
 
 — V. Shirley. , 2 M.R. 269 1197 
 
 Fortune, Moore v 2 M.R. 28 853 
 
 V...: 2 M.R. 94 876 
 
 Foster v. Lansdowne. . ., 12 M.R. 41 , 896 
 
xxxviii TABLE OF CASES DIGESTED." 
 
 Column 
 Volume. of Digest. 
 
 Foster v. Lansdowne 12 M.R. 42 752 
 
 — i). 12 M.R. 416 753 
 
 V. Stiffler 19 M.R. 533 1192 
 
 Foulds, Re 9 M.R. 23 555 
 
 V. Bowler 8 W.L.R. 189 1239 
 
 ■ , ' V. Chambers 11 M.R. 300 519 
 
 V. Foulds 12 M.R. 389 894 
 
 Foulkes, Rex i; 17 M.R. 612 296 
 
 Fox V. Allen 14 M.R. ^^58 1232 
 
 Fi-ancis, Davidson v 14 M.R. l4l 111 
 
 iurner v 10 M.R. 340 628 
 
 V 25 S.C.R. 110 628 
 
 irank, Schultz v 8 M.R. 345 1015 
 
 Franklin, Phelan v 15 M.R. 520 698 
 
 Fraser «. C. P. R 4 W.L.R. 525 408 
 
 V. 5 W.L.R. 42 408 
 
 • V. 17 M.R. 667 562 
 
 Codville V 14 M.R. 12 494 
 
 V. Darroch 6 M.R. 61 1135 
 
 V. Douglas 16 M.R. 484 525 
 
 Douglas V 17 M.R. 439 540 
 
 V 40 S.C.R. 384 54Q 
 
 McDonald v 14 M.R. 582 609 
 
 — ' O'Donohue 4 M.R. 469 266 
 
 Sweet V 13 M.R. 147 826 
 
 V. Sutherland 15 C.L.T. Occ' N. 17 321 
 
 ' Fredkin v. Glines 11 W.L.R. 318 255 
 
 v.— — ■ 18 M.R. 249 528 
 
 Free Press. See Manitoba Free Press. . 
 
 Freeborn v. Singer Sewing Machine Co. 2' M.R. 253 623 
 
 Freedman, Chalmers v ' 18 M.R. 523 610 
 
 Freehold Loan Co. v. McArthur 5 M.R. 207 1115 
 
 — V. McLean 8 M.R. 116 720 
 
 — V. • 8 M.R. 334 389 
 
 V. 9 M.R. 15 736 
 
 Freeman, Bryan v 7 M.R. 57 124 
 
 French v. Martin 13 C.L.T. Occ. N. 159 40 
 
 — V. 8 M.R. 362 507 
 
 Friesen v. Smith 8 M.R. 131 271 
 
 Froese, Ritz v 12 M.R. 346 84* 
 
 Frontenac Loan Co. v, Morice 3 M.R. 21 564 
 
 — — ■ V. 4 M.R. 442 11 
 
 V. — 3 M.R. 462 11 
 
 V. 4 M.R. 439 246 
 
 Frost and Driver, Re 10 M.R. 209 1010 
 
 10 M.R. 319 427 
 
 Fuller, Hopkins^ v 15 M.R. 282 206 
 
 V. Starkey 8 M.R. 400 860 
 
TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Fullerton v. Brydges 10 M.R. 431 552 
 
 Canada Settlers' Loan Co. v. . 9 M.R. 327 1150 
 
 Fummerton, Stikeman v 21 M.R. 754 612 
 
 Gaar Scott Co. v. Ottoson 21 M.R. 462 > 229 
 
 Gage, Rex u 18 M.R. 175 176 
 
 Gagnon, McDougall v . . 3 W.L.R. 387 558 
 
 — ■ V 16 M.R. 232 339 
 
 Galbraith, Johannesson v 16 M.R. 138 55 
 
 Reg. V. 6 M.R. 14 296 
 
 ■ y. Scott 16 M.R. 594 131 
 
 Smith V 1 W.L.R. 227 97 
 
 Gallagher, Lee «; 15 M.R. 677 835 
 
 — Renton v 19 M.R. 478 669 
 
 ^ V 47 S.C.R. 393 669 
 
 Gait V. Kelly 5 M.R. 224 1021 
 
 V. McLean 6 M.R. 424 584 
 
 ■ V. Saskatchewan Coal Co 4 M.R. 304 1251 
 
 V. Stacey 5 M.R. 120 412 
 
 Garbutt v. Winnipeg 18 M.R. 345 783 
 
 Gardiner v. Bickley 2 W.L.R. 146 704 
 
 V. — 15 M.R. 354 334 
 
 Taylor?;. 8 M.R. 310 913 
 
 Garrett, Morden Woollen Mills v 17 M.R. 557 151 
 
 Ruddell V 12 M.R. 563 742 
 
 Garrioch v. McKay 13 M.R. 404 439 
 
 Gas Power Age v. Central Garage Co. . . 21 M.R. 496 839 
 
 Gaudry w. C. P. R ,11 M.R. 69 857 
 
 Massey Man. Co. y 4 M.R. 229 575 
 
 Gault V. McNabb 1 M.R. 35 464 
 
 Geddes v. Miller 1 M.R. 368 899 
 
 Gelin, Imperial Brewers v 18 M.R. 283 137 
 
 Geller, Slingsby Man. Co. v. . . 17 M.R. 120 824 
 
 Gemmell, Campbell v 6 M.R. 355 514 
 
 V. Sinclair 1 M.R. 85 1071 
 
 Gendron «;. Manitoba Milling Co. .. 7 M.R. 484 403 
 
 George, London (Guarantee & Ac&. Co. v. 16 M.R. 132 203 
 
 George Lindsay Co., Shea v 20 M.R. 208 524 
 
 Georgeson, Qloutier v 13 M.R. 1 427 
 
 — — Lewis V 6 M.R. 272 684 
 
 — Ruddell V 8 M.R. 134 1012 
 
 V...- 9 M.R. 43 1067 
 
 — r-^ ■ — V... 9 M.R. 407 1068 
 
 German Canadian Land Co., Muldowan v. 19 M.R. 667 152 
 
 Gerrie v. Chester 5 M.R. 258 38 
 
 ManitobaElectric &Gas Light Co. v. 4 M.R 210" 546 
 
xl TABLE OF CASES DIGESTED. 
 
 Column 
 
 , Volume. o;f Digest. 
 
 Gerrie, McCaffrey v 3 M.R. 559 220 
 
 — i — V. Rutherford 3 M.R. 391 510 
 
 Gibbins, Barber v 19 S.C.R. 204 180 
 
 V. Metcalfe 14 M.R. 364 410 
 
 V. 15 M.R. 560 175 
 
 j;. Chadwick 8 M.R. 209 953 
 
 V. 8 M.R. 213 41 
 
 Gibbons v. —, 9 M.R. 474 899 
 
 — ?;. — : — 14 C.L.T. Occ. N. 9 899 
 
 — Reg. V 12 M.R. 154 286 
 
 Gibson v. Coates ! 1 W.L.R. 556 98 
 
 — — Forest v 6 M.R. 612 734 
 
 — Gillies V. 17 M.R. 479 930 
 
 - Herbert Re 6 M.R. 191 1017 
 
 Re Massey and 7 M.R. 172 1018 
 
 ■ Mclntyre v 17 M.R. 423 508 
 
 — Ontario Bank v 3 M.R. 406 90 
 
 V 4 M.R. 440 90 
 
 Reid V 17 C.L.T. Occ. N. ^ 570 
 
 Gilboy, Reg. v 7 M.R. 54 306 
 
 Giles ?;. Hamilton Provident & Loan Society 10 M.R. 567 256 
 
 w. McEwan 11 M.R. 150 1131 
 
 Gill, Clay v 12 M.R. 465 481 
 
 Gillespie, Holmwood v 11 M.R. 186 1133 
 
 V. Lloyd _ 11 C.L.T. Occ. N. 121 161 
 
 V. Westbourne 10 M.R. 656 768 
 
 Gillies, Bank of Hamilton v 12 M.R. 495 88 
 
 V. Commercial Bank 9 M.R. 165 815 
 
 V. ■■ — 10 M.R. 460 80 
 
 V. Gibson 17 M.R. 479 930 
 
 Gilmour, Bennett v 16 M.R. 304 25 
 
 V. Simon 15 M.R. 205 912 
 
 V. ■ 37 S.C.R. 422 912 
 
 Speton V 14 M.R. 706 861 
 
 Gladstone, Re Cross and 15 M.R. 528 653 
 
 Glass, Henry v 2 M.R. 97 57 
 
 McArthur v 6 M.R. 224 1007 
 
 V 6 M.R. 301 1014 
 
 V. McDonald 1 M.R. 29 1163 
 
 Glines v. Cross 12 M.R. 442 925 
 
 Fredkin v^ 11 W.L.R. 318 255 
 
 ■ — V 18 M.R. 249 628 
 
 Imperial Bank v 10 M.R. 317 868 
 
 Globe Sav. & Loan Co. v. Employers' 
 
 Liability Ass. Corp 13 M.R. 531 939 
 
 Glynn, Rex, v 19 M.R. 63 715 
 
 Gocher, Nichol ^^. 12 M.R. 177 §41 
 
 Goggin D. Kidd 10 M.R. 448 538 
 
TABLE OF CASES DIGESTED. xli 
 
 Column 
 
 Volume. of Digest. 
 
 Goldstaub, lieg. v 10 M.R. 497 308 
 
 Goldstein, Archibald v -. . 1 M.R.. 45 933 
 
 —^ V 1 M.R. 146 799 
 
 Pollock V 10 M.R. 631 874 
 
 Good, Merchants Bank v 6 M.R. 543 24 
 
 V 6 M.R. 339 90 
 
 Goodier, Ross v 5 W.L.R. 593 508 
 
 Gordanier w. C. N. R 15 M.R. 1 408 
 
 Gordon, Allan v 1 M-R. 132 149 
 
 — — — Anglo-Canadian Land Co. v.... 19 M.R. 201 223 
 V. Handford 16 M.R. 292 1133 
 
 V. Leary 17 M.R. 383 910 
 
 =- W.Toronto, Man. &N.W. Land Co. 2 M.R. 318 240 
 
 Gowans v. Chevrier 7 M.R. 62 490 
 
 Gowenlock v. Ferry 11 M.R. 257 40, 835 
 
 Grace v. Osier 21 M.R. 641 114 
 
 Graening, Dyck v ". 17 M.R. 158 130 
 
 Graham v. British Canadian Loan Co. . . 12 M.R. 244 930 
 
 — V. Case Threshing Machine Co. id M.R. 27 199 
 
 V. Dremen 9 W.L.R. 641 1219 
 
 V. Hamilton 8 M.R. 443 1017 
 
 V. 8 M.R. 459 1014 
 
 Hannah v 17 M.R. 532 708 
 
 V. Harrison 6 M.R. 210 463 
 
 Robinson v 16 M.R. 69 62 
 
 Sprague v 7 M.R. 398 1015 
 
 Wilson V 16 M.R. 101 10^3 
 
 Grand Lodge A.O.U.W. v. Supreme Lodge 
 
 A.O.U.W 17 M.R. 360 471 
 
 Grand Trunk Pacific Ry., Hunt v. ... 18 M.R. 603 988 
 
 Grannis, Reg. v 5 M.R. 153 640 
 
 Grant, Re 7 M.R. 468 1079 
 
 V. Hunter 6 M.R. 550 1013 
 
 v: 7 M.R. 243 390 
 
 V. , 8 M.R. 220 . 1011 
 
 V. Kelly 2 M.R. 222 506 
 
 — : w. McKay 10 M.R. 243 558 
 
 V. McKee 11 M.R. 145 895 
 
 V. Reid 16 M.R. 527 1130 
 
 Graves, Beach v 1 M.R. 26 520 
 
 Dominion Type Co. f 1 M.R. 26 520 
 
 V. Home Bank 20 M.R. 149 75 
 
 and Tentler, Re 21 M.R. 417 51 
 
 Gray, Re 9 M.R. 388 900 
 
 V. Manitoba & N. W. Ry. Co. . . 11 M.R. 42 1002 
 
 V. [1897] A.C. 254 1002 
 
 z;. ^— . . 11 M.R. mi 44 
 
xlii TABLE OF CASES DIGESTED, 
 
 Column 
 Volume. of Digest. 
 
 Gray v. Manitoba & N. W. Ry. Co 12 M.R. 57 901 
 
 — V. Maclennan .- 3 M.R. 337 459 
 
 Gray-Jones, Brittlebank v 5 M.R. 33 676 
 
 Great N. W. Central Ry. Co., Charlebois v. 9 M.R. ' 1 997 
 
 ■ — — — V. 9 M.R. 60 1095 
 
 ^— ■ — V. 9 M.R. 286 1138 
 
 — V. 11 M.R. 135 1000 
 
 Forrest v... 12 M.R. 472 153 
 
 — ■ International Corp. v. 9 M.R. 147 466 
 
 Mussen v 12 M.R. 574 145 
 
 Macdonald v 10 M.R. 83 582 
 
 Great N. W. Telegraph Co. v. McLaren. . 1 M.R. 358 160 
 
 Great Prairie Inv. Co., Re 17 M.R. 554 1248 
 
 Great Waterways Ry. Co., Re Alberta and 20 M.R. 697 ' 463 
 
 Great West LaXindry Co., Reg. v 13 M.R. 66 292 
 
 Green, Brand v 12 M.R. 337 156 
 
 V 13 M.R. 101 172 
 
 V. Cauchon 3 M.R. 248 733 
 
 — V. Hammond 3 M.R. 97 122 
 
 • Jones Stacker Co. i- 14 M.R. 61 205 
 
 -.- V. Manitoba Ass. Co 13 M.R. 395 453 
 
 ■ ■ Shore v : ... 6 M.R. 322 849 
 
 Greer v. Dennispn 21 M.R. 46 1057 
 
 Gregory, Fortier v 1 M.R. 25 1162 
 
 Grey J). Man. & N. W. R 1-2 M.R. 32 414 
 
 V. Stephens 16 M.R. 189 112 
 
 Griffin v. Blake 21 M.R. 547 892 
 
 — Scott V 6 M.R. 116 684 
 
 Griffiths V. Winnipeg Elec. Ry. Co 16 M'R. 512 604 
 
 Grisdale v. Chubbuck 1 M.R. 202 404 
 
 Grobb V. Darling 17 M.R. 211 936 
 
 — — Rex V 17 M.R. 191 396 
 
 Grouette, Smiih v 2 M.R. 314 928 
 
 Grundy, Aldous v 21 M.R. 559 919 
 
 V. Macdonald 11 M.R. 1 267 
 
 ~ Ritchie v 7 M.R. 532 695 
 
 V. Grundy 10 M.R. 327 551 
 
 Guay w. C. N. R 15 M.R. 275 995 
 
 ' Gvidmundson, Johannson v f. 19 M.R. 83 554 
 
 Guertin, Rex v 19 M.R. 33 282 
 
 Guiier, Winnipeg v 3 M.R. 23 246 
 
 Guillett, Wood v. .: 10 M.R. 570 1098 
 
 GuUivan v. Cantelon 16 M.R. 644 884 
 
 Gunn V. Vinegratsky 20 M.R. 311 497 
 
 Gurney, Nelson v T.W. 173 426 
 
 Guthrie v. Clark 3 M.R. 318 1197 
 
TABLE OF CASES DIGESTED. xliii 
 
 Column 
 Volume. of Digest. 
 
 H— , Re an Attorney 19 C.L.T. Occ. N. 290 1121 
 
 20 C.L.T. Occ. N. 140 1121 
 
 Haddock z;. Russell 8 M.R. 25 272 
 
 Haffield v. Nugent 6 M.R. 547 439, 1122 
 
 Haffner v. Cordingly 18 M.R. 1 918 
 
 Hagel «;. Starr , .. 2 M.R. 92 838 
 
 Haggart, Ontario Bank v 5 M.R. 204 518 . 
 
 Haines v. Canadian Ry. Accident Ins. Co. 20 M.R. 69 5 
 
 . V. 44 S.C.R. 386 5 
 
 Hall, Johnstone v 10 M.R. 161 704 
 
 V. South Norfolk 8 M.R. 430 654 
 
 Stewart v 17 M.R. 653 1122 
 
 - Vanderwoort v 18 M.R. 682 1207 
 
 Wallbridge v 4 M.R. 341 1111 
 
 Hallett, Carberry Ga^ Co. «; 17 M.R. 525 521 
 
 Halsted v. Conklin ; 3 M.R. 8 883 
 
 V. Herschmann 18 M.R. 103 91 
 
 Hamilton, Copeland v 9 M.R. 143 1226 
 
 Graham «; 8 M.R. 443 1017 
 
 V 8 M.R. 459 1014 
 
 — V. Macdonell 19 M.R. 385 1207 
 
 V. McDonald 2 M.R. 114 505 
 
 Reg. V 12 M.R. 354 387 
 
 — Reg. V 12 M.R. 507 312 
 
 Hamilton Provident, Broughton v 10 M.R. 683 863, 925 
 
 ^ Carruthers v 12 M.R. 60 721 
 
 r ■ Giles V 10 M.R. 567 256 
 
 — Koester v 10 M.R. 374 392 
 
 Linstead v 11 M.R. 199 732 
 
 Hamilton Trusts, Re . . 10 M.R. 573 941 
 
 V 10 M.R.' 588 262 
 
 Hammond, Green v 3 M.R. 97 122 
 
 — Williams v 16 M.R. 369 683 
 
 Hanbury v. Chambers 10 M.R. 167 834 
 
 Handford, Gordon v 16 M.R. 292 1133 
 
 Hanna, Brandon Steam Laundry Co. v. 19 M.R. 8 1204 
 '■ — Massey Man. Co. j; 7 M.R. 572 262 
 
 V. McKenzie 6 M.R. 250 441 
 
 Hannah v. Graham 17 M.R. 532 708 
 
 Hannesdottir y. Mun. of Bifrost 21 M.R. 433 1159 
 
 Hanover, Ewart v 8 M.R. 216 245 
 
 '■ Pritchard v 1 M.R. 72 1166 
 
 V 1 M.R. 366 849 
 
 Hardie v. Lavery 5 M.R. 134 568 
 
 — V. 5 M.R. 135 570 
 
 Harding v. Johnston 18 M.R. 625 647 
 
 Hardy v. Atkinson 18 M.R. 351 522 
 
 V. Desjarlais 8 M.R. 401 948 
 
xliv TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Hardy v. Desjarlais 8 M.R. 550 527 
 
 • Hargrave, Lacerte v T.W. 343 352 
 
 Harley, Empire Brewing Co. z) 7 M.R. 416 888 
 
 Harmer, Cochrane Man. Co. w 3 M.R. 449 254 
 
 Harms, Abell Engine Co. w 16 M.R. 546 279 
 
 Harris, Re 19 M.R. 117 700 
 
 — ^— Ady V 9 M.R. 127 537 
 
 ■ — Parenteau v 3 M.R. 329 535 
 
 — ' V. Rankin 4 M.R. 115 532, 533, 1035 
 
 — V. — 4 M.R. 512 532 
 
 V. York 8 M.R. 89 582 
 
 Harrison, v. Carberry Elevator Co 7 W.L.R. 535 733 
 
 — -- Choderker v 20 M.R. 727 610 
 
 Cockerill w 14 M.R. 366 385 
 
 — - Graham v 6 M.R. 210 463 
 
 — ; Manitoba & N. W. Loan Co. v. . 2 M.R. 33 872 
 
 ■ Macdonald v 8 M.R. 153 253 
 
 narrower. Brown v 3 M.R. 441 395 
 
 Hart V. Dubrule 20 M.R. 234 508 
 
 Hartley, Roberts v 14 M.R. 284 479 
 
 Hartt V. Wishard, Langan Co 18 M.R. 376 1200 
 
 Harvey v. C.P.n 3 M.R. 43 250 
 
 — V. 3 M.R. 266 396 
 
 ■ Watson V 10 M.R. 641 94 
 
 y. Wiens ... 16 M.R. 230 . 195 
 
 Harvie, Re 17 M.R. 259 ' 1239 
 
 — V. Snowden 9 M.R. 313 603 
 
 Harwood, Kruger v 16 M.R. 433 148 
 
 Hastings, McArthur v.... 15 M.R. 500 109 
 
 Hatch V. Oakland ..:... 19 M.R. 692 652 
 
 V. Rathwell ■ 19 M.R. 465 658 
 
 Haverson v. Smith 16 M.R. 204 1054 
 
 Hay V. Nixon 7 M.R. 579 1012 
 
 Hayden, Deering v 3 M.R. 219 6 
 
 Hayward v. C. N. R 16 M.R. 158 991 
 
 Hazlewood, Keeler v 1 M.R. 28 62 
 
 — V 1 M.R.' 31 578 
 
 — — V 2 M.R. 149 123 
 
 Hazley v. McArthur 11 M.R. 602 440 
 
 Heale, Thordarson v 17 M.R. 295 924 
 
 Heaman, Bertrand v 11 M.R. 205 384 
 
 Heap,i Sanderson v 19 M.R. 122 553 
 
 Heaslip, Campbell v 6 M.R. 64 829 
 
 Heath v. McLeneghen 5 W.L.R. 358 214 
 
 -. V. Portage la Prairie 18 M.R. 693 529 
 
 ■ V. Sanford 17 M.R. 101 15 
 
 Hebb V. Lawrence 7 M.R. 222 1102 
 
 Heckels, Morden Woolen Mills Co. v. . 17 M.R. 557 151 
 
TABLE OF CASES DIGESTED. xlv 
 
 Column 
 Volume. 6i Digest . 
 
 Hector v. Canadian Bank of Commerce 11 M.R. 320 945 
 
 Hellyar, Montgomery v 9 M.R. 551 343 
 
 ■; — V .14 C.L.T. Occ. N. 356 ' 254 
 
 Henderson, Re 7 M.R. 481 1079 
 
 and Bull, Re 5 M.R. 219 579 
 
 — Dudley v 3 M.R. 472 647 
 
 Jones V 3- M.R. 433 151 
 
 Murray v 19 M.R. 649 16 
 
 McEwan v 10 M.R. 503 276 
 
 Roy w.-. 18 M.R. 234 777 
 
 Heney, Anchor Elevator Co. « 18 M.R. 96 ' 597 
 
 Henry v. C.F.U 1 M.R. -210 977 
 
 t). Glass 2 M.R. 97 57 
 
 Johnson v 21 M.R. 347 1201 
 
 V 21 M.R. 700 1142 
 
 Miller v 3 M.R. 425 406 
 
 v: 3 M.R. 454 1139 
 
 • Waterous Engine Works Co. v.... 2 M.R. 169 457 
 
 ■ V. .. 1 M.R. 36 1045 
 
 Her Majesty's Counsel, Re 8 M.R. 155 968 
 
 Herbert and Gibson, Re 6 M.R. 191 1017 
 
 Herman, Reg. v 8 M.R. 330 302 
 
 Herrell, Reg. v 12 M.R. 198 641 
 
 V 12 M.R. 522 640 
 
 Herschmann, Halsted v 18 M.R. 103 91 
 
 Hetherington, McLenaghan v 8 M.R. 357 738 
 
 Heubach, Munroe v 18 M.R. 450 1185 
 
 V. : 18 M.R. 547 871 
 
 Hewitt V. Hudson's Bay Co 20 M.R. 126 1259 
 
 V. — 20 M.R. 320 599 
 
 Hickey v. Legresley 4 W.L.R. 46 397 
 
 V. 15 M.R. 304 467 
 
 Hickok, Copeland-Chatterson Co. v 16 M.R. 610 198 
 
 Hiebert v. Black 38 S.C.R. 557 735 
 
 Higgins, Fish d. .' 2 M.R. 65 138 
 
 — Machray v 8 M.R. 29 1239 
 
 Higley v. Winnipeg 20 M.R. 22 798 
 
 Hill V. Rowe 3 M.R. 247 853 
 
 V. 19 M.R. 702 1218 
 
 V. Winnipeg Elec. Ry. Co 21 M.R. 442 790 
 
 V. — 46 S.C.R. 654 790 
 
 HiUiard, Canada Permanent v 3 M.R. 32 , 572 
 
 Hine v. Coulthard 20 M.R. 164 65 
 
 Hinch, Sutton v 19 M.R. 705 280 
 
 Hinds, McCuaig v. ' 11 W.L.R. 652 1047 
 
 Hinman v. Winnipeg Elec. St. Ry. Co. . . 16 M.R. 16 789 
 
 Hoare, Brown v..... 16 M.R. 314 1211 
 
 Hockin, Adams v 12 M.R. 11 1010 
 
xlvi TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Hockin, Adams v 12 M.R. 433 1008 
 
 V. Whellams 6 M.R. 521 423 
 
 Hodge, Reg. v 12 M.R. 319 313 
 
 Hoffstrom v. Stanley 14 M.R. 227 690 
 
 Hofley, Loppky v 12 M.R. 335 269 
 
 Hogue, EUiott v 3 M.R. 674 880 
 
 Holden, Reg. v 3 M.R. 579 304 
 
 Holley, Doig t; 1 M.R. 61 48 
 
 — Kasson «; 1 M.R. 1, 637 
 
 HoUiday v. Russian 16 M.R. 437 444 
 
 — Mclntyre v 18 M.R. 535 42 
 
 Hollingsworth v. Lacharite 19 M.R. 379 206 
 
 Holman, Reg. v 10 M.R. 272 74 
 
 Holmes u. Brown 18 M.R. 48 670 
 
 V. C.F.a 5 M.R. 346 866 
 
 Holmwood V. Gillespie 11 M.R. . 186 1133 
 
 Holy Trinity. Church, Anly v 2 M.R. 248 , 686 
 
 — V 3 M.R. 193 686 
 
 Home Bank, Graves v 20 M.R. 149 75 
 
 Homeseekers' Land & Col. Co., Dalziel v. 20 M.R. 736 1191 
 
 Hood, McLenaghan v 15 M.R. 510 801 
 
 Hooker, Bertrand v 10 M.R. 445 492 
 
 Hooper, Brown v 3 M.R. 86 411 
 
 V. Bushell 5 M.R. 300 261 
 
 V. Coombs 5 M.R. 65 547 
 
 V. McBean 3 M.R. 682 1100 
 
 Hope, Bank of Nova Scotia v 9 M.R. 37 579 
 
 Hopkins t). Beckel " 4 M.R. 408 1036 
 
 V. Fuller 15 M.R. 282 206 
 
 Young V 9 M.R. 310 898 
 
 Hopp, Slouski v.: 15 M.R. 548 711 
 
 Hornby, John Abell Co. w 15 M.R. 450 382 
 
 Horrobin, National Supply Co. u 16 M.R. 472 696 
 
 Horsman v. Burke 4 M.R. 245 550 
 
 Hoskins v. Barber T.W. 264 278 
 
 Hough V. Doll 10 M.R. 679 1142 
 
 Houghton and Argyle, Re 14 M.R. 526 967 
 
 Houghton Land Co., Hughes v 18 M.R. 686 917 
 
 '■ V. Mathers ....:.... 14 M.R. 733 " 872 
 
 — Paterson v. 19 M.R. 168 1214 
 
 HouUhan, Sparling vj 14 M.R. 124 709 
 
 House Furnishing Co., Bartlett v 16 M.R. 350 600 
 
 House, Reg. v 2 M.R. 58 305 
 
 Housley, Warne v .3 M.R. 547 424 
 
 Howard, Re 4 M.R. 429 1250 
 
 V. Burrows , 7 M.R. 181 1121 
 
 — Doll V 10 M.R. 635 864 
 
TABLE OF CASES DIGESTED. xlvii 
 
 Column 
 
 / Volume. of Digest. 
 
 Howard, Doll v 11 M.R. 21 37 
 
 ' ^— V 11 M.R. 73 893 
 
 V 11 M.R. 577 706 
 
 V. Lawson 19 M.R. 223 891 ■ 
 
 Howe V. Martin 6 M.R. 477 1092 
 
 V. : . . . 6 M.R. 615 583 
 
 V. 8 M.R. 533 129 
 
 Howell V. Montgomery . . . ■. . 8 M.R. 499 1013 
 
 Rex t; 19 M.R. 317 298 
 
 Howes, Reg. v.- 5 M.R. 339 290 
 
 Howland v. Codd 9 M.R. 435 1152 
 
 Hrabi, AUoway v 14 M.R. 627 91 
 
 Hubbard, Re • 20 M.R. 238 1222 
 
 Mulligan v 5 M.R. 225 546 
 
 Huddlestone v. Love 13 M.R. 432 1231 
 
 Hudson's Bay Co., Annit v 3 M.R. 529 576 
 
 , y_ Atty. Gen T.W. 209 189 
 
 ■ — Re-Couture v. McKay 6 M.R. 273 1143 
 
 Hewitt V 20 M.R. 126 1260 
 
 V 20 M.R. 320 599 
 
 — — V. Macdonald ... .4 M.R. ^37 1195 
 
 V. 4 M.R. 480 1196 
 
 V. Ruttan 1 M.R. 330 1212 
 
 V. Stewart 6 M.R. 8 821 
 
 Hughes, Braun v 3 M.R. 177 ' 1194 
 
 V. Chambers 14 M.R. 163 143 
 
 Dick V 5 M.R. 259 509 
 
 - V. Houghton Land Co 18 M.R. 686 917 
 
 - National Trust Co. v 14 M.R. 41 633 
 
 V. Rutledge 10 M.R. 13 351 
 
 Humphreys v. Cleave 15 M.R. 23 687 
 
 Hunt, Festing v 6 M.R. 381 214 
 
 y. G. T. P 18 M.R. 603 988 
 
 Hunter, Re 16 M.R. 489 126 
 
 V. Bunnell 3 W.L.R. 229 920 
 
 Chadwick v 1 M.R. 39 695 
 
 ?;..... 1 M.R. 109 1139 
 
 ^ V 1 M.R. 363 697 
 
 — ■ Grant v 6 M.R. 550 ^ ■ 1013 
 
 —V 7 M.R. 243 390 
 
 V 8 M.R. 220 1011 
 
 Hurst, Rex v 13 M.R. 584 288 
 
 Huston, Robinson i; 4 M.R. 71 473 
 
 Hutchings v. Adams 12 M.R. 118 910 
 
 Hutchins, Robinson v .- 1 M.R. 122 876 
 
 Hutchinson v. Calder i . . . 1 M.R. 46 397 
 
 V. Colby '. . . . 12 M.R. 307 30 
 
xlviii TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of D'igest. 
 
 Huxtable v. Conn 14 M.R. 713 274 
 
 Hyndman v. Stephens 19 M.R. 187 601 
 
 Ideal Furnishing Co. Re Stewart 17 M.R. 576 1249 
 
 Ideal House Furnishers and Winnipeg, Re 18 M.R. 650 1157 
 
 Knechtel Furniture Co. i; 19 M.R. 652 98 
 
 - Toronto Carpet Man. Co. v 20 M.R. 571 402 
 
 Imperial Bank v. Adamson 1 M.R. 96 406 
 
 — — J). Angus 1 M.R. 98 417 
 
 _ „. Brydon 2 M.R. 117- 395 
 
 ■ V. Farmers' Trading Co. 13 M.R. 412 165 
 
 V. Glines 10 M.R. 317 868 
 
 ■ V. Prittie "... 1 M.R. 31 889 
 
 V. Smith 8 M.R. 440 414 
 
 V. Taylor 1 M.R. 244 417 
 
 Imperial Brewers v. Gelin .-. . . 1"8 M.R. 283 137 
 
 Imperial Development Co., Anderson v.. 20 M.R. 275 900 
 
 Imperial Elevator Co. v. Welch 16 M.R. 136 853 
 
 Imperial Loan Co., Campbell v 15 M.R. 614 818 
 
 . —V 18 M.R. 144 725 
 
 ■ : — V. Clement 11 M.R. 445 611 
 
 V. 11 M.R. 428 611 
 
 ■ ■ Miller v , . 11 M.R. 247 344 
 
 — — Scott?; '.. 11 M.R. 190 1085 
 
 Inch «;. Simon 12 M.R. 1 130 
 
 Inkster, Beemer v 3 M.R. 534 1044 
 
 Mahon v 6 M.R. 253 38 
 
 Osborne v 4 M.R. 399 1093 
 
 Inman «;. Rae 10 M.R. 411 131 
 
 International Ass. of Machinists, Vulcan 
 
 Iron Works v 16 M.R. 207 848 
 
 &c., Corp. V. G. N. W. 
 
 Central Ry. Co 9 M.R. 147 466 
 
 Inter-Ocean Real Estate Co. «). White. . 20 M.R. 67 1127 
 
 Iredale v. Mclntyre 14 M.R. 199 1016 
 
 Irish, Re "... 2 M.R. 361 1021 
 
 V. McKenzie 6 W.L.R. 209 1205 
 
 Irvine, Munro v '9 M.R. 121 557 
 
 Irwin V. Beynon 4 M.R. .10 688 
 
 Boyd «....; 1 3 M.R. 90 123 
 
 Isbister v. Dominion Fish Co 19 M.R. 430 782 
 
 V. '■ ■ — 43 S.C.R. 637 782 
 
 Iveson V. Winnipeg 16 M.R. 352 757 
 
 J. B. Re, an Attorney 6 M.R. 19 1116 
 
 Jack V. Stevenson 19 M.R. 717 29 
 
TABLE OF CASES DIGESTED. xlix 
 
 Column 
 
 Volume. of Digest. 
 
 Jackson v. Allan 11 M.R. 36 393 
 
 V. Bank of Nova Scotia 9 M.R. 75 104 
 
 Brandrith v..... 2 M.R. 129 364 
 
 Roblin V '. 13 M.R. 328 713 
 
 Stewart v 3 M.R. 568 1140 
 
 Jacob's Case 7 M.R. 613 284 
 
 James v. Bell 11 C.L.T. Occ. N. 57 1070 
 
 Thorn j; ! 14 M.R. 373 778, 
 
 Jarvis, N. W. National Bank v 2 M.R. 53 , ' 173 
 
 Jasper, McMaster v 3 M.R. 605 581 
 
 Jeffrey, Flack v \ 10 M.R. 514 689 
 
 Jenkins j;. Ryan ; , 5 M.R. 112 246 
 
 Sveinsson v 21 M.R. 746 1209 
 
 Jewell, Reg. v 6 M.R. 460 310 
 
 Wright V ' 9 M.R. 607 1240 
 
 Jickling, Re 20 M.R. 436 894 
 
 J. I. Case Threshing Machine Co., Graham 
 
 V 19 M.R. 27 199- 
 
 Johannesson v. Galbraith 16 M.R. 138 55 
 
 Johannson v. Gudmundson 19 M.R. 83 554 
 
 John Abell Co! v. Hornby 15 M.R. 450 382 
 
 V. McGuire 13 M.R. 454 197 
 
 John Arbuthnot Co. v. Winnipeg Manu- 
 facturing Co 16 M.R. 401 696. 
 
 John Watson Manufacturing Co. v. Sample 12 M.R. 373 634. 
 
 Johnson, Anderson v.' 6 M.R. 113 123 
 
 «. C. N. R. 19 M.R. 179 659. 
 
 y. Chahners...' 19 M.R. 255 507 
 
 Cordingly w 11 M.R. 4 1098 
 
 V. Henry... . '....: 21 M.R. 347 1201 
 
 V. — — 21 M.R. 700 1142 
 
 V. Land Corporation of Canada 6 M.R. 527 23 
 
 Johnson, Reg. v 14 M.R. 27 291 
 
 Johnston v. Canadian Fairbanks Co. ... 18 M.R. 589 1189 
 
 Desaulniers v.' 20 M.R. 64 556 
 
 V 46 S.C.R. 620 556. 
 
 — — V 20 M.R. 431 904 
 
 V. Harding 18 M.R. 625 647 
 
 Moore v 9 W.L.R. 642 1064 
 
 i;. O'Reilly 16 M.R. 405 1147 
 
 V. Wright 18 M.R. 323 569 
 
 Johnstone v. Hall.. . .' ... 10 M.R. 161 704 
 
 Jonasson, Oleson v...... 16 M.R. 94 338 
 
 Jones, Fonseca v .. . .'. 19 M.R. 334 406 
 
 — V 21 M.R. 168 332 
 
 V. Henderson 3 M.R. 433 151 
 
 McMaster v 6 M.R.' 186 64 
 
 V. Simpson 8 M.R. 124 1006 
 
1 TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Jones, Thordarson v 17 M.R. 295, 924 
 
 — — Thordarson v 18 M.E,. 223 57 
 
 & Moore Electric Co. Re 18 M.R. 549 150 
 
 Stacker Company v. Green 14 M.R. 61 205 
 
 Waterous Engine Works Cd. v... 7 M.R. 73 1132 
 
 Joyce & Scarry, Re 6 M.R. 281 420 
 
 Joyce, Campbell v 15 W.L.R. 29, 291 252 
 
 Jukes, Fisher v 20 M.R. 331 45 
 
 V. Winnipeg & H. B. Ry. Co 5 M.R. ' 14 415 
 
 Kaminski, Canada Elevator Co. v 17 M.R. 298 899 
 
 Kasson v. HoUey 1 M.R. 1 637 
 
 Kayler, McKenzie v 15 M.R. 660 806 
 
 Keating v. Moises ,2 M.R. 47 180 
 
 -Keddy v. Morden 15 M.R. 629 483 
 
 Keeler v. Hazlewood 1 M.R. 28 62 
 
 V. 1 M.R. 31 578 
 
 V. — 2 M.R. 149 123 
 
 iKeewatin Lumber Co. v. Wisch 8 M.R. 365 842 
 
 Kellett «;. C. P. R 16 M.R. 391 990 
 
 Kelly, Canadian Ry. Accident Co. v 16 M.R. 608 1005 
 
 V... . 17 M.R. 645 401 
 
 Gait t; 5 M.R. 224 1021 
 
 Grant v 2 M.R. 222 506 
 
 V. Kelly : 18 M.R. 331 877 
 
 V. 18 M.R. 362 871 
 
 V. 20 M.R. 579 826 
 
 V. [1913] A.C. 826 
 
 Lawrence v. 19 M.R. 359 779 
 
 Maddill v 1 M.R. 280 1220 
 
 . V. McKenzie , 1 M.R. 169 685 
 
 v.- — 2 M.R. 203 22 
 
 V. McLaughlin 21 M.R. 789 1049 
 
 St. Boniface v 2 M.R. 219 505 
 
 V. Winnipeg 12 M.R. 87 767 
 
 V. — 18 M.R. 269 223 
 
 Kennedy, Re 9 M.R. 599 1126 
 
 — V. Austin 1 M.R. 362 1122 
 
 Black V T.W. 144 1109 
 
 Fernie v 19 M.R. 207 835 
 
 Moore v 12 M.R. 173 887 
 
 Morden Woollen Mills Co. v. . 17 M.R. 557 151 
 
 Patterson v 2 M.R. 63 576 
 
 ~ V. Portage la Prairie 12 M.R. 634 758 
 
 Reg. V 10 M.R. 338 305 
 
 Kerfoot v. Yeo 19 M.R. 512 1093 
 
 V. 20 M.R. 129 1216 
 
 Kernighan, Morice v 18 M.R. 360 1191 
 
TABLE OF CASES DIGESTED. li 
 
 Column 
 
 Volume. of Digest. 
 
 Kerr v. Desjarlais 8 M.R. 550 527 
 
 V. 9 M.R. 278 868 
 
 McFadden v 12 M.R. 487 512 
 
 Pettit V 5 M.R. 359 607 
 
 Kidd, Goggin v 10 M.R. 448 538 
 
 Kievell v. Murray 2 M.R. 209 691 
 
 Kildonan and St. Paul Election, Re 4 M.R. 252 364 
 
 Kilgour, Andrew v 19 M.R. 545 27 
 
 Kilpatrick v. Winnipeg . . . ; 4 M.R. 103 760 
 
 King V. Kuhn 4 M.R. 413 136 
 
 - — .V. Roche 11 M.R. 381 354 
 
 V. 27 S.C.R. 219 354 
 
 Kingdom Printing Co., McLean v 18 M.R. 274 841 
 
 Kinsey i;. National Trust Co 15 M.R. 32 231 
 
 Kirchhoffer v. Clement 11 M.R. 460 133, 863 
 
 Kirk, Waterloo Man. Co. t; 21 M.R. 457 143 
 
 Knappen, Burley v 20 M.R. 154 593 
 
 Knechtel Furniture Co. v. Ideal House 
 
 Furnishers 19 M.R. 652 98 
 
 Knott, Wells v 20 M.R. 146 1142 
 
 Knox V. Munro 13 M.R. 16 227 
 
 Knudsen and St. Boniface, Re 15 M.R. 317 760 
 
 Koester v. Hamilton Provident 10 M.R. 374 392 
 
 Kolotyla, Rex « 21 M.R. 197 304 
 
 Kootenay Valley Fruit Lands Co., Re.; 18 W.L.R. 145 • 161 
 
 Krecker, Roff « 8 M.R. 230 136 
 
 Kronsen, Yasne V 17 M.R. 301 205 
 
 Kruger v. Harwood 16 M.R. 433 148 
 
 Kuhn, King v 4 M.R 413 136 
 
 Kyle, O'Connor v 2 M.R. 220 122 
 
 La Banque d'Hochelaga's Case 10 M.R. 171 75 
 
 ■ — V. Merchants Bank 10 M.R. 361 1224 
 
 Labatt v. Chishohn 7 M.R. 502 960 
 
 Lacerte v. Hargrave T.W. 343 352 
 
 Lachance, Mulvihill v 7 M.R. 189 38 
 
 Lachapelle v. Lemay 17 M.R. 161 23 
 
 Lacharite, Hollingaworth v 19 M.R. 379 206 
 
 Lacoursiere, Reg. v 8 M.R. 302 236 
 
 Laferriere v. Cadieux 11 M.R. 175 349 
 
 Lafferty «. Spain 7 M.R. 32 880 
 
 La Fleche v. Bernardin 21 M.R. 315 1228 
 
 Laird, Case v 8 M.R. 204 1063 
 
 V 8 M.R. 461 603 
 
 Lake of the Woods Milling' Co. v. Colhn 13 M.R. 154 513 
 Fonsecai;. 15 M.R. 413 776 
 
lii TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Lake Winnipeg Transportation Co., Re . 7 M.R. 605 263 
 
 '- : . 7 M.R. 255 1245 
 
 Paulson's Claim. 7 M.R. 602 1250 
 
 -^—. Bergman's Claim 8 M.R. 463 1251 
 
 Lambert v. Clement 11 M.R. 519 1108 
 
 Land Corp. of Canada, Johnson v 6 M.R. 527 23 
 
 Landale v. McLaren 8 M.R. 322 819 
 
 Landed Banking & Loan Co. v. Anderson 3 M.R. 270 39 
 
 ^— V. Douglas.. 2 M.R. 221 351 
 
 Landsborough, Re 21 M.R. 708 957 
 
 Lane, Martin v 3 M.R. 314 682 
 
 — V. Rice 18 W.L.R. 557 1212 
 
 Lansdowne, Foster v 12 M.R. 41 896 
 
 V 12 M.R. 42 752 
 
 V 12 M.R. 416 753 
 
 Larence «. Larence 21 M.R. 145 319 
 
 Larkin v. Poison 19 M.R. 612 658 
 
 Latta V. Owens 10 M.R. 153 964 
 
 Laughlin, Duncan v 2 M.R. 78 739 
 
 LavMe D. Drummond 6 M.R. 120 1011 
 
 La Verandrye Election, Re 1 M.R. 11 356 
 
 ^ , . > 4 M.R. 514 367 
 
 Lavery, Hardie v 5 M.R. 134 568 
 
 V 5 M.R. 135 570 
 
 Law V. Acton 14 M.R. 216 1237 
 
 V. Neary 10 M.R. 592 1149 
 
 Reoc f . 19 M.R. 259 311 
 
 Law Union & Crown, Banting v 21 M.R. 142 991 
 
 Lawlor v. Nicol 12 M.R. 224 73 
 
 Lawrence, Hebb v 7 M.R. 222 1102 
 
 V. Kelly 19 M.R. 359 779 
 
 Lawson, Howard v 19 M.R. 223 891 
 
 Le Blanc, Reg. v. '. ...13 C.L.T. Occ. N. 441 301 
 
 Le May, Comber v T.W. 35 277 
 
 Le Neveu v. McQuarrie 21 M.R. 399 1189 
 
 Leacock v. Chambers 3 M.R. 645 58, 483 
 
 V. McLaren 14 C.L.T. Occ. N. 10 1124 
 
 — V. ■- — 8 M.R. 579 1125 
 
 z;. McLaren, Re Kennedy 9 M.R. 599 1126 
 
 Leadlay t;. McGregor 11 M.R. 9 632 
 
 Lear, Coupez v 16 W.L.R. 401 1125 
 
 - — - v 20 M.R. 238 1222 
 
 Leary, Gordon v 17 M.R. 383 910 
 
 Leask, Dobson v 11 M.R. 630 1098 
 
 Lechtzier, C. P. R. t) 14 M.R. 566 612 
 
 Leckie, Macarthur v 9 M.R. 110 278 
 
 Lee, Down v 4 M.R. 177 679 
 
TABLE OF CASES DIGESTED. liii 
 
 Column 
 Volume. of Digest. 
 
 Lee V. Gallagher 15 M.E. 677 835 
 
 V. Sumner ; 2 M.R. 191 505 
 
 Leggo, DDUgall v 10 C.L.T. Occ. N. 387 952 
 
 ■■ — v.- 7 M.R. 445 952 
 
 V. Thibeaudeau 7 M.R. 38 - 882 
 
 Legrefeley, Hickey v .4 W.L.R. 46 397 
 
 • V 15 M.R. 304 467 
 
 Lehberg, Dean v 17 M.R. 64 421 
 
 Leibrock v. Adams 17 M.R. 575 261 
 
 Lemay, Lachapelle v. 17 M.R. 161 23 
 
 Lenarduzzi, Valentinnzzi v : 16 M.R. 121 1124 
 
 Leng V. Smith 14 M.R. 258 1017 
 
 Les Cisterciens Reformes, Chaz v 12 M.R. 330 444 
 
 Les Soeurs de la Charite v. Forrest 20 M.R. 301 ' 250 
 
 Leveque, Reg v 3 M.R. 582 601 
 
 Levi V. Phoenix Ins. Co. of Brooklyn . . 17 M.R. 61 870 
 
 Lewis, Re 5 M.R. 44 1020 
 
 «;. Barre 14 M.R. 32 1055 
 
 v: Georj^eson. 6 M.R. 272 684 
 
 V. Mclnnes ' 17 W.L.R. 300 1173 
 
 ^ y. Standard Mutual Fire Ins. Co. 44 S.C.R. 40. 448 
 
 W.Wood 2 M.R. 73 567 
 
 Lewis Furniture Co. v. Campbell 21 M.R. 390 1182 
 
 License Commissioners, Rex v 14 M.R. 535 649 
 
 LUlico, Watson w 6 M.R. 59 957 
 
 Lilly, Newton v 16 M.R. 39 496 
 
 Lindsay, Manitoba Farmers' Mutual Hail 
 
 Ins. Co. 1) 13 M.R. 352 ' 773 
 
 Rosen v 17 M.R. 251 701 
 
 Shea V 20 M.R. 208 524 
 
 Lines v, Winnipeg Elec. St. Ry. Co. . . . 11 M.R. 77 789 
 Linstead v. Hamilton Provident and Loan 
 
 Society : 11 M.R. 199 732 
 
 Liquor Act, Re 13 M.R. 239 183 
 
 — 13 M.R. 323 43 
 
 — [1902] A.C. 73 183 
 
 Lisgar Election, Re 7 M.R. 581 356 
 
 20 S.C.R. 1 356 
 
 13 M.R. 478 362 
 
 14 M.R. 268 256 
 
 14 M.R. 310 360 
 
 16 M.R. 249 363 
 
 Little V. McCartney 18 M.R. 323 569 
 
 Livingstone, Re 6 M.R. 298 575 
 
 Farmer v '. . . 5 S.C.R. 221 320 
 
 V. Rowand 12 C.L.T. Occ. N. 30 843 
 
 V. — 8 M.R. 298 245 
 
 Wyld V... 9 M.R. 109 1152 
 
liv TABLE OP CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Lloyd Gillespie v 11 C.L.T. Occ. N. 121 161 
 
 Locators v. Clough 17 M.R. 659 917 
 
 Logan CUfford v 9 M.R. 423 131 
 
 t;. Rea 14 M.R. 543 479 
 
 Logan Trusts, Re 3 M.R. 49 1237 
 
 4 M.R. 19 1237 
 
 V. Winnipeg 8 M.R. 3 186 
 
 V. [1892] A.C. 445 186 
 
 Logie Nixon v 4 M.R. 366 1203 
 
 f;ondon & Can. Loan Co. v. Connell. ... 11 M.R. 115 425 
 
 , t). Moffat........ 3 M.R. 249 852 
 
 —U.Morris 7 M.R. 128 1152 
 
 V. — - 19 S.C.R. 434 1152 
 
 v.- ^ 12 C.L.T. Occ, N. 68 45 
 
 V. 12 C.L.T. Occ. N. 76 800 
 
 ■ — • — V. 9 M.R. 377 671 
 
 — — ■ —v. 9 M.R. 431 514 
 
 London Fence Co., Re (No. 1) 21 M.R. 91 1253 
 
 Re (No. 2) 21 M.R. 100 41 
 
 Brown v 19 M.R. 138 409 
 
 London Guar. & Ace. Co. v. Cornish. . . 17 M.R. 148 • 227 
 
 ; V. George ... 16 M.R. 132 203 
 
 — N.W. Com- 
 mercial Travellers Ass. v 10 M.R. 537 4 
 
 London & Lancashire Ins. Co., Rogers v. 10 M.R. 667 52 
 
 Liverpool & Globe Co., Rogers v. 10 M.R. 667 52 
 
 Long V. Barnes 14 M.R. 427 846 
 
 Unger v 12 M.R. 454 866 
 
 — — V. "Winnipeg Jewelry Co 9 M.R. 159 418 
 
 Longmore v. McArthur 19 M.R. 641 795 
 
 V. —— 43 S.C.R. 640 795 
 
 Loppky , «). Hofley 12 M.R. 335 269 
 
 Lome Election, Re 4 M.R. 275 356 
 
 Louise, Mun. of «. C. P. R 14 M.R. 1 33 
 
 • — Couch V 16 M.R. 656 759 
 
 — — Crothers v 10 M.R. 523 960 
 
 White V 7 M.R. 231 760 
 
 Love, Huddlestone v 13 M.R. 432 1231 
 
 Lowes, Fairchild v 8 M.R. 527 887 
 
 Lumbers v. Montgomery 20 M.R. 444 12 
 
 Lunn V. Winnipeg 2 M.R. 225 808 
 
 Lutes, Brydon v 9 M.R. 463 115 
 
 Luxton, British Empire, &c., Ass.* Co. v. 9 M.R. 169 937 
 
 Lyall Mitchell Co., Schultz v 20 M.R. 429 601 
 
 Lynch v. Canada N.W. Land Co 19 S.C.R. 204 180 
 
 V. Clougher 1 M.R. 293 60 
 
TABLE OF CASES DIGESTED. Iv 
 
 Column 
 Volume. of Digest. 
 
 Lynch, West v 5 M.R. 167 1192 
 
 Lyon, Breden v T.W. 50 159 
 
 Lyons, Newman v : . . . 8 M.R. 271 488 
 
 Maber v. Penskalski 15 M.R. 236 1130 
 
 Macarthur, St. John's Cathedral v 9 M.R. 391 699 
 
 «;. Leckie 9 M.R. 110 278 
 
 V. Portage la Prairie . . . 9 M.R. 588 239 
 
 Macdonald, Attorney General v. 6 M.R. 372 1135. 
 . V. Corrigal 9 M.R. 284 1232 
 
 V. Cummings 8 M.R. 406 442 
 
 — V. Drake 16 M.R. 220 158 
 
 Election, Re 11. M.R. 3,98 355 
 
 ^ 17 C.L.T. Occ. N. 159 372 
 
 V. Fairchild Co 19 M.R. 129 870 
 
 V. Great N.W. Central Ry. Co. 10 M.R. 83 582 
 
 ■ Grundy v 11 M.R. 1 267 
 
 — ■ ^ V. Harrison 8 M.R. 153 ' 253 
 
 — Hudson's Bay Co. « 4 M.R. 237 1195 
 
 • • ■ V 4 M.R. 480 1196 
 
 V. McArthur 4 M.R. 56 
 
 Re Mun. of 10 M.R. 294 766 
 
 10 M.R. 382 767 
 
 Royce v 19 M.R. 191 1026 
 
 Macdonell, McArthur v 1 M.R. 334 519 
 
 V 3 M.R 9 10 
 
 V . 3 M.R. 629 249 
 
 = Hamilton V . 19 M.R. 385 1207 
 
 Machar, McKilligan v 3 M.R. 418 178 
 
 Machray v. Higgins i 8 M.R. 29 1239 
 
 Mackay, Dixon v 24 CX.T. Occ. N. 28 454 
 
 V 21 M.R. 762 273, 454 
 
 Maddill V. Kelly 1 M.R. 280 1220 
 
 Magee and Smith, Re 10 M.R. 1 618 
 
 Mager, St. Vital « 19 M.R. 293 530 
 
 Magnus Brown, Re '. 8 M.R. 391 1234 
 
 Magnusson, Bertrand v 10 M.R. 490 424 
 
 ikahon. Bore v 10 M.R. 150 1179 
 
 V. Inkster 6 M.R. 253 38 
 
 Major V. Shepherd 18 M.R. 505 1209 
 
 Makarsky «. C. P. R 15 M.R. 53 1262 
 
 Malcohn V. Brown 16 C.L.T. Occ. N. 198 806 
 
 V. McNichol 16 M.R. 411 794 
 
 V. — — 39 S.C.R. 265 794 
 
 Maneer j). Sanford 15 M.R. 181 933 
 
 Manitoba Ass. Co., Green v 13 M.R. 39,5 453 
 
 — ■—— — Whitla V 14 M.R. 90 450 
 
 — — V 34 S.C.R. 191 450 
 
M , TABLE OF CASES DIGESTED. 
 
 - Column 
 * Volume. ,, of Digest. 
 
 Manitoba Cold Storage, Chariest v. . . . 17 M.R. 539 73 
 
 . 11 t;. ... 42 S.C.R. 253 73 
 
 Commission Company, Re.... 21 M.R. 795 1250 
 
 Electric &c. Go. v. Gerrie ... 4 M.R. 210 546 
 
 — V. Winnipeg. 2 M.R. 177 279 
 
 . Nat. Elec. Co. v. 9 M.R. 212 511 
 
 — ^ Farmers' Hedge & Wire Fence - 
 
 Co. V. Stovel Co 14 M.R. .55 ' 623 
 
 Farmers' Mutual Ha;il Ins. Co. v. .^ 
 
 Fisher 14 M.R. 157 - 773 
 
 V. Lindsay l3 M.R. 352 773 
 
 and C. P. R 9 .C.L.T. Occ. N. 126 187 
 
 Free Press Co., Adcock v. . . . 19 M.R. 160 1096 
 
 Ashdown v.... 6 M.R. 578 623 
 
 V. .. 2p S.C.R. 43 623 
 
 Martin v. . . . 7 M.R. 413 ^24 
 
 V 8 M.R. 50 626 
 
 . .^ V. ... 21 S.C.R. 518 626 
 
 Nagy V 16 M.R. 619 1114 
 
 . V 39 S.C.R. '340 1114 
 
 Watson V 18 M.R. 309 228 
 
 Inv. Ass. V. Moore 4 M.R. 41 245 
 
 V. Watkins 4 M.R. 357 532 
 
 Land Co., Ashdown v 3 M.R. 444 : 927 
 
 License Holders' Ass., A. G. v. [1902] A.C. 77 183 
 
 Lumber &Puel Co., Miller y. 6 M.R. 487 666 
 
 Milling Co., Re 11 C.L.T. Occ. N. 313 1244 
 
 , 8 M.R. 426 1252 
 
 . - Blake e; 8 M.R. 427 -/ 260 
 
 Gendron v 7 M.R. 484 ,- 403 
 
 Perry v 15 M.R. 523 219 
 
 ■ Mortgage Co. v. Bank of Mon- 
 treal 9 C.L.T. Occ. N. 125 76 
 
 '. V. 17 S.C.R. 692 76 
 
 " V. CP.R....'.. 1 M.R. 285 737 
 
 : V. Daly 10 M.R. 425 1025 
 
 . . V. Stevens . .'. . . 4 M.R. 410 602 
 
 & N W. Land Co., Davidson v. 14 M.R. 232 914 
 
 w. 34 S.C.R. 255 914 
 
 . ■— Loan Co. v. Barker . 8 M.R. 296 720 
 
 . V. Bolton. . . 9 M.R. 153 517 
 
 V. Harrison. . 2 M.R. 33 872 
 
 . V. MePherson 9 M.R. 210 ^ - 1149 
 
 . . V. Routley . . 3 M.R. 296 ' 577 
 
 V. . . 3 M.R. 521 1107 
 
 V. Scobell ... 2 M.R: 125 736 
 
TABLE OF CASES DIGESTED. , Mi 
 
 Column 
 Volume. of Digest. 
 
 Manitoba & N.-W.Ry. Co.. Allan v 9 M.R. 388 900 
 
 ■■ ■ V. ... 10 M.R. 143 999 
 
 — ReGrayNo.l 10 M.R. 106 737 
 
 • ReGravNo.2 10 M.R. 123 818 
 
 — Allans 12 M.R. 57 901 
 
 — Belch V. ... 4 M.R. 198 154 
 
 '—■ — — Gray v 11 M.R. 42 1002 
 
 — — — v.... [1897] A.C. 254 1002 
 
 V 11 M.R. 261 44 
 
 . -^ _ __ Grey v 12 M.R. 32 414 
 
 ■- V 12 M.R. 57 901 
 
 _ _ _ -^ Maxwell v. . 11 M.R. 149 961 
 
 — ■ McMillan v. 4 M.R. 220 985 
 
 — — Westbourne 
 
 Cattle Co. V. 6 M.R. 553 985 
 
 S. W. Colonization Ry. Co., 
 
 Murdoch V. T.W. 334 153 
 
 Windmill Co. v. Vigier 18 M.R. 427 265 
 
 Manitou, Re Methodist Church 8 M.R. 136 146 
 
 Mann, Douglas v 11 M.R. 546 26 
 
 — Winnipeg & H. B. Ry. Co. v. . . 6 M.R. 409 568 
 
 ' — V. .. 7 M.R. 81 998 
 
 — V. ■ 7 M.R. 457 415 
 
 Manning v. Winnipeg 21 M.R. 203 240 
 
 Mannix, Sutherland v 8 M.R. 541 169 
 
 Manoque v. Mason 3 M.R. 603 1105 
 
 Manufacturers' Life Ins. Co. v. Rowes . 16 M.R. 540 86 
 
 Maranda, Empire Sash & Door Co. v, . 21 M.R. 605 498 
 
 Marchand, Stover v 10 M.R. 322 1024 
 
 Marion v. Winnipeg Elec. Ry. Co 21 M.R. 757 602 
 
 Marquette Election, Re 11 M.R. 381 354 
 
 27 S.C.R. 219 354 
 
 Marshall v. May 12 M.R. 381 384 
 
 Martel v. Dubord 1 M.R. 174 867 
 
 V. 3 M.R. 598 468 
 
 V. Mitchell 16 M.R. 266 . 819 
 
 Martin v. Brown 19 M.R. 680 932 
 
 Re Brunswick Balke Co. and ... 3 M.R. 328 575 
 
 French v-. 13 C.L.T. - Occ. N. 159 40 
 
 V 8 M.R. 362 507 
 
 Howe V 6 M.R. 477 1092 
 
 V 6 M.R. 615 583 
 
 V 8 M.R. 533 129 
 
 V. Lane 3 M.R. 314 682 
 
 V. Manitoba Free Press Co 8 M.R. 50 626 
 
 V. .... 21 S.C.R. 518 626 
 
 V. — . .... 7 M.R. 413 624 
 
 V. Morden 9 M.R. 565 1007 
 
Iviii TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Martin i;. Morden 9 M.R. 667- 1012 
 
 V. Northern Pacific Express Co.. 10 M.R. 595 70 
 
 V. — 26 S.C.R. 135 70 
 
 Rowand v 7 M.R. 160 50 
 
 Martindale ?;. Conklin 1 M.R. 338 1097 
 
 Martinson, McArthur v 16 M.R. 387 697 
 
 Marquette Election, Re 11 M.R. 381 " 354 
 
 .. . 27 S.C.R. 219 354 
 
 Mason, Affleck v 21 M.R. 759 868 
 
 Manoque v 3 M.R. 603 1105 
 
 Massey and Gibson, Re 7 M.R. 172 1018 
 
 Masgey-Harris Co., Crayston v 12 M.R. 95 267 
 
 Maw V 14 M.R. 252 828 
 
 — V. MoUond 15 M.R. 364 1108 
 
 V. McLaren 11 M.R. 370 30 
 
 Sawyer & Massey Co. v. 18 M.R. 409 272 
 
 V. Warener 17 C.L.T. Occ. N. 409 426 
 
 V. 12 M.R. 48 388, 426 
 
 Massey Man. Co. v. Clement 9 M.R. 359 1110 
 
 ^- -^ V. Gaudry 4 M.R. 229 575 
 
 ■ V. Hanna 7 M.R. 572 262 
 
 V. Perrin 8 M.R. 457 89 
 
 ~ Roe «; 8 M.R. 126 503 
 
 — ■ Slingerland v 10 M.R. 21 536 
 
 Way V 4 M.R. 38 480 
 
 Mathers, Re 7 M.R. 434 1086 
 
 Houghton V 14 M.R. 733 872 
 
 Matheson, Ross v 19 M.R. 350 922 
 
 Woods?; 8 M.R. 158 207 
 
 Mattice v. Brandon Machine Works Co. 17 M.R. 105 828 
 
 Maw V. Massey-Harris Co 14 M.R. 252 828 
 
 V. Moxam 18 M.R. 412 440 
 
 Mawhinney u. Porteous 17 M.R. 184 1227 
 
 Maxwell v. Clark 10 M.R. 406 954 
 
 V. Manitoba & N. W. Ry. Co. 11 M.R. 149 951 
 
 Wilkes V 14 M.R. 599 921 
 
 May, Elliott t; 11 M.R. 306 955 
 
 Marshall v 12 M.R. 381 384 
 
 Meighen v. Armstrong 16 M.R. 5 • 134 
 
 Menzies, Coristine v 2 M.R. 84 6 
 
 Mercer v. Fonseca 2 M.R. 169 400 
 
 V. McLean T.W. 95 275 
 
 Merchants Bank, Re 21 M.R. 91 1253 
 
 — — — Bateman v 1 M.R. 260 477 
 
 — Bathgate v 5 M.R. 210 105 
 
 Canada Permanent v. . 3 M.R. 285 456 
 
 „. Carley 8 M.R. 258 415 
 
 Confederation Life Ass. v. . 10 M.R. 67 711 
 
TABLE OF CASES DIGESTED. lix 
 
 Column 
 Volume. of Digest. 
 
 Merchants Bank v. Dunlop 9 M.R. 623 89 
 
 y. Good 6 M.R. 543 24 
 
 V. 6 M.R. 339 90 
 
 La Banque d'Hochelaga v. 10 M.R. 361 1224 
 
 ■«;. Mulvey 6 M.R. 467 99 
 
 ■ ■ V. Murray 2 M.R. 31 897 
 
 V, McKenzie 13 M.R. 19 475 
 
 — — McLean-?; 1 M.R. 178 409 
 
 V. McLean 5 M.R. 219 579 
 
 — ■ V. Peters 1 M.R. 372 575 
 
 Striemer v 9 M.R. 546 536 
 
 Merritt t). Rossiter T.W. 1 286,680 
 
 Metcalfe, Baynes v 3 M.R. 438 1101 
 
 Gibbins v 14 M.R. 364 410 
 
 — V 15 M.R. 560 175 
 
 Methodist Church, Manitou, Re 8 M.R. 136 146 
 
 Mey V. Simpson 17 M.R. 597 710 
 
 V. 42 S.C.R. 230 710 
 
 Meyers v. Prittie 1 M.R. 27 465 
 
 Mickelson, Burrows v. 14 M.R. 739 614 
 
 Miller, Re 3 M.R. 367 620 
 
 V. Campbell 14 M.R. 437 560 
 
 ■ V. Dahl 9 M.R. 444 712 
 
 — V. 10 M.R. 97 10 
 
 Geddes v 1 M.R. 368 899 
 
 • V. Henry 3 M.R. 425 406 
 
 V. 3 M.R. 454 1139 
 
 — — V. Imperial Loan & Inv. Co. ... 11 M.R. 247 344 
 
 • V. Manitoba Lumber & Fuel Co. 6 M.R. 487 666 
 
 ■?;. Morton.' 8 M.R. 1 680,875 
 
 V. McCuaig 6 M.R. 539 735 
 
 ■ V. 13 M.R. 220 477 
 
 ■ Nagengast v 3 M.R. 241 . 506 
 
 Quebec Bank v 3 M.R. 17 82 
 
 V. Sutton 20 M.R. 269 1190 
 
 — and Town, of Virden, Re . . . . 16 M.R. 479 • 749 
 
 V. Westbourne 13 M.R. 197 880 
 
 — : Wicks V 21 M.R.- 534 394 
 
 Mills, Arden Hotel Co. w 20 M.R. 14 214 
 
 Mcllvride v 16 M.R. 276 1217 
 
 Smythe v 17 M.R. 349 853 
 
 MUner, Rothwell v 8 M.R. 472 1062 
 
 Mimms, Doidge v 12 M.R. 618 958 
 
 V 13 M.R. 48 543 
 
 Minaker v. Bower 2 M.R. 265 1175 
 
 Miner v. Moyie 19 M.R. 707 914 
 
 — — Ontario Bank v T.W. 167 129, 500 
 
 Mitchell, Dougan v 9 M.R. 477 840 
 
Ix TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Mitchell, Martel v 16 M.R. 266 819 
 
 — Montgomery v 18 M.R. 37 159 
 
 Rutherford v 15 M.R. 390 726 
 
 V. Winnipeg 17 M.R. 166 751 
 
 Moffatt, Booth v 11 M.R. 25 781 
 
 Bradbury w 1 M.R. 92 949- 
 
 London & Canadian Loan Co. v. 3 M.R. 249 852 
 
 Moggey, Watson v 15 M.R. 241 619 
 
 Moggy «;. C. P. R 3 M.R. 209 ■ 978 
 
 Moir V. Palmatier 13 M.R. 34 1194 
 
 Smarts 7 M.R. 565 861 
 
 V 8 M.R. 203 254 
 
 Moises, Keating v... 2 M.R. 47 180 
 
 Mblesworth, Real Estate Loan Co. v. . . 2 M.R. 93 408 
 
 V. .. 3 M.R. 116 944 
 
 V. :. 3 M.R. 176 1103 
 
 MoUond, Massey-Harris Co. «; 15 M.R. 364 1108 
 
 Molson's Bank v. Carscaden 8 M.R. 451 376 
 
 V. Robertson 5 M.R. 343 602 
 
 Mondor, Re Stanger and 20 M.R. 280 1040 
 
 Monitor Plow Works v. AUen T.W. 165 583 
 
 Monkman v. Babington 5 M.R. 253 564 
 
 ?;. Follis 5 M.R. 317 1175 
 
 and Gordon, Re 3 M.R. 254 511 
 
 Plaxton V 1 M.R. 371 580 
 
 V. Prittie 3 M.R. 684 247 
 
 Reg. V 8 M.R. 509 294 
 
 V. Robinson 3 M.R. 640 416 
 
 V. Sinnott 3' M Jl. 170 259 
 
 Monteith, Crothers v 11 M.R. 373 639 
 
 Montgomery, Re 20 M.R. 444 12 
 
 Adams v 18 M.R. 22 509 
 
 Ashdown v 8 M.R. 520 637 
 
 V. Hellyiar 14 C.L.T. Occ. N. 356 254 
 
 V. 9 M.R. 551 343 
 
 r- Howell y 8 M.R. 499 1013 
 
 Lumbers v 20 M.R. 444 12 
 
 V. Mitchell 18 M.R. 37 159 
 
 V. McDonald 1 M.R. 232 247 
 
 Sexsmith v 9 M.R. 173 742 
 
 Monvoisin, Rex v 20 M.R. 568 307 
 
 Moodie, Andrews v 17 M.R. 1 199 
 
 Moody V. McDonald 4 W.L.R. 303 1218 
 
 Moon, Ross v 17 M.R. 21 217 
 
 Moore, Re 20 M.R. 41 431 
 
 Moore, Confederation Life Ass. v 6 M.R. 162 1233 
 
 and Confederation Life Ass., Re. 9 M.R. 453 1019 
 
TABLE OF CASES DIGESTED. Ixi 
 
 , Column 
 
 Volume. of Digest. 
 
 Moore v. Crossland 6 W.L.R. 199 792 
 
 y. Fortune 2 M,R. 28 853 
 
 —^ V. 2 M.R. 98 876 
 
 V. Johnston 9 W.L.R. 642 1064 
 
 V. Kennedy 12 M.R. 173 887 
 
 Manitoba Inv. Ass. v 4 M.R. 41 245 
 
 V. McKibbon 19 MR. 461 657 
 
 '■ — V. Protestant School District of 
 
 Bradley 5 M.R. 49 24 
 
 W.Scott 5 W.L.R. 8 836 
 
 V. 16 M.R. 428 1095 
 
 V. 16 M.R. 492 92 
 
 Morden Election, Re 12 M.R. 563 742 
 
 Keddy v 15 M.R. 629 483 
 
 ■^ Martin v 9 M.R. 565 1007 
 
 «.....' 9 M.R. 567 1012 
 
 = — V. South Dufferin 6 M.R. 515 179 
 
 ■ V. 19 S.C.R. 204 180 
 
 Morden Woollen Mills v. Heckels 17 M.R. 557 151 
 
 Morgan, Reg 5 M.R. 63 312 
 
 Ross V 7 M.R. 593 1100 
 
 Morice v. Baird 6 M.R. 241 385 
 
 Morice, Frontenac Loan Co. r 3 M.R. 21 564 
 
 ■ — V .• . . . 3 M.R. 462 11 
 
 V 4 M.R. 439 246 
 
 V 4 M.R. 442 11 
 
 ' — V. Kernighan 18 M.R. 360 1191 
 
 Morphy, Agnew v 1 M.R. 49 1039 
 
 Morris, AUoway v 18 M.R. 363 1067 
 
 V. Armit 4 M.R. 152 69 
 
 V. — 4 M.R. 307 263 
 
 Election Re 6 W.L.R. 742 374 
 
 Election Petition Re 17 , M.R. 330 366 
 
 - V. London & Can. Loan Co. 12 C.L.T. Occ. N. 68 45 
 
 ■ ^ u. 12 C.L.T. Occ. N. 76 800 
 
 V 7 M.R. 128 1152 
 
 — ^ •— V 19 S.C.R. 434 1152 
 
 V 9 M.R. 377 671 
 
 ; — V 9 M.R. 431 514 
 
 Morrisetj Union Bank of Canada v 7 M.R. 470 ' 258 
 
 Morrison v. London Fire Ins. Co 6 M.R. 222 946 
 
 i;. , 6 M.R. 225 446 
 
 V.Robinson...'. 8 M.R. 218 603 
 
 Morton, Crawford v 7 C.L.T. Occ. N. 93 1090 
 
 Miller v 8 M.R. 1 680, 875 
 
 Van Dusen-Harrington Co. v... 15 M.R. 222 934 
 
 Morwick v. Walton 18 M.R. 245 703 
 
bdi TABLE OF CASES 'DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Mouchelin, Primeau v.' 15 M.R. 360 87 
 
 Mowat V. Clement 3 M.R. 585 139 
 
 Moxam, Maw v 18 M.R. 412 440 
 
 Moyie, Miner v 19 M.R. 707 914 
 
 Muir. V. Alexander 15 M.R. WS 945 
 
 Blanchard v 13 M.R. 8« 636 
 
 Muldowan v. German Canadian Land Co. 19 M.R. 667 152 
 
 Mulligan v. Hubbard "5 M.R. 225 646 
 
 — Sinclair v 3 M.R. 481 181 
 
 — V 5 M.R. 17 181 
 
 V. White ; 5 M.R. 40 400 
 
 Mulvey, Merchants Bank v 6 M.R. 467 99 
 
 Mulvihill V. Lachance 7 M.R. 189 38 
 
 Mun. of Argyle d. C. P. R 14 M.R. 382 119 
 
 — V. 35 S.C.R. 550 120 
 
 Mun. of Blanchard, Cleaver v 4 M.R. 464 801 
 
 Foote V 4 M.R. 460 4159 
 
 Mun. of Louise w. C, P. R 14 M.R. 1 33 
 
 Mun. of North Cypress v. C.P.R 14 M.R. 382 119 
 
 '■ V. 35 S.C.R. 550 120 
 
 Mu^i. of North Norfolk, Curran v 8 M.R. 256 34, 761 
 
 Mun. of Rosser, Bryson v 18 M.R. 658 1222 
 
 Mun. of South Norfolk, Hall « 8 M.R. 430 654 
 
 — V. Warren, .... 8 M.R. 481 957 
 
 Mun. of Westbourne, Gillespie v 10 M.R. 656 768 
 
 Munro, Bank of B. N. A. «; 9 M.R. 151 1162 
 
 — • V. Irvine 9 M.R. 121 557 
 
 Knox V 13 M.R. 16 227 
 
 Munroe v. Heubach 18 M.R. 450 1185 
 
 ^ V. 18 M.R. 547 871 
 
 Myers v 16 M.R. 112 1120 
 
 V. O'Neil 1 M.R. 245 940 
 
 Murdoch V. Man. S. W. Col. Ry. Co T.W. 334 153 
 
 Murphy v. Butler 18 M.R. Ill 932 
 
 V. 41 S.C.R. 618 932 
 
 Murray, Re 11 M.R. 445 611 
 
 Bank of Hamilton v 12 M.R. 495 88 
 
 Clarke v T.W. 119 . 279 
 
 V T.W. 127 325 
 
 Fitch t> T.W. 74 386,437,437 
 
 V. Henderson 19 M.R. 649 16 
 
 — Kievell v 2 M.R. 209 691 
 
 Merchants Bank « 2 M.R. 31 897- 
 
 Ricej) 2 M.R. 37 72f 
 
 Smith V 14 M.R. 125 706 
 
 V 21 M.R. 753 890 
 
 Wilton V 12 M.R. 35 1230 
 
 Mussen v. Great N. W. Central Ry. Co. 12 M.R. 574 145 
 
TABLE OF CASES DIGESTED. Ixiii 
 
 Column 
 Volume. of Digest. 
 
 Mutchenbacker v. Dominion Bank 21 M.R. 320 202 
 
 Mutual Reserve Fund Life Ass., Dickson «;. 7 M.R. 125 903 
 
 Myers v. Munroe 16 M.R. 112 1120 
 
 McAnneary v. Flanagan 3 M.R. 47 260 
 
 McArthur t;. Dewar 3 M.R. 72 694 
 
 FoUansby « T.W. . 4 679 
 
 Freehold Loan Co. w 5 M.R. 207 1115 
 
 V. Glass 6 M.R. 224 1007 
 
 V. ^ 6 M.R. 301 1014 
 
 V. Hastings 15 M.R. 500 109 
 
 Hazley v 11 M.R. 602 440 
 
 Longmore v 19 M.R. 641 795 
 
 — ^ : — V ; 43 S.C.R. 640 795 
 
 Macdonald v 4 M.R. 56 406 
 
 V. MacdoneU 1 M.R. 334 519 
 
 V. 3 M.R. 9 10 
 
 V. 3 M.R. 629 249 
 
 V. Martinson 16 M.R. 387 697 
 
 V. McArthur 15 M.R. 151 18 
 
 V. McMillan 3 M.R. 152 99 
 
 V. 3 M.R. 377 99 
 
 Ontario Bank v 5 M.R. 381 82 
 
 —Stephens 6 M.R. Ill 579 
 
 ■ V 6 M.R. 496 501 
 
 — V 1-9 S.C.R. 446 501 
 
 Wolfe V 18 M.R. 30 707 
 
 McAuley v. McAuley 18 M.R. 5.44 1221 
 
 McBean, Hooper v ; . . . . , 3 M.R. 682 1100 
 
 Union Bank v 10 M.R. 211 844 
 
 V. Wyllie 14 M.R. 135 807 
 
 McBurnie, Sharp v 3 M.R. 161 264 
 
 McCaffry v. Gerrie 3 M.R. 559 220 
 
 y. C. P. R 1 M.R. 350 974 
 
 V. Rutledge 2 M.R. 127 259 
 
 McCarthy v. Badgley 6 M.R. 270 1013 
 
 Wells V 10 M.R. 639 94 
 
 McCartney, Re 8 M.R. 367 436 
 
 Little V 18 M.R. 323 569 
 
 McCaul V. Christie 15 M.R. 358 888 
 
 McClary Man. Co., Richardson v 16 M.R. 74 919 
 
 McClelland, Brough v ,. . . . 18 M.R. 279 1051 
 
 McLaren v 6 M.R. 533 352 
 
 McCoU, Saltman v 19 M.R. 456 727 
 
 Rex f 21 M.R. 552 1161 
 
 McComb, Bank of B. N. A. u 21 M.R. 58 86 
 
 McCormick «. C. P. R 19 M.R. 159 600 
 
 McCowan v. McKay 13 M.R. 590 214 
 
bdv TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 McCuaig V. Hinds 11 W.L.R. 652 1047 
 
 MiUer v 6 M.R. 539 735 
 
 V 13 M.R. 220 477 
 
 V. Phillips ; 10 M.R. 694 22 
 
 Whitla V ' 7 M.R. 454 468 
 
 McCutcheon, Bernhart v 12 M.R. 394 135 
 
 Cass V 14 M.R. 458 566 
 
 V 15 M.R. 667 862 
 
 — V 15 M.R. 669 862 
 
 McDermid and Canada Traders, Ltd., Re 
 
 Cass and 20 M.R. 139 1010 
 
 McDonald, Becher v 5 M.R. 223 557 
 
 Boyce t) 9 M.R. 297 171 
 
 «. C. P. R 7 M.R. 423 948 
 
 ■ V. Charlebois 7 M.R. 35 866 
 
 Cooper V 19 M.R. 1 95 
 
 V. Cunningham 3 M.R. 39 247 
 
 V. Deacon 4 M.R. 452 860 
 
 Dure Lumber Co. tJ.Workman 18 M.R. 419 686 
 
 Fonseca v 3 M.R. 413 1036 
 
 V. Eraser 14 M.R. 582 609 
 
 Glass V 1 M.R. 29 1163 
 
 ^ Hamilton y. 2 M.R. 114 505 
 
 Montgomery v 1 M.R. 232 247 
 
 — Moody V... 4 W.L.R. 303 1218 
 
 V. McQueen 9 M.R. 315 486 
 
 — '- Reg. v: 8 MiR. 491 285 
 
 Simpson v 6 M.R. 302 875 
 
 ■ Turriff v 13 M.R. 577 1123 
 
 : Union Bank v 1 M.R. 335 885 
 
 McDougall V. Gagnon 3 W.L.R. 387 558 
 
 V. — ^ — 16 M.R. 232 389 
 
 McEdwards v. Ogilvie Milling Co 4 M.R. 1 683 
 
 V. ■ — 5 M.R. 77 683 
 
 McEwan, British Linen Co. «; 6 M.R. 29 1094 
 
 — — V 6 M.R. 292 465 
 
 — V 8 M.R. 99 466 
 
 V 8 M.R. 214 890 
 
 Crumble v 9 M.R. 419 215 
 
 Giles V 11 M.R. 150 1131 
 
 V. Henderson 10 M.R. 503 276 
 
 Mcllroy v 12 M.R. 164 266 
 
 Sanford Man. Co. t; 10 M.R. 630 414 
 
 McEwen, Rex v 17 M.R. 477 309 
 
 McFadden v. Kerr 12 M.R. 487 512 
 
 McFarlane, Cochrane v 5 M.R. 120 576 
 
 Eyre v 19. M.R. 645 635 
 
 McFie j;. C. P. R 2 M.R. 6 982 
 
TABLE OF CASES DIGESTED. Ixv 
 
 Column 
 Volume. of Digest. 
 
 McGinney j;. C. P. R 7 M.R. 151 995 
 
 McGrath, CoUom v 15 M.R. 96 167 
 
 McGreevy, Adams v ... 17 M.R. 115 117 
 
 McGregor, Re 18 M.R. 432 632 
 
 -^ -, «). Campbell 19 M.R. 38 59,1104 
 
 Leadlay v 11 M.R. 9 632 
 
 V. Withers 15 M.R. 434 1036 
 
 McGuire, Abell Engine Co. w. 13 M.R. 454 197 
 
 Mcllroy^ Cameron v 1 M.R. 197 869 
 
 — V • • 1 M.R. 241 898 
 
 V 1 M.R. 242 732 
 
 V. Davis : 1 M.R. 53 472 
 
 V. McEwan 12 M.R. 164 266 
 
 Mcllvanie, Adamson v 3 M.R. 29 456 
 
 Mcllvride v. Mills 16 M.R. 276 1217 
 
 Mclnnes, Lewis v 17 W.L.R. 300 1173 
 
 Mcintosh, Bank of B. N. A. «. 11 M.R. 503 523 
 
 w. Nickel 4 M.R. 52 1044 
 
 Rex y 14 W.L.R. 548 310 
 
 Mclntyre v. Gibson 17 M.R. 423 508 
 
 V. HolUday 18 M.R. 535 42 
 
 Iredale v 14 M.R. 199 1016 
 
 V. Union Bank '. . 2 M.R. 305 129 
 
 V. Woods 5 M.R. 347 580 
 
 McKay, Allan v. '. T.W. Ill 345 
 
 V. Barber 3 M.R. 41 593 
 
 Benard v 9 M.R. 156 644 
 
 Christie v. . . . 15 M.R. 612 819 
 
 Couture v 6 M.R. 273 1143 
 
 Dixon V 12 M.R. 514 423 
 
 y 21 M.R. 762 . 273, 454 
 
 — — — V 24 C.L.T. Occ. N. 28 454 
 
 Garrioch v 13 M.R. 404 439 
 
 — • Grant v 10 M.R. 243 558 
 
 McCowan v 13 M.R. 590 214 
 
 V. Nanton 7 M.R. 250 1009 
 
 V. Rumble 8 M.R. 86 37, 887 
 
 Vanderlip v 3 W.L.R. 232 410 
 
 McKee, Grant v 11 M.R. 145 895 
 
 McKellar «. C. P. R 14 M.R. 614 986 
 
 McKenney y. Spence T.W. 11 352,377,378 
 
 McKenty v. Vanhorenback 21 Mj.R. 360 91 
 
 McKenzie v. Champion 4 M.R. 158 921 
 
 V. — — 12 S.C.R. 649 921 
 
 V. Fletcher 11 M.R. 540 1023 
 
 Hanna v 6 M.R. 250 441 
 
 Irish V 6 W.L.R. '209 1205 
 
 V. Kayler 15 M.R. 660 806 
 
Ixvi TABLE OF CASES DIGESTED. 
 
 Column 
 
 « Volume. of Digest. 
 
 McKenzie, Kelly v 1 M.R. 169 ' 685 
 
 Kelly V 2 M.R. 203 22 
 
 : Merchants Bank v 13 M.R. 19 475 
 
 • «;. McMuUen ;. 16 M.R. 11 393 
 
 Rankin t> 3 M.R. 323 280 
 
 V 3 M.R. 554 260 
 
 Reg. V 2 M.R. 168 307 
 
 Western Elec. Light Co. v. .. 2 M.R. 51 1093 
 
 McKibbin, Moore v 19 M.R. 461 657 
 
 McKilligan v. Machar 3 M.R. 418 178 
 
 Union Bank v 4 M.R. 29 100 
 
 McKinstry, Winters v 14 M.R. 294 730 
 
 McKinnon v. Black 1 M.R. 243 582 
 
 Campbell v 14 M.R. 421 616 
 
 Sutherland v 3 M.R. 608 1099 
 
 McLaren, Abell v 13 M.R. 463 337 
 
 Arnold v 1 M.R. 313 1034 
 
 Great North Western Tel. Co.y. 1 M.R. 358 160 
 
 Landale v 8 M.R. 322 819 
 
 Leacock j; 8 M.R. 579 1125 
 
 ■ V 14 C.L.T. Occ. N. 10 1124 
 
 Re Kennedy 9 M.R. 599 1126 
 
 Massey-Harris Co. w 11 M.R. 370 30 
 
 V. McClelland 6 M.R. 533 352 
 
 V. McMillan. : 16 M.R. 604 215 
 
 Shields v 13 C.L.T. Occ. N. 418 1124 
 
 — • — V 9 M.R. 182 1099 
 
 • V. Re Kennedy 9 M.R. 599 1126 
 
 McLatchie j>. McLeod 6 M.R. 452 426 
 
 McLaughlin, Budd v 10 M.R. 75 709 
 
 Kelly V 21 M.R. 789 1049 
 
 McLean, First National Bank v 16 M.R. 32 96 
 
 Freehold Loan Co. v 8 M.R. 116 720 
 
 V 8 M.R. 334 389 
 
 : V 9 M.R. 15 736 
 
 — Gait V 6 M.R. 424 584 
 
 t). Kingdon Printing Co 18 M.R. 274 841 
 
 Mercer w T.W. 95 275 
 
 - V. Merchants Bank ,. . 1 M.R. 178 ' 409 
 
 — ■ Merchants Bank v 5 M.R. 219 579 
 
 ■ Pelekaise v 18 M.R. 421 168 
 
 — -«;. Shields 1 M.R. 278 91 
 
 Waterous Engine Works Co. j;... 2 M.R. 279 84 
 
 McLeish, Bradley v 1 M.R. 103 591 
 
 McLellan v. Mun. of Assiniboia 5 M.R. 127, 265 1080 
 
 V. — 5 M.R. 299 879 
 
 McLenaghan v. Hetherington 8 M.R. 367 738 
 
 V. Hood 15 M.R. 510 801 
 
TABLE OF CASES DIGESTED. Ixvii 
 
 Column 
 Volume. of Digest. 
 
 McLeneghen, Heath v 5 W.L.R. 358 214 
 
 McLennan, Gray v 3 M.R. 337 459 
 
 ■ Northern Elevator Co. v.... 14 M.R. 147 47 
 
 Veitch V 3 M.R. 383 850 
 
 ^ w. Winnipeg 3 M.R. 82 250 
 
 V. 3 M.R. 474 688 
 
 McLeod, Brenchley v 12 M.R. 647 36 
 
 McLatchie v 6 M.R. 452 426 
 
 McMahon v. Biggs 4 M.R. 84 903 
 
 McMain v. Obee 10 M.R. 391 270 
 
 McManus v. Wilson 17 M.R. 567 1106 
 
 Wishart v 1 M.R. 213 674 
 
 McMaster v. Canada Paper Co 1 M.R. 309 376 
 
 V. Jasper 3 M.R. 605 581 
 
 V. Jones 6 M.R. 186 64 
 
 McMeans, Robertson v 1 M.R. 348 1220 
 
 McMicken, Bakewell v 3 M.R. 244 891 
 
 V. Clarke T.W. 157 520 
 
 V. Fonseca 6 M.R. 370 1134 
 
 y. Ontario Bank 6 M.R. 155 1141 
 
 — V. — 7 M.R. 203 1038 
 
 V. 8 M.R. 613 243 
 
 — • V. 20 S.C.R. 548 284 
 
 McMillan, American Abell Co. w 19 M.R. 97 347 
 
 ■ — y 42 S.C.R. 377 347, 533 
 
 V. Bartlett 2 M.R. 374 503 
 
 V. Byers 3 M.R. 361 392 
 
 V. 4 M.R. 76 224, 392 
 
 ■ V. 15 S.C.R. 194 224, 392 
 
 — ■ .V. Manitoba & N. W. R.' . . . 4 M.R. 220 985 
 
 McArthur v 3 M.R. 152 99 
 
 — V 3 M.R. 377 99 
 
 • McLaren y 16 M.R. 604 215 
 
 — — N. W. Timber Co. t; 3 M.R. 277 1094 
 
 V. Portage la Prairie 11 M.R. 216 765 
 
 Richardson v 18 M.R. 359 404 
 
 t). Williams .• . . . 9 M.R. 627 592 
 
 McMonagle v. Orton 5 M.R. 193 325 
 
 V. ■ 6 M.R. 350 65 
 
 McMullen, McKenzie v 16 M.R. 11 393 
 
 McNabb, Gault v. - 1 M.R. 35 464 
 
 McNaughton v. Dobson 5 M.R. 315 1141 
 
 McNichol, Malcolm v 16 M.R. 411 794 
 
 V 39 S.C.R. 265 794 
 
 McPhail V. Clements. 1 M.R. 165 1064 
 
 McPherson v. Edwards 14 W.L.R. 172 391 
 
 V. 16 W.L.R. 648 391 
 
 V. — 19 M.R. 337 22 
 
bcviii TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 McPherson, Manitoba & N. W. Loan Co. v. 9 M.R. 210 1149 
 
 McPhillips, Re 6 M.R. 108 1117 
 
 w. Wolf 4 M.R. 300 581 
 
 McQuarrie, Le Neveu v 21 M.R. 399 1189 
 
 McQueen, McDonald v 9 M.R. 315 486 
 
 McRae !;. Corbett 6 M.R. 426 1072 
 
 V. 6 M.R. 536 45 
 
 v. Elmshurst 18 M.R. 315 655 
 
 McRobbie, Coburn v '. 9 M.R. 375 1109 
 
 V. Torrance 5 M.R. 114 99 
 
 McVicar, Carroll v. .-. 15 M.R. 379 694 
 
 McWilliams f. Bailey 9 M.R. 563 905 
 
 Nagel, Streimer v : 19 M.R. 714 211 
 
 Nagengast v. Miller 3 M.R. 241 506 
 
 Nagy V. Manitoba Free Press 16 M.R. 619 1114 
 
 V. 39 S.C.R. 340 1114 
 
 Nanton, McKay v 7 M.R. 250 1009 
 
 -^ t;. Villeneuve 10 M.R. 213 1078 
 
 Nash, Ashdown v 3 M.R. 37 583 
 
 National Elec. Man. Co. v. Manitoba Elec. 
 
 & Gas Light Co 9 M.R. 212 511 
 
 National Life Ass. Co., Timmons v 18 M.R. 465 878 
 
 — V 19 M.R. 139 865 
 
 ■ ■ V 19 M.R. 2?7 878 
 
 National Supply Co. v. Horrobin 16 M.R. 472 696 
 
 National Trust Co. v. Campbell 17 M.R. 587 - , , 718 
 
 — t). Hughes 14 M.R. 41 633 
 
 (Kinsey v ■. . . . 15 M.R. 32 231 
 
 ^- V. Proulx 20 M.R. 137 • 339 
 
 Smith V 20 M.R. 522 722 
 
 ' V 45 S.C.R. 618 722 
 
 Neary, Law v \ 10 M.R. 592 1149 
 
 Nelson v. Gurney T.W. 173 426 
 
 Neufeld, Colwell v 19 M.R. 517 1184 
 
 — — ■ V. 1 W.W.R. 779 1184 
 
 Nevms, Re 5 M.R. 137 663 
 
 New Hamburg Man. Co. w. Shields 16 M.R. 212 222 
 
 Newman v. Lyons 8 M.R. 271 488 
 
 Newton, Bank of Ottawa v 16 M.R. 242 60 
 
 — ■ V. Bergman 13 M.R. 563 64 
 
 V. Foley 20 M.R. 519 58 
 
 «). Lilly..., 16 M.R. 39 496 
 
 Nicastro, Eggertson v 21 M.R. 256 486 
 
 Nichol V. Gocher 12 M.R. 177 541 
 
 Nicholson v. Petierson 18 M.R. 106 710 
 
 Nickel, Mcintosh v 4 M.R. 51 . 1044 
 
 Nicol, Lawlor v 12 M.R. 224 73 
 
TABLE OF CASES DIGESTED. ' xix 
 
 Column 
 Volume. of Digest. 
 
 Nicolson and Railway Commissioner, Re 6 M.R. 419 49 
 
 — i 7 M.R. 400 50 
 
 Nixon V. Betsworth . 16 M.R. 1 905 
 
 Hay V ; 7 M.R. 579 1012 
 
 V. Logie 4 M.R. 366 1203 
 
 Noble V. Campbell 20 M.R. 232 733 
 
 V. 21 M.R. 597 716 
 
 V. Turtle Mountain 15 M.R. 514 754 
 
 North American Life Ass. Co. «). Sutherland 3 M.R. 147 570 
 
 North Cypress, Re 18 M.R. 315 655 
 
 «. C. P. R 14 M.R. 382 119 
 
 V. — 35 S.C.R. 550 120 
 
 North Dufferin, Bernardine v. . 6 M.R. 88 239 
 
 — — ■ V 19 S.C.R. 581 239 
 
 North Dufferin Election, Re 4 M.R. 259 813 
 
 — • — 4 M.R. 280 368 
 
 North Norfolk, Curran v, 8 M,R. 256 34, 761 
 
 North of Scotland Canadian Mortgage Co. 
 
 ' V. Thompson 13 M.R. 95 1007 ' 
 
 Northern Bank, Pickup v 18 M.R. 675 84 
 
 — Constructions, Re 19 M.R. 528 ' 150 
 
 Elevator Co. v. McLennan.. . . 14 M.R. 147 47 
 
 Pacific Express Co., Martin v. 10 M.R. 595 70 
 
 — — 2;.26 S.C.R. 135 70 
 
 : — & Man. Ry. Co., C.P.R. v. 5 M.R. 301 ' 561 
 
 North- West Commercial Travellers' Ass. v. 
 
 London Guar. & Ace. Co 10 M.R. 537 4 
 
 Construction Co. v. Valle . . 16 M.R. 201 190 
 
 Elec. Co., Walsh v 11 M.R. 629 157 
 
 — — V 29 S.C.R. 33 158 
 
 Farmer v. Carman 6 M.R. 118 516 
 
 Navigation Co. v. Walker. . 3 M.R. 25 774 
 
 V. . . 4 M.R. 406 775 
 
 r- — — i>. . . 5 M.R. 37 774 
 
 Thompson & Huston Elec. 
 
 Co. Claimants, Re 8 M.R. 48 897 
 
 Thresher Co. v. Bourdin ... 20 M.R. 505 476 
 
 V. Darrell. ... 15 M.R. 553 1061 
 
 Timber Co. v. McMillan.... 3 M.R. 277 1094 
 
 North Western National Bank v. Jarvis. 2 M.R. 53 173 
 
 Register Co., Robertson v. 19 M.R. 402 101 
 
 NoTthwood, Bell v 3 M.R. 514 220 
 
 Canadian Bank of Commerce v. 5 M.R. 342 264 
 
 Nugent, Haffield v. ■. 6 M.R. 547 439, 1122 
 
 — — Preston v 13 M.R. 511 1119 
 
 Nunn, Parker v 2 M.R. 30 255 
 
 Rex V 15 M.R. 288 744 
 
 — Rogers and, Re -. . 15 M.R. 288 744 
 
Ixx TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 O'Brien, Davis f 18 M.R. 97 117 
 
 Fair v 3 M.R. 680 1099 
 
 O'Connor, Re 12 M.R. 325 10 
 
 V. Brown 5 M.R. 263 243 
 
 and Chadwick, Re T.W. 293 646 
 
 — V. Fahey 12 M.R. 325 10 
 
 V. Kyle 2 M.R. 220 122 
 
 V. Peltier 18 M.R. 91 608 
 
 and Ward, Re T.W. 284 645 
 
 O'Donohue v. Fraser 4 M.R. 469 266 
 
 V. Swain 4 M.R. 476 86 
 
 O'Keefe, Feneron v 2 M.R. 40 678 
 
 O'Neil, Munroe « -. . 1 M.R. 245 940 
 
 O'Reilly, Johnston v 16 M.R. 405 1147 
 
 Oakes, Simpson v 14 M.R. 262 1161 
 
 Oakland Municipality, Re 19 M.R. 465 658 
 
 — 19 M.R. 692 652 
 
 • Hatch t) 19 M.R. 692 652 
 
 Obee, McMain v 10 M.R. 391 270 
 
 Ogilvie Milling Co., McEdwards v 4 M.R. 1 683 
 
 V 5 M.R. 77 683 
 
 V. Small '2 M.R. 120 261 
 
 Oleson V. Jonasson 16 M.R. 94 338 
 
 Oliver v. Slat^ : 16 W.L.R. 107 1005 
 
 Ontario Bank v. Gibson 3 M.R. 406 90 
 
 — V. 4 M.R. 440 90 
 
 ^?;. Haggart. 5 M.R. 204 518 
 
 — !). Miner T.W. 167 129,500 
 
 V. McArthur 5 M.R. 381 82 
 
 McMicken v 6 M.R. 155 1141 
 
 — V 7 M.R. 203 1038 
 
 V 8 M.R. 513 243 
 
 V 20 S.C.R. 548 234 
 
 V. Page 3 M.R. 677 . 507 
 
 V. Smith 6 M.R. 600 676 
 
 V. Sutherland 3 M.R. 261 889 
 
 Oregon & Transcontineiital Ry. Co.. 
 
 Crotty V. ... 3 M.R. 182 461 
 
 Orr V. Barrett 6 M.R. 300 32 
 
 Orris, Waterous v 6 M.R. 177 1132 
 
 Orton V. Brett 12 M.R. 448 897 
 
 McMonagle v 5 M.R. 193 325 
 
 V 6 M.R. 350 65 
 
 Osberg, Rex « 15 M.R. 147 284 
 
 Osborne v. Carey 5 M.R. 237 480 
 
 Cotter -v 16 M.R. 395 563 
 
 V 17 M.R. 164 894 
 
 V 17 M.R. 248 193 
 
TABLE OF CASES DIGESTED. Ixxi 
 
 Column 
 Volume. of Digest. 
 
 Osborne, Cotter v 18 M.R. 471 1169 
 
 V 19 M.R. 145 377 . 
 
 V. Inkster 4 M.R. 399 1093 
 
 Osier, Re T.W. 205 1117 
 
 rac3 V 21 M.R. 641 114 
 
 Otto V. Connery 16 M.R. 532 514 
 
 Ottoson, , Gaar Scott Co. ?; 21 M.R. 462 229 
 
 Overend, Cameron v 15 M.R. 408 1112 
 
 Owens V. Burgess 11 M.R. 75 443 
 
 Latta V 10 M.R. 153 964 
 
 Pacific Coast Lumber Co., Creighton v. 12 M.R. 546 1059 
 
 Pacaud v. Dubord 3 M.R. 15 669 
 
 Page, Ontario Bank v..'. 3 M.R. 677 507 
 
 Paget V. Bennetto . .' 17 M.R. 356 1186 
 
 Paisley v. Bannatyne 4 M.R. 255 911 
 
 Palmatier, Moir v 13 M.R. 34 1194 
 
 Parent v. Bourbonniere 13 M.R. 172 1196 
 
 Parenteau v. Harris ' 3 M.R. 329 535 
 
 Parks y. C. N. R 21 M.R. 103 984 
 
 Parker, Czuack v 15 M.R. 456 1208 
 
 Douglas V 12 M.R. 152 31 
 
 — ■ V. Nunn 2 M.R. 30 255 
 
 Proctor V 11 M.R. 485 1034 
 
 — V 12 M.R. 528 87, 297 
 
 Reg. V 9 M.R. 203 291 
 
 Parkes, Bertrand v 8 M.R. 175 491 
 
 Parmenter, Chevrier v 7 M.R. 194 800 
 
 Paterson v. Brown 11 M.R. 612 739 
 
 V. Houghton 19 M.R. 468 1214 
 
 Paton, Simpkin v 18 M.R. 132 203 
 
 Patterson, Re 5 M.R. 274 858 
 
 V. Central Canada Ins. Co.... 20 M.R. 295 451 
 
 «. Delorme 7 M.R. 594 194 
 
 V. Kennedy 2 M.R. 63 576 
 
 Patton V. Pioneer Navigation & Sand Co. 16 M.R. 435 562 
 
 V. 21 M.R. 405 563 
 
 Paulson's Claim, Re 7 M.R. 602 1250 
 
 Peace, Brown v. 11 M.R. 409 482 
 
 Pearce, CodviUe v 13 M.R. 468 424 
 
 Pearson j;. C. P. R « 12 M.R. 112 1260 
 
 Calloway v 6 M.R. 364 570 
 
 Coates t) 16 M.R. 3 869 
 
 V. St. Jean Baptiste Centre .... 2 M.R. 161 854 
 
 Wickson V 3 M.R. 457 1193 
 
 Pease v. Randolph 21 M.R. 368 106 
 
 Pedlar t>. C. N. R 18 M.R. 525 993 
 
Ixxii TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Pedlar a. C. N. R / 20 M.R. 265 993 
 
 Pelekaise v. McLean 18 M.R. 421 168 
 
 Weidman n 2 W.L.R. 308 1204 
 
 Peltier/ O'Connor v 18 M.R. 91 608 
 
 Pembina Municipality, Re 19 M.R. 285 655' 
 
 ■Penner v. WinHer 15 M.R. 428 351 
 
 Penskalski, Maber v 15 M.R. 236 1130 
 
 Pepper, Rex i; 19 M.R. 209 304 
 
 Percival, Blackwdod v 14 M.R. 216 941 
 
 Perks V. Scott ., , 21 M.R. 570 1187 
 
 Perret, Acme Silver Co. v 4 M.R. 501 1055 
 
 Perrett, Winnipeg Jewelry Co. t) 9 M.R. 141 592 
 
 Perrin, Massey Man. Co. «) 8 M.R. 457 89 
 
 Perry, Cameron v 2 M.R. 231 25 
 
 V. Manitoba Milling Co 15 M.R.- 523 219 
 
 Peters, Merchants Bank v 1 M.R. 372 575 
 
 Robock V 13 M.R. 124 693 
 
 Peterson, Dundee Mortgage Co. «; 6 M.R. 65 875 
 
 V 6 M.R. 66 474 
 
 Nicholson v 18 M.R. 106 710 
 
 Reg. V 6 M.R. 311 314 
 
 Vanderlip v 16 M.R. 341 194 
 
 Pettit V. Kerr 5 M.R. 359 607 
 
 Phair, Whitla v 12 M.R. 122 211 
 
 Phelan v. Franklin 15 M.R. 520 698 
 
 Philion, Carscaden v 9 M.R. 135 676 
 
 Phillips w. C. P. R '. 1 M.R. 110 978 
 
 Electrical Works v. Armstrong . . 8 M.R. 48 897 
 
 — ^^ — McCuaig V 10 M.R. 694 22 
 
 V. Prout 12 M.R. 143 731 
 
 V. Sutherland 22 M.R. 491 555 
 
 Phoenix Ins. Co. of Brooklyn, Levi v.... 17 M.R. 61 870 
 
 — Rogers v. 10 M-.R. 667 52 
 
 Picard, Rex v 17 M.R. 343 290 
 
 Pickup V. Northern Bank 18 M.R. 675 ' 84 
 
 Pike, Reg. v 12 M.R. 314 459 
 
 Pion V. Romieux . .• 7 M.R. 591 249 
 
 Pioneer Navigation & Sand Co., Patton v. 16 M.R. 435 562 
 
 — V. 21 M.R. 405 • 563 
 
 Plante, Reg. v ; 7 M.R. 537 302 
 
 Piatt, Callaway v.. 17 M.R. 485 1024 
 
 Plaxton V. Monkman * . . 1 M.R. 371 580 
 
 -. — — Vivian v 2 M.R. 124 1097 
 
 Plummer Wagon Co. v. Wilson 3 M.R. 68 621 
 
 Pockett V. Pool. . ., 11 M.R. 275 56 
 
 -y^'- V. ........:. 11 M.R. 508 107 
 
 I^oliquin v. St. Boniface .'. .' 17 M.R. 693 1203 
 
 '*'''" ' V. Goldst^n 10 M.R. 631 874 
 
 r,' 
 
TABLE OF CASES DIGESTED. kxiii 
 
 Column 
 Volume. of Digest. 
 
 Poison V. Burke 5 M.R. 31 259 
 
 Larkin v 19 M.R. 612 658 
 
 Pontel, Primeau v 15 M.R. 360 87 
 
 Ponton V. Winnipeg 17 M.R. 496 745 
 
 V. — 41 S.C.R. 18 745 
 
 Pool, Pockett V 11 M.R. 275 56 
 
 — V 11 M.R. 508 107 
 
 Popple, Watt V 16 M.R. 348 881 
 
 Portage la Prairie, Atcheson v 9 M.R. 192 752 
 
 ■ V 10 M.R. 39 750 
 
 ■ Election Petition, Re 16 M.R 249 363 
 
 ■■ Heath v tS M.R. 693 529 
 
 : Kennedy v 12 M.R. 634 758 
 
 — — ■ — Macarthur v 9 M.R. 588 239 
 
 Man. Co., Brown v. . 3 M.R. 245 577 
 
 : McMillan v: . : 11 M.R. 216 765 
 
 Re Mun. of 20 M.R. 469 650 
 
 Rex V 2 W.L.R. 141 806 
 
 Rural Mun. of, Atche- 
 son V. 10 M.R. 39 750 
 
 Shaw V 20 M.R. 469 650 
 
 — ' — ■— Smith V. Public Parks 
 
 Board of . . 15 M.R. 248 965 
 Portage, Westbourne and North Western 
 
 Ry. Co., Armstrong v 1 M.R. 344 153 
 
 Porte, Rex v : 18 M.R. 222 290 
 
 Porteous, Mawhinney v 17 M.R. 184 1227 
 
 Porter, Sylvester v 11 M.R 98 212 
 
 Portigal, Re Sutherland and 12 M.R. 543 613 
 
 Pontel, Primeau v 15 M.R. 360 87 
 
 Poudrier, Brisebois v 1 M.R. 29 267 
 
 Poyner, Bank of Montreal v 7 M.R. 270 955 
 
 Prairie City Oil Co. v. Standard Mutual i 
 
 Fire Ins. Co 19 M.R. 720 447 
 
 Pratt V. Wark 2 M.R,. 213 847 
 
 Preston v. Nugent 13 M.R. 511 1119 
 
 Sinclair v i . . . 13 M.R. 228 213 
 
 V 31 S.C.R. 408 213,572 
 
 Price, Checkik v 18 W.L.R. 253 1057 
 
 Primeau v. Mouchelin 15 M.R. 360 87 
 
 w. Pontel ■ 15 M.R. 360 87 
 
 Pritchard, Bannatyne v ^ 16 M.R. 407 1086 
 
 — V. Hanover . . . ; , . 1 M.R. 72 1166 
 
 —^ V. 1 M.R. 366 849 
 
 — Steele v. 17 M.R. 226 703 
 
 Prittie, Imperial "Bank v 1 M.R. 31 889 
 
 Meyers v 1 M.R. 27 465 
 
 Monkman v. . .'. 3 M.R. 684 247 
 
Ixxiv TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Proctor V. Parker 11 M.R. 485 1034 
 
 V. 12 M.R. 528 87, 297 
 
 Proskouriakoff, Emperor of Russia v. ... 18 M.R. 56 597 
 
 V 42 S.C.R. 226 597 
 
 ■■ V 18 M.R. 143 44 
 
 Protestant School District of Bradley, 
 
 Moore v 5 M.R. 49 24 
 
 Proulx, National Trust Co. «; 20 M.R. 137 339 
 
 Prout, Phillips v 12 M.R. 143 731 
 
 V. Rogers Fruit Co 18 M.R. 240 1058 
 
 Pravencher Dominion Electien, Re 13 M.R. 444 371 
 
 Province of Manitoba and C.P.R. 9 C.L.T. Occ. N. 126 187 
 
 Prudhomme, Reg. v 4 M-R. 259 813 
 
 Pulkrabek v. Russell 18 M.R. 26 528 
 
 Qu'Appelle Valley Farming Co., Re . . . 5 M.R. 160 • 1252 
 
 Quebec Bank j;. Miller 3 M.R. 17 - 82 
 
 Queen v. Robertson 3 M.R. 613 179 
 
 Queen's Counsel, Re 8 M.R. 155 968 
 
 Quesnel, Tuttle v 19 M.R. 20 969 
 
 V 19 M.R. 23 969 
 
 Quintal v. Chahners 12 M.R. 231 1176 
 
 R. A., an Attorney, Re 6 M.R. 398 1114 
 
 — — 6 M.R. 601 1116 
 
 11 C.L.T. Occ. N. 208 1115 
 
 Rae, Inman v 10 M.R. 411 131 
 
 Railway Commissioner and Nicolson, Re 6 M.R. 419 49 
 
 7 M.R. 400 50 
 
 — Rowand v 6 M.R. 401 . 49 
 
 — and Scott, Re . . . 6 M.R. 193 981 
 
 Rajotte f . C. P. R 5 M.R. 297 601 
 
 V. 5 M.R. 365 785 
 
 Ramsay, Re 10 M.R. 411 131 
 
 Steele v 3 M.R. 305 39 
 
 Randolph, Pease v 21 M.R. 368 106 
 
 Rankin, Harris j; 4 M.R. 115 532,533,1035 
 
 V 4 M.R. 512 532 
 
 V. McKenzie 3 M.R. 323 280 
 
 V. 3 M.R. 554 260 
 
 Rapid City Farmers' Elevator Co., Re. . 9 M.R. 571 1243 
 
 ' . . 9 M.R. 574 1246 
 
 . . 10 M.R. 681 1252 
 
 Currie v. 12 M.R. 105 1217 
 
 Vulcan Iron Works Co. v. 9 M.R. 577 455 
 
 Rat Portage Lumber Co. v. Equity Fire 
 
 ' Ins. Co 17 M.R. 33 877 
 
 Rathwell, Hatch t; 19 M.R. 465 658 
 
TABLE OF CASES DIGESTED. bcxv 
 
 Column 
 Volume. of Digest. 
 
 Rea, Logan v 14 M.R. 543 479 
 
 Real Estate Loan Co. v. Molesworth ... 2 M.R. 93 408 
 
 V. 1 ... 3 M.R. 116 944 
 
 — V. ... 3 M.R. 176 1103 
 
 Red River Bridge Co., Rolston v 1 M.R. 235 774 
 
 Transportation Co., Trottier v. T.W. 255 125 
 
 Redd, Rex « 21 M.R. 785 301 
 
 Reed y. Smith 1 M.R. 341 1071 
 
 Reg. V. Anderson T.W. 177 699 
 
 V. Barnes 4 M.R. 448 304 
 
 - V. Beale 11 M.R. 448 315 
 
 V. Biggs 2 M.R. 18 'Ml 
 
 V. Blackstone 4 M.R. 296 469 
 
 - t). Brice 7 M.R. 627 285 
 
 V. Bryant 3 M.R. 1 237 
 
 - V. Buchanan 12 M.R. 190 315 
 
 V. Burke 6 M.R. 121 433 
 
 ■ ^ w. CaUoway 3 M.R. 297 969 
 
 V. Cavelier. 11 M.R. 333 313 
 
 - V. Chamberlain 10 M.R. 261 831 
 
 V. Chishohn, Jacob's Case 7 M.R. 613 284 
 
 V. Cloutier 12 M-R- 183 308 
 
 V. Collins 5 M.R. 136 236 
 
 «. Coulter 4 M.R. 309 644 
 
 V. Crossen 12 M.R. 571 294 
 
 V. Crothers, 11 M.R. 567 638 
 
 • V. Davidson 8 M.R. 325 303 
 
 - V. Deegan. 6 M.R. 81 308 
 
 V. Douglas 11 M.R. 401 287 
 
 V. Drain 8 M.R. 535 283 
 
 ^— V. Earl 10 M.R. 303 301 
 
 «). Egan 11 M.R. 134 297 
 
 • V. Fawcett ! 13 M.R. 205 347 
 
 V. Galbraith 6 M.R. 14 296 
 
 V. Gibbons 12 M.R. 154 286 
 
 - V. Gilboy 7 M.R. 54 306 
 
 V. Goldstaub .10 M.R. 497 308 
 
 V. Grannis 5 M.R. 153 640 
 
 V. Great West Laundry Co 13 M.R. 66 292 
 
 V. Hamilton 12 M.R. 354 387 
 
 V. 12 M.R. 507 312 
 
 • V. Herman : . . 8 M.R. 330 302 
 
 V. Herrell 12 M.R. 198 641 
 
 V. 12 M.R. 522 640 
 
 V. Hodge 12 M.R. 319 313 
 
 V. Holden 3 M.R. 579 304 
 
Ixxvi TABLE OF CASES DIGESTED. ' , 
 
 V Column 
 Volume. of Digest. 
 
 Reg. V. Holman 10 M.R. 272 74 
 
 J). House 2 M.R. 58 305 
 
 V. Howes 5 M.R. 339 290 
 
 - z;. Jewell '! 6 M.R. 460 310 
 
 y. Johnson 14 M.R. 27 291 
 
 V. Kennedy 10 M.R. 338 305 
 
 V. Lacoursiere 8 M.R. 302 236 
 
 ■ V. Le Blanc 13 C.L.T. Occ. N. 441 301 
 
 V. Leveque 3 M.R. 582 60l 
 
 ■ V. Monkman 8 M.R. 509 294 
 
 V. Morgan 5 M.R. 63 312 
 
 V. McDonald and Vanderberg 8 M.R. 491 285 
 
 V. McKenzie 2 M.R. 168 307 
 
 ^ — V. Parker 9 M.R. 203 , 291 
 
 V. Peterson 6 M.R.' 311 314 
 
 V. Pike : 12 M.R. 314 459 
 
 V. Plante 7 M.R. 537 302 
 
 t;. Prudhomme 4 M.R. 259 813 
 
 V. Riel 2 M.R. 321 314 
 
 V. Robertson 3 M.R. 613 179 
 
 V. Rowe T.W. 309 191 
 
 V. Saunders 11 M.R. 559 313 
 
 V. Shaw. 4 M.R. 404 305 
 
 V. • . . : 7 M.R. 518 178 
 
 , V. Starkey ' 6 M.R. 588 127 
 
 v. 7 M.R, 43 642 
 
 -v. 7 M.R. 262 262 
 
 — - V. — ^ 7 M.R. 489 643 
 
 V. Vrooman 3 M.R. 509 127 
 
 ■ W.Williams 8 M.R. 342 646 
 
 ■ — - V. Winslow 12 M.R. 649 289 
 
 — ■- V. Zickrick 11 M.R. 452 958 
 
 Reid Estate, Re . . . . : 17 M.R. 652 1123 
 
 ■ v: Gibson 17 C.L.T. Occ. N. 226 570 
 
 Grant v 16 M.R. 527 1130 
 
 — - V. Whiteford 1 M.R. 19 379 
 
 Reidle, Rigby v ' 9 M.R. 139 593 
 
 Renton v. Gallagher 19 M.R. 478 669 
 
 — V. -■ 47 S.C.R. 393 669 
 
 Renwick v. Berryman , . . . 3 M.R. 387 383 
 
 Renter, Morden Woolen Mills Co. v. ... 17 M.R. 557 151 
 
 Rex V. Barnes 21 M.R. 357 299 
 
 — - V. Barre 15 M.R. 420 306 
 
 V. Bond 21 M.R. 366 300 
 
 - — V. Bonnar 14 M.R. 467 672 
 
 — ^ V. No. 2 ■. . . . 14 M.R. 481 192 
 
 -^^ V. Braun -.8 Can. Cr. Cas. 397 1254 
 
 V. Carriere 14 M.R. 52 295 
 
TABLE OF CASES DIGESTED. Ixxvii 
 
 Column 
 Volume. of Digest. 
 
 Rex V. Choney 17 M.R. 467 287 
 
 ■ V. Clegg 18 M.R. 9 714 
 
 V. Douglas 16 M.R. 345 295 
 
 ■ V. Duggan 16 M.R. 440 312 
 
 ■ V. Edwards 17 M.R.- 288 300 
 
 V. Finlay 13 M.R. 383 269 
 
 V. ¥oulkes 17 M.R. 612 296 
 
 V. Gage 18 M.R. 175 176 
 
 w. Glynn..... 19 M.R. 63 715 
 
 V. Grobb 17 M.R. 191 396 
 
 V. Guertin 19 M.R. 33 282 
 
 V. Howell 19 M.R. 317 298 
 
 «. Hurst 13 M.R. 584 288 
 
 V. Kolotyla 21 M.R. 197 304 
 
 — - V. Law 19 M.R. 259 ,311 
 
 — — V. License Commissioners 14 M.R. 535 649 
 
 V. Monvoisin 20 M.R. 568 307 
 
 V. McCoU 21 M.R. 552 1161 
 
 V. McEwen 17 M.R. 477 309 
 
 V. Mcintosh 14 W.L.R. 548 310 
 
 V. Nunn 15 M.R. 288 744 
 
 ■ V. Osberg 15 M.R. 147 284 
 
 V. Pepper 19 M.R. 209 304 
 
 V. Picard 17 M.R. 343 290 
 
 V. Portage la Prairie 2 W.L.R. 141 806 
 
 V. Porte ... 18 M.R. 222 290 
 
 - V. Redd. . . . : 21 M.R. 785 301 
 
 V. Ridehaugh 14 M.R. 434 299 
 
 - V. Ritchie 21 M.R. 255 639 
 
 V. Ross 15 W.L.R. 17 289 
 
 V. Sharp 20 M.R. 555 283 
 
 V. Shing 20 M.R. 214 298 
 
 V. Smith 17 M.R. 282 293 
 
 V. Speed 20 M.R. 33 282 
 
 V. Stark 21 M.R. 345 284 
 
 V. Stewart 6 M.R. 257 666 
 
 V. Suck Sin 20 M.R. 720 665 
 
 - y. Thompson ". 17 M.R. 608 296 
 
 V. Todd 13 M.R. 364 287 
 
 V. Toy Moon 21 M.R. 527 309 
 
 V. Wasyl Kapij : 15 M.R. 110 293 
 
 - V. Young 14 M.R. 58 284 
 
 Rice, Lane v 18 W.L.R. 557 1212 
 
 V. Murray 2 M.R. 37 727 
 
 Richard, Atty. Gen. v 4 M.R. 336 836 
 
 Stewart v 3 M.R. 610 871 
 
 Richards t). Rowe 4 M.R. 112 381 
 
 Richardson, Curtis v ... 18 M.R. 519 696 
 
Ixxvui TABLE OF OASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Richardson v. McClary 16 M.R. 74 919 
 
 V. McMillan 18 M.R. 359 404 
 
 Ridehaugh, Rex w 14 M.R. 434 299 
 
 Riel, Reg. « 2 M.R. 321 314 
 
 Rigby V. Reidle 9 M.R. 139 593 
 
 Rinn, CuUin v 5 M.R. 8 650 
 
 Ripstein v. British Canadian Loan Co. . . 7 M.R. 119 542 
 
 Ritchie y. Grundy 7 M.R. 532 695 
 
 Rex?; 21 M.R. 255 639 
 
 Ritz t;. Froese 12 M.R. 346 843 
 
 - V. Schmidt 12 M.R. 138 884 
 
 V. 13 M.R. 419 1136 
 
 — ^ V. 31 S.C.R. 602 1136 
 
 Riverview Realty Co., Whitla v. ..'... . 19 M.R. 746 1188 
 
 Roach y. C. P. R 1 M.R. 158 977 
 
 Robb, Canada Supply Co. t; 20 M.R. 33 485 
 
 Roberts t;. Hartley 14 M.R. 284 479 
 
 Winthrop v 17 M.R. 220 727 
 
 Robertson v. Brandes 11 M.R. 264 904 
 
 V. Carstens 18 M.R. 227 916 
 
 V. Dumble 1 M.R. 321 1200 
 
 — — Elliott V 10 M.R. 628 895 
 
 Molson's Bank v 5 M.R. 343 602 
 
 y. McMeans 1 M.R. 348 1220 
 
 V. Northwestern Register Co. 19 M.R. 402 101 
 
 Reg. V 3 M.R. 613 179 
 
 V. Winnipeg 6 M.R. 483 852 
 
 V. Wrenn 10 M.R. 378 103 
 
 Robertson's Claim, Re 10 M.R. 61 1253 
 
 . Robinson, Re, and C. N. R 17 M.R. 396 979 
 
 17 M.R. 579 258 
 
 z;. C. N. R 19 M.R. 300 1003 
 
 V. 43 S.C.R. 387 1003 
 
 V. — [1911] A.C. 739 1003 
 
 V. Graham 16 M.R. 69 62 
 
 V. Huston 4 M.R. 71 473 
 
 V. Hutchins 1 M.R. 122 876 
 
 Monkman v 3 M.R. 640 416 
 
 — ' Morrison v 8 M.R. 218 603 
 
 V. Scurry 1 M.R. 257 1042 
 
 V. Sutherland 9 M.R. 199 526 
 
 V. Taylor 10 M.R. 33 34 
 
 — "Walker v 15 M.R. 445 902 
 
 Roblin Municipality, Re 19 M.R. 461 657 
 
 V. Jackson 13 M.R. 328 713 
 
 Robock V. Peters 13 M.R. 124 693 
 
 Roche, King v 11 M.R. 381 354 
 
 V 27 S.C.R. 219 354 
 
TABLE OF CASES DIGESTED. Ixxix 
 
 Column 
 Volume. of Digest. 
 
 Rockwood Election, Re 2 M.R. 129 364 
 
 Electoral Div. Agricultural So- 
 
 ciety, Re 12 M.R. 655 241 
 
 '■ — Municipality, Re 19 M.R. 612 658 
 
 Rodney, Webb v 19 M.R. 120 ' 583 
 
 Roe V. Massey Man. Co 8 M.R. 126 503 
 
 Roff V. Krecker 8 M.R. 230 136 
 
 Rogers v. Braun 16 M.R. 580 201 
 
 ■ Carter v 19 C.L.T. Occ. N. 410 404 
 
 V. Clark 13 M.R. 189 847 
 
 V. Commercial Union -Ass. Co.. . . 10 M.R. 667 52 
 
 — Dart V 21 M.R. 721 1206 
 
 ^ Fruit Co., Prout v 18 M.R. 240 1058 
 
 V. London & Lancashire Ins. Co. 10 M.R. 667 52 
 
 V. London, L'pool & Globe Iris. Co. 10 M.R. 667 52 
 
 — and Nunn, Re 15 M.R. 288 744 
 
 V. Phoenix Ins. Co 10 M.R. . 667 52 
 
 V. Sorell 14 M.R. 450 617 
 
 • Stephens v 6 M.R. 298 575 
 
 Rokeby, Bell «; 15 M.R. 327 . 922 
 
 Commercial Bank v 10 M.R. 281 350 
 
 Rolston V. Red River Bridge Co 1 M.R. 235 774 
 
 Romieux, Pion v : 7 M.R. 591 249 
 
 Roper V. Scott 16 M.R. 594 131 
 
 Rose, Bole v , 10 M.R. 633 898 
 
 V. Clark 21 M.R. 635 795 
 
 Rosen w. Lindsay 17 M.R. 251 701 
 
 Rosenberg v. Tjonchorak ... 18 M.R. 319 253 
 
 Rosenfeldt Election, Re 13 M.R. 87 369 
 
 Ross, Collins V 7 M.R. 581 ^ 356 
 
 ■ V 20 S.C.R. .1 356 
 
 V. Doyle 4 M.R. 434 1065 
 
 V. Goodier 5 W.L.R. 593 508 
 
 V. Matheson 19 M.R. 350 922 
 
 V. Moon 17 M.R. 21 217 
 
 V. Morgan .... 7 M.R. 593 1100 
 
 - Rex y 15 W.L.R. 17 289 
 
 V. Van Etten 7 M.R. 598 416 
 
 Rosser, Bryson v 18 M.R. 658 1222 
 
 Rossiter, Merritt v T.W. 1' 236, 680 
 
 Rothwell V. Milner 8 M.R. 472 1062 
 
 Rourke & Cass's Claim, Re 8 M.R. 424 1249 
 
 Routley, Manitoba & N. W. Loan Co. v. 3 M.R. 296 577 
 
 ■ — y. 3 M.R. 521 1107 
 
 RoWand, Livingstone v 12 C.L.T. 30 843 
 
 ^ — V 8 M.R. 298 245 
 
Ixxx TABLE OF CASES DIGESTED. 
 
 ColumD 
 Volume. of Digest. 
 
 Rowand v. Martin ; . . . 7 M.R. 160 50 
 
 ; V. Railway Commissibner 6 M.R. 401 49 
 
 Rowe, Hill V : 3 M.R. 247 853 
 
 V 19 M.R. 702 ' 1218, 
 
 Reg. V T.W. 309 191 
 
 — — ■ Richards v 4 M.R. 112 381 
 
 Rowes, Manufacturer's Life Ins. Co. v... 16 M.R. 540 86 
 
 Roy V. Henderson 18 M.R. 234 777 
 
 Royal City Planing Mills v. Woods 6 M.R. v 2 ' 40 
 
 Ins. Co., Whitla D 14 M.R. 90 450 
 
 V 34 S.C.R. 191 450 
 
 Lumber Co., Brock v 17 M.R. 351 230 
 
 Royce v. Macdonald 19 M.R. 191 1026 
 
 Royle V. C. N. R 14 M.R. 275 978 
 
 Royston, Re 18 M.R. 539 432 
 
 Ruddell V. Garrett 12 M.R. 563 742 
 
 V. Georgeson 8 M.R. 134 1012: 
 
 V. ...■ 9 M.R. 43 1067 
 
 V. : 9 M.R. 407 1068 
 
 Sinclair y 16 M.R. 53 438- 
 
 Rules of Court . . .' 5 M.R. 435 
 
 8 M.R. 607 
 
 9 M.R. 639 
 
 11 M.R. 661 
 
 15 M.R. 687 
 
 17 M.R. 701 
 
 20 M.R. 743 
 
 Relating to Election Petitions. ... fe M.R. 609 
 
 Rumble, McKay v 8 M.R. 86 37, 887 
 
 Russell, Haddock v 8 M.R. 25 272 
 
 Pulkrabek v 18 MR. 26 528 
 
 Rustin, Fairchild Co. «) 17 M.R. 194 218 
 
 V 39 S.C.R. 274 218 
 
 Rutherford v. Bready 9 M.R. 29 886 
 
 Gerrie v 3 M.R. 291 510 
 
 V. Mitchell 15 M.R. 390 726 
 
 Veli^ V 8 M.R. 168 675. 
 
 W.Walls 8 M.R. 96 956- 
 
 Rutledge, Day v 12 M.R. 290 1075 
 
 V 29 S.C.R. 441 107& 
 
 V. 12 M.R. 309 1093 
 
 V 12 M.R. 451 864 
 
 Hughes v.. 10 M.R. 13 351 
 
 McCaffrey v 2 M.R. 127 259^ 
 
 Ruttan, Hu.dsoii's Bay Co. « 1 M.R. 33Q 1212 
 
 Ryan, Atty. Gen. v... , 5 M.R. 81 317 
 
 Browning v .' 4 M.R. 486 565' 
 
 Jenkins v 5 M.R. 112 246. 
 
TABLE OF CASES DIGESTED. Ixxxi 
 
 Column 
 Volume. of Digest. 
 
 Ryan, Slater t) 17 M.R. 89 1167 
 
 V. Turner 14 M.R. 624 613 
 
 ». Whelan 6 M.R. 565 1076 
 
 — V. — . . 20 S.C.R. 65 1076 
 
 Saltman «. McCoU 19 M.R. 456 727 
 
 Sample, ohn Watson Man. Co. w 12 M.R. 373 634 
 
 Sanderson v. Heap 19 M.R. 122 553 
 
 Sa-iford Estate, Re 18 M.R. 413 422 
 
 Heath v 17 M.R. 101 15 
 
 M neer v 15 M.R. 181 933 
 
 w. McEwan 10 M.R. 630 414 
 
 Saskatchewan Coal Co., Gait v 4 M.R. 304 1251 
 
 ■■ Re 6 M.R. 593 1248 
 
 Saul V. Bateman. ..." 6 M.R. 189 ' 66 
 
 Saults V. Eaket 11 M.R. 597 204 
 
 Saunders, Reg. v 11 M.R. 559 313 
 
 Savage «. C. P. R. ...... . 15 M.R. 401 950 
 
 V. 16 M.R. 376 877 
 
 V. — : . 16 M.R. 381 950 
 
 Sawyer v. Baskerville 10 M.R. 652 198 
 
 Sawyer & Massey Co. v. Ferguson 20 M.R. 451 221 
 
 V. Massey-Harris Co. . . . 18 M.R. 409 272 
 
 Scanlan; Blanchard v 3 M.R. 13 1085 
 
 Scarry & Joyce, Re 6 M.R. 281 420 
 
 y. Wilson .. 12 M.R. 216 1178 
 
 Schack, Cox « 14 M.R. 174 140 
 
 Schaefer v. Schwab : 19 M.R. 212 626 
 
 Schatsky v. Bateman 17 M.R. 347 901 
 
 Schellenburg w. C. P. R 16 M.R. 154 987 
 
 Schilemans, Tellier v 16 M.R. 430 12 
 
 — ~ V 17 M.R. 262 1243 
 
 ^ V 17 M.R. 303 13 
 
 Schmidt v. Douglass 14 C.L.T. Occ. N. 515 580 
 
 Ritz V. 12 M.R. 138 884 
 
 ■ V 13 M.R. 419 1136 
 
 V 31 S.C.R. 602 1136 
 
 Schneide- v. Woodworth 1 M.R. 41 468 
 
 School District of Youville v. Bellemere. 14 M.R. 511 966 
 Trustees of St. Jean Baptiste Centre, 
 
 Pearson v 2 M.R. 161 854 
 
 of Winnipeg v. C. P. R.. 2 M.R. 163 966 
 
 Schultz V. AUoway.. 10 M.R. 221 1070 
 
 V. Archibald 8 M.R. 284 13 
 
 Credit Fonder Franco-Canadien v. 9 M.R. 70 720 
 
 V. 10 M.R. 158 728 
 
 — V. 10 M.R. 417 837 
 
 Fonseca v , 7 M.R. 458 1087 
 
Ixxxii TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Schultz «. Frank 8 M.R. 345 1015 
 
 V. Lyall Mitchell Co 20 M.R. 429 601 
 
 — ^ Sutherland w 1 M.R. 13 376 
 
 V. Winnipeg 6 M.R. 35 179 
 
 • V. 6 M.R. 269 1137 
 
 Schuster, Stark v 14 M.R. 672 188 
 
 Schwab, Schaefer v 19 M.R. 212 626 
 
 Schwartz v. Bielschowsky 21 M.R. 310 587 
 
 V. Winkler 13 M.R. 493 493 
 
 V. 14 M.R. 197 259 
 
 Schweiger v. Vineberg 19 M.R. 328 1059 
 
 Scobell, Man. & N. W. Loan Co. ?;. . . - 2 M.R. 125 736 
 
 Scoble, Vivian v 1 M.R. 125 226, 593 
 
 V 1 M.R. 192 934 
 
 Scoones, Cloilgher v 3 M.R.' 238 577 
 
 Scott and City of Brandon, Re 10 M.R. 494 1163 
 
 t/. C. P. R 19 M.R. 29 787 
 
 V. 19 M.R. 165 788 
 
 Clarke v 5 M.R. 281 531 
 
 ■ Conway v 3 M.R. 557, 636 1043 
 
 ■ Ga'braith « 16 M.R. 594 131 
 
 V. Griffin 6 M.R. 116 684 
 
 ;;. Imperial Loan Co 11 M.R. 190 1085 
 
 ^ Moore v 5 W.L.R. 8 , 836 
 
 V 16 M.R. 428 1095 
 
 V 16 M.R. 492 92 
 
 — — Perks V 21 M.R. 570 1187 
 
 and Railway Commissioner, Re . . . 6 M.R. 193 981 
 
 Roper V 16 M.R. 594 131 
 
 ■ Toronto Land Co. « 1 M.R. 105 946 
 
 • Wallace v 16 M.R. 594 131 
 
 V. Winnipeg 11 M.R. 84 430 
 
 Scottish Man. Investment Co. v. Blanchard 2 M.R. 154 556 
 
 Scoular, Teague v 17 M.R. 593 102, 275 
 
 Scurry, Robics n v 1 M.R. 257 1042 
 
 Seagram, Colquhoun v 11 M.R. 339 498 
 
 SedziaV, Dunn v 17 M.R. 484 110 
 
 Seguin, Thompson v 8 M.R. 79 403 
 
 Selkirk Election Petition, Re 16 M.R. 249 363 
 
 (Town of) V. Selkirk Electric 
 
 Light Co 20 M.R. 461 772 
 
 Sexsmith v. Montgomery 9 M.R. 173 742 
 
 Seymour v. Winnipeg Elec. Ry. Co 19 M.R." 208 605 
 
 V. • — .... 19 M.R. 412 790 
 
 Shantz, Brown v 7 M.R. 42 1098 
 
 Sharp, Mina. Life Ins. Co. t; 11 M.R. 141 890 
 
 V. McBurnie 3 M.R. 161 264 
 
TABLE OF CASES DIGESTED. Ixxxiii 
 
 Column 
 Volume. of Digest. 
 
 Sharp, Rex v 20 M.R. 555 283 
 
 Taylor v 2 M.R. 35 732 
 
 -— V 3 M.R. 4 882 
 
 — V 8 M.R. 163 728 
 
 Sharpe v. Dundas 21 M.R. 194 232 
 
 Shaw V. Bailey 17 M.R. 97 1206 
 
 t). C. P. R 5 M.R. 198 850 
 
 V. 5 M.R. 334 851 
 
 V. 16 S.C.R. 703 851 
 
 V. Portage la Prairie 20 M.R. 469 650 
 
 Reg. V 4 M.R. 404 305 
 
 V 7 M.R. 518 178 
 
 V. Winnipeg 19 M.R. 234 783 
 
 V. 19 M.R. 551 409 
 
 Shea V. George Lindsay Co 20 M.R. 208 624 
 
 Sheldon v. Egan 18 M.R. 221 572 
 
 Shepherd, Major v 18 M.R. 505 1209 
 
 Shields u. McLaren 13 C.L.T. Occ. N. 418 1124 
 
 ■ V. 9 M.R. 182 1099 
 
 V. Re Kennedy 9 M.R. 599 1126 
 
 McLean v 1 M.R. 278 91 
 
 New Hamburg Man. Co. v 16 M.R. 212 222 
 
 Shiels v. Adamson 14 M.R. 703 882 
 
 Shillinglaw v. Whillier 19 M.R. 149 257 
 
 Shing, Rex v 20 M.R. 214 298 
 
 Shirley, Fortier v 2 M.R. 269 1197 
 
 Shoal Lake, Re 20 M.R. 36 654 
 
 — ^ Election, Re 5 M.R. 57 365 
 
 Shondra v. "Winnipeg Electric Ry. Co.... 21 M.R. 622 776 
 
 Shore, Re 6 M.R. 305 723 
 
 Boultbee v T.W. 376 1128 
 
 ■ V 1 M.R. 22 1202 
 
 Green 6 M.R. 322 849 
 
 Shorey v. Baker ... 1 M.R. 282 505 
 
 Short, Ward v. . . . 1 M.R. 328 840 
 
 Young V. 3 M.R. 302 134 
 
 Shragge v. Weidman 20 M.R. 178 177 
 
 rv.- 46 S.C.R. 1 177 
 
 and Winnipeg, Re " 20 M.R. 1 1001 
 
 Shrimpton v. Winnipeg 13 M.R. 211 770 
 
 Sifton V. Coldwell 11 M.R. 653 1105 
 
 Simon, Re 19 M.R. 450 1235 
 
 ■ Egan V 19 M.R. 131 926 
 
 Gilmour v 15 M.R. 205 912 
 
 -. V 37 S.C.R. 422 912 
 
 Inch V 12 M.R. 1 130 
 
 V. Sinclair 17 M.R. 389 381 
 
Ixxxiv TABLE OF CASES DIGESTED. 
 
 . Column 
 Volume. of Digest. 
 
 Simpkin v. Paton 18 M.R. 132 203 
 
 Simpson, Central Electric Co. d 8 M.R. 94 1153 
 
 V. Dominion Bank 19 M.R. 246 543 
 
 V. EUis T.W. 31 324 
 
 — Jones V 8 M.R. 124 1006 
 
 • Mey V 17 M.R. 597 710 
 
 V 42 S.C.R. 230 710 
 
 V. McDonald 6 M.R. 302 875 
 
 ■ V. Oakes . . . .' 14 M.R. 262 1161 
 
 V. Stewart 10 M.R. 176 397 
 
 Sinclair, Gemmel v 1 M.R. 85 1071 
 
 V. Mulligan 3 M.R. 481 181 
 
 V. 5 M.R. 17 181 
 
 V. Preston > 13 M.R. 228 213 
 
 V. 31 S.C.R. 408 213, 572 
 
 — V. Ruddell 16 M.R. 53 438 
 
 ■ Simon v 17 M.R. 389 381 
 
 Singer Sewing Machine Co., Freeborn v. 2 M.R. 253 623 
 
 Sinnott, Bisson t; 1 M.R. 26 860 
 
 Monkman v 3 M.R. 170 259 
 
 Skulak v. C. N. R 20 M.R. 242 992 
 
 Slater, Re 14 M.R. 523 555 
 
 Oliver v 16 W.L.R. 107 1005 
 
 V. Ryan 17 M.R. 89 1167 
 
 Slingerland v. Massey Man. Co 10 M.R. 21 536 
 
 Slingsby Man. Co. v. Geller 17 M.R. 120 824 
 
 Slouski V. Hopp 15 M.R. 548 711 
 
 Small, Ogilvie Milling Co. v. 2 M.R. 120 261 
 
 Smart v. Moir 7 M.R. 565 861 
 
 V. 8 M.R. 203 254 
 
 Smith V. American-Abell Engine Co 17 M.R. 5 169 
 
 Bergman v 11 M.R. 364 600 
 
 Blair v 1 M.R. 5 1164 
 
 — — Brimstone v 1 M.R. 302 476 
 
 V. Canada Cycle & Motor Co 20 M.R. 134 851 
 
 V. Dim 21 M.R. 583 627 
 
 V. Edmmids 10 M.R. 240 903 
 
 Faurclough v 13 M.R. 509 697 
 
 Friesen v 8 M.R. 131 271 
 
 V. Galbraith 1 W.L.R. 227 97 
 
 ■ V. Grouette, ; . . . 2 M.R. 314 928 
 
 ■ Haverson v , 16 M.R. 204 1054 
 
 Imperial Bank v 8 M.R. 440 414 
 
 • Leng V 14 M.R. 258 1017 
 
 Re Magee and 10 M.R. 1 618 
 
 Murray v 14 M.R. 125 706 
 
 V , 21 M.R. 753 890 
 
TABLE OF CASES DIGESTED.. Ixxxv 
 
 Column 
 Volume. of Digest. 
 
 Smith V. National Trust Co 20 M.R. 522 722 
 
 45 S.C.R. 618 722 
 
 V. 
 
 — Ontario Bank v '6 M.R. 600 675 
 
 V. Public Parks Board of P. la P. . 15 M.R. 248 965 
 
 Reed v 1 M.R. 341 1071 
 
 Rex ti 17 M.R. 282 293 
 
 V. Smyth 9 M.R. 569 34 
 
 V. Squires 13 M.R. 360 395 
 
 V. Strange - 2 M.R. 101 842' 
 
 V. Thiesen 20 M.R. 120 823 
 
 V. Union Bank 11 M.R. 182 812 
 
 V. Van Buren 17 M.R. 49 518 
 
 Van Whort v 4 M.R. 421 140 
 
 West WinnipegDevelopmentCo.and 20 M.R. 274 246 
 
 Wilson V 9 M.R. 318 63 
 
 Smythe v. Mills 17 M.R. 349 853 
 
 ■ Smith V 9 M.R. 569 34 
 
 Snider v. Boyd . . . .' 11 M.R.. 398 355 
 
 Turner «..: 16 M.R. 79 793 
 
 ^ V. Webster 20 M.R. 562 1214 
 
 ■ '■ V. ■ 45 S.C.R. 296 1214 
 
 Snow, Western Canada Loan Co. v 6 M.R. 317 484 
 
 : . — V 6 M.R. 606 478 
 
 Snowden, Harvie v 9 M.R. 313 603 
 
 Soames, Boyce v 16 M.R. 109 5 
 
 Somerville, Re 19 M.R. 355 643 
 
 Sorell, Rogers v 14 M.R. 450 617 
 
 South Cypress, Re.. . . ... 20 M.R. 142 651 
 
 Dufferin, Morden v 6 M.R. 515 179 
 
 V 19 S.C.R. 204 180 
 
 South Norfolk, Re Caswell and 15 M.R. 620 657 
 
 Hall V 8 M.R. 430 654 
 
 — V. Warren 8 M.R. 481 957 
 
 — — Winnipeg, Board of Registrars for. 
 
 Re 13 M.R. 345 959 
 
 Spain, Lafferty y 7 M.R. 32 880 
 
 Sparham v. Carley.. . 7 M.R. 611 876 
 
 V. 8 M.R. 246 83 
 
 — V. 8 M.R. 448 334 
 
 Sparling v. Houlihan . . 14 M.R. 124 709 
 
 Sp.eed, Rex v '. . 20 M.R. 33 282 
 
 Spence, McKenney v. T.W. 11 352, 377, 378 
 
 Tees V 3 M.R. 430 852 
 
 — Whitla V 5 M.R. 392 885 
 
 Speton V. Gilmour ... 14 M.R. 706 861 
 
 Spicer, Vassar v 21 M.R. 777 929 
 
 Sprague v. Besant 3 M.R. 519 690 
 
 ' V. Graham : . . . 7 M.R. 398 1015 
 
Ixxxvi TABLE OF CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Springdale School District v, C. P. R: . . 14 M.R. 382 119 
 
 V. . .35 S.C.R. 550 120 
 
 Springfield v. St. Boniface 10 M.R. 615 1158 
 
 Squires, Smith v 13 M.R. 360 395 
 
 St. Andrews, Re 7 C.L.T. Occ. N. 277 367 
 
 4 M.R. 514 367 
 
 — AUoway v 15 M.R. 188 1011 
 
 — V 16 M.R. 255 . 1076 
 
 Clemons «) 11 M.R. Ill 1085 
 
 — — — V 11 M.R. 245 246 
 
 - Election, Re 4 M.R. 514 367 
 
 St. Boniface Election, Re 8 M.R. 446 366 
 
 - ; 8 M.R. 474 371 
 
 - 13 M.R. 75 370 
 
 — V. KeUy 2 M.R. 219 505 
 
 - Re Knudsen and 15 M.R. 317 760 
 
 - Pohquin v 17 M.R. 693 1203 
 
 - Springfield v 10 M.R. 615 1158 
 
 St. Germain v. Charette 13 M.R. 63 1102 
 
 St. Jean Baptiste, Pearson 'v 2 M.R. 161 854. 
 
 St. John's Cathedral v. Macarthur 9 M.R. 391 699 
 
 St. Vital V. Mager 19 M.R. 293 530 
 
 Stacey, Gait v 5 M.R. 120 412 
 
 Stanbro, Re 1 M.R. 263 432 
 
 1 M.R. 325 432 
 
 2 M.R. 1 391 
 
 Standard Mutual Fire Ins. Co., Lewis v. 44 S.C.R. 40 448 
 
 — Prairie 
 
 City Oil Co.. v 19 M.R. 720 447 
 
 Stanger and Mondor, Re 20 M.R. 280 1040 
 
 Stanley, Hoffstrom v 14 M.R. 227 690 
 
 Stark, Rex v 21 M.R. 345 284 
 
 V. Schuster 14 M.R. 672 188 
 
 V. Stephenson 7 M.R. 381 1039 
 
 Starkey, Fuller v 8 M.R. 400 860 
 
 Reg. V 6 M.R. 588 127 
 
 — V 7 M.R. 43 642 
 
 V 7 M.R. 262 262 
 
 — V 7 M.R. 489 643 
 
 Starr, Hagel v 2 M.R. 92 838 
 
 Steele v. Pritchard 17 M.R. 226 703 
 
 V. Ramsay, Bratt Claimant 3 M.R. 305 39 
 
 Stephens, Case v 6 M.R. 552 620 
 
 Grey v 16 M.R. 189 112 
 
 Hyndman v '. 19 M.R. 187 601 
 
 V. McArthur 6 M.R. Ill 579 
 
 V. — — 6 M.R. 496 501 
 
 V. 19 S.C.R. 446 501 
 
TABLE OF CASES DIGESTED. kxxvii 
 
 Column 
 Volume. of Digest. 
 
 Stephens v. Rogers 6 M.R. 298 575 
 
 Stephenson, Canada Furniture Co. « 19 M.R.. 618 940 
 
 — Stark V 7 M.R. 381 1039 
 
 Stevens, Manitoba Mortgage Co. f, 4 M.R. 410 602 
 
 Stevenson v. Blanchard 2 M.R. 78 739 
 
 — — Jack V ■ 19 M.R. 717 29 
 
 Stewart, Bucknam v 11 M.R. 491 1013 
 
 V 11 M.R. 625 1023 
 
 Caisley v 21 M.R. 341 1131 
 
 V. Hall 17 M.R. 653 1122 
 
 Hudson's Bay Co. t; 6 M.R. 8 821 
 
 V. Jackson 3 M.R. 568 1140 
 
 McDonald Case, Re Ideal Fur- 
 nishing Co 17 M.R. 576 1249 
 
 ■ Rex y 6 M.R. 257 666 
 
 V. Richard 3 M.R. 610 871 
 
 — Simpson v 10 M.R. 176 397 
 
 • Templeton v 9 M.R. 487 1165 
 
 V. Teskee 20 M.R. 167 588 
 
 — V. Turpin . . 1 M.R. 323 567 
 
 V. Winnipeg 19 M.R. 553 111 
 
 Stiffler, Foster v 19 M.R. 533 1192 
 
 Stikeman v. Fummerton 21 M.R. 754 612 
 
 Stobart v. Axford 9 M.R. 18 515 
 
 V. Bradford 11 C.L.T. Occ. N. 207 'll79 
 
 ■ Calloway v 14 M.R. 650 926 
 
 • V 35 S.C.R. 301 926 
 
 ■ V. Forbes . . . .' 13 M.R. 184 155 
 
 Stock, Watson Man. Co. w 6 M.R. 146 708 
 
 Stovel Co., Man. Fanners' Hedge & Wire 
 
 ' Fence Co. z; 14 M.R. 55 623 
 
 Stover V. Marchand 10 M.R. 322 1024 
 
 Strange, Smith v 2 M.R. 101 842 
 
 Strathclair y. C. N. R '. . . . 21 M.R. 555 970 
 
 Street v. C.P.H 18 M.R. 334 777 
 
 Streimer v. Merchants Bank 9 M.R. 546 536 
 
 V. Nagel 19 M.R. 714 211 
 
 Strome &• Whyte Co., Victoria Montreal 
 
 Fire Ins. Co. w 15 M.R. 645 511 
 
 Stuart, Barry v 18 M.R. 614 256 
 
 Davidson v 14 M.R. 74 661 
 
 V 34 S.C.R. 215 661 
 
 — Wilson V 20 M.R. 507 587 
 
 Sturgeon, Re 20 M.R. 284 558 
 
 Suburban Rapid Transit Co., Bannatyne I). 15 M.R. 7 1173 
 
 Suck Sin, Rex v 20 M.R. 720 665 
 
 Sumner (W. Dobbin 16 M.R. 151 109 
 
Ixxxviii TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Sumner, Lee v 2 M.R. 191 505 
 
 Sun Life Assurance Co. v. Taylor 9 M.R. 89 456 
 
 Supreme Lodge, A.O.U.W., Grand Lodge 
 
 A.O.U.W. j; 17 M.R; 360 471 
 
 Sutherland t). C. N. R 21 M.R. 27 1002 
 
 Dundee Mortgage & Inv. Co. v. 1 M.R. 308 873 
 
 Fraser v 15 C.L.T. Occ. N. 17 321 
 
 V. Mannix 8 M.R. 541 169 
 
 V. McKinnon 3 M.R. 608 1099 
 
 North American Life Ass. Co. v. 3 M.R. 147 570 
 
 Ontario Bank v.'. 3 M.R. 261 889 
 
 • — Phillips V 22 M.R. 491 555 
 
 and Portigal, Re 12 M.R. 543 613 
 
 Robinson v 9 M.R. 199 526 
 
 V. Schultz 1 M.R. 13 376 
 
 V. Young 1 M.R. 38 1166 
 
 V. — 1 M.R. 94 259 
 
 Sutton V. Hinch 19 M.R, 705 280 
 
 Miller V 20 M.R. 269 1190 
 
 Svenson, Bateman v 18 M.R. 493 412 
 
 — — V. .... 42 S.C.R. 146 46, 412 
 
 Sveinsson v. Jenkins 21 M.R. 746 1209 
 
 Swain, O'Donohue v 4 M.R. 476 86 
 
 Swan River Local Option By-Law, Re. 16 M.R. 312 652 
 
 Swanson, Aldous v 20 M.R. 101 918 
 
 Sweet, Fraser v , .' , 13 M.R. 147 826 
 
 Sword V. Tedder 13 M.R. 572 226 
 
 Sylvester v. Porter.. 11 M.'R. ' 98 212 
 
 Tait, Re 9 M.R. 617 336 
 
 i;. Burns 8 M.R. id 244 
 
 !). C. P. R 16 M.R. 391 990 
 
 V. Calloway 1 M.R. 102 " 886 
 
 ■ V. : 2 M.R. 289 1129 
 
 V. — 2 M.R. 312 1128 
 
 Wolf V 4 M.R. 59 923 
 
 Tate, Cameron v 9 C.L.T. Occ. N. 19 927 
 
 V 15 S.C.R. 622 . 927 
 
 Taylor, Crotty v 8 M.R. 188 723 
 
 V. Gardiner 8 M.R. 310 913 
 
 Imperial Bank v 1 M.R. 244 417 
 
 Robinson v 10 M.R. 33 34 
 
 ■ V. Sharp 2 M.R. 35 732 
 
 V. 3 M.R. 4 882 
 
 V. — — 8 M.R. 163 728 
 
 ■ Sun Life Ass. Co. w 9 M.R. 89 456 
 
 and Winnipeg, Re 11 M.R. 420 763 
 
 . 12 M.R. 18 764 
 
TABLE OF CASES DIGESTED. Ixxxix . 
 
 Column 
 
 Volume. of Digest. 
 
 Taylor v. Winnipeg 12 M.R. 479 756 
 
 Teague v. Scoular 17 M.R. 593 102, 275 
 
 Tedder, §word v 13 M.R. 572 226 
 
 Tees V. Spence 3 M.R. 430 852 
 
 Woods V 5 M.R. 256 846 
 
 Telegram Printing Co., Brown v 21 M.R. 775 854 
 
 Tellier v. Dujardin 16 M.R. 423 522 
 
 V. Schilemans 16 M.R. 430 12 
 
 V. . 17 M.R. 262 1243 
 
 V. 17 M.R. 303 13 
 
 Templeton v. Stewart 9 M.R. 487 1165 
 
 V. Waddington 14 M.R. 495 796 
 
 Tentler, Re Graves and 21 M.R, 417 51 
 
 Tetrault v. Vaughan 12 M.R. 457 1078 
 
 Teskee, Stewart v 20 M.R. 167 588 
 
 Tett V. Bailey Supply Co 19 M.R 250 275 
 
 Theo Noel Co. v. Vitae Ore Co 17 M.R. 87 , 410 
 
 V. 17 M.R. 319 840 
 
 V. 18 M.R. 46 896 
 
 Thibeaudeau, Re T.W. 149 1115 
 
 Leggo V 7 M.R. 38 882 
 
 Thiesen, Smith v ... 20 M.R. 120 823 
 
 Thomas, Cook v 6 M.R. 286 1225 
 
 Thompson v. Didion 10 M.R. 246 489 
 
 V. 10 M.R. 301 1127 
 
 North of Scotland Canadian 
 
 Mortgage Co. « 13 M.R. 95 1007 . 
 
 — Rex V '. . . 17 M.R-. 608 296 
 
 V. Seguin 8 M.R. 79 403 
 
 Toussaint v 3 M.R. 504 546 
 
 V 4 M.R. 499 546 
 
 V : 5 M.R. 53 260 
 
 V. Wallace 3 M.R. 686 509 
 
 Thomson v. Wishart 19 M.R. 340 1119 
 
 Thordarson v. Akin .. 21 M.R. 157 1155 
 
 V. Heale 17 M.R. 295 924 
 
 V. Jones 17 M.R. 295 924 
 
 V. 18 M.R. 223 57 
 
 Thorn v. James 14 M.R. 373 778 
 
 Timmons v. National Life Ass. Co 18 M.R. 465 878 
 
 ■ V. ■■.... 19 M.R. 139 865 
 
 V. .19 M.R. 227 878 
 
 Tizzard, Union Bank v 9 M.R. 149 581 
 
 Todd, Rex v 13 M.R. 364 287 
 
 V. Union Bank 1 M.R. 119 852 
 
 V. Union Bank of Canada 4 M.R. 204 77 
 
 V. 6 M.R. 457 1136 
 
 Tomlinson, Re 21 M.R. 786 556 
 
xc TABLE OP CASES DIGESTED. 
 
 J Column 
 
 Volume. of Digest. 
 
 Toronto Carpet Man. Co. v. Ideal House 
 
 Furnishers 20 M.R. 571 402 
 
 General Trusts Corp. v. Dunn. 20 M.R. 412 69 
 
 Winnipeg v. 19 M.R. 420 844 
 
 V. 20 M.R. 545 769 
 
 Land Co. v. Scott 1 M.R. 105 946 
 
 — ^ Man.& N.W.Land Co.,Gordon v. 2 M.R. 318 240 
 
 Torrance, Bain v 1 M.R. 32 75 
 
 McRobbie v 5 M.R. 114 99 
 
 Tourond, American Abell Co. f 19 M.R. 660 233 
 
 Toussaint v. Thompson 3 M.R. 504 546 
 
 ■ V. 4 M.R. 499 546 
 
 — V. — . . ; 5 M.R. 53 260 
 
 Town Topics Co., Limited, Re 20 M.R. 574 157 
 
 Townsend, Fischel v.: 1 M.R. 99 6* 
 
 Toy Moon, Rex « 21 M.R. 527 309 
 
 Traders' Bank v. Wright 8 W.L.R. 208 838 
 
 V. — • 17 M.R. 614 484 
 
 ^ V. 17 M.R. 695 251 
 
 Trottier v. Red River Transportation Co. T.W. 255 125 
 
 Trust & Loan Co. v. Wright 11 M.R. 314 1054 
 
 Trustees of Congregational Church, Cum- 
 mins V...: : . . . 4 M.R. 374 146 
 
 Tucker v. Young T.W. 186 503 
 
 Tudhope, Bank of Montreal v 21 M.R. 380 77 
 
 Turner v. Francis 10 M.R. 340 628 
 
 V. 25 S.C.R. 110 628 
 
 Ryan V 14 M.R. 624 613 
 
 • V. Snider 16 M.R. 79 793 
 
 — u. Tymchorak 17 M.R. 687 578 
 
 Turpin, Stewart v 1 M.R. 323 567 
 
 Turriff v. McDonald 13 M.R. 577 1123 
 
 Turtle Mountain, Noble v 15 M.R. 514 754 
 
 Tuttle V. Quesnel 19 M.R. 20 969 
 
 V. 19 M.R. 23 969 
 
 Tymchorak, Rosenberg v ... 18 M.R. 319 253 
 
 Turner v 17 M.R. 687 578 
 
 Tyndall Quarry Co., Armstrong v 20 M.R. 254 681 
 
 Unger v. Long 12 M.R. 454 866 
 
 Union Bank v. Buhner 2 M.R. 380 821 
 
 — V. 7 C.L.T. Occ. N. 277 820 
 
 V. Dominion Bank . . . , 17 M.R. 68 95 
 
 • V. 40 S.C.R. 366 95 
 
 V. Douglass 2 M.R. 309 487 
 
 V. 3 M.R. 48 243 
 
 V. EUiott 14 M.R. 187 36 
 
TABLE OF CASES DIGESTED. . xci 
 
 Column 
 
 Volume. of Digest . 
 
 Union Bank v. Morriset 7 M.R. 470 258 
 
 V. McBean 10 M.R. 211 844 
 
 ■ McDonald v 1 M.R. 335 886 
 
 Mclntyre v. 2 M.R. 305 129 
 
 V. McKilligan 4 M.R. 29 100 
 
 — Smitt V 11 M.R. 182 812 
 
 V. Tizzard 9 M.R. 149 581 
 
 — Todd V 1 M.R. 119 852 
 
 V 4 M.R. 204 77 
 
 V 6 M.R. 457 1136 
 
 Investment Co. v. Wells 39 S.C.R. 625 ,92 
 
 .41 S.C.R. 244 1139 
 
 Unsworth v. Wright 14 M.R. 636 761 
 
 Valentinuzzi v. Lenarduzzi 16 M.R. 121 1124 
 
 Valle, Northwest Construction Co. v 16 M.R. 20r I90 
 
 Van Buren, Smith v 17 M.R. 49 518 
 
 Van Dusen-Harrington Co, v. Morton . . 15 M.R. 222 934 
 
 Van Etten, Ross v 7 M.R. 598 416 
 
 Van Whort v. Smith 4 M.R. 421 140 
 
 Vanderberg, Reg. v 8 M.R. 491 285 
 
 Vanderlip v. McKay . 3 W.L.R. 232 410 
 
 V. Peterson 16 M.R. 341 , I94 
 
 Vanderwoort v. Hall 18 M.R. 682 1207 
 
 Vanhorenback, McKenty t- 21 M.R. 360 91 
 
 Vassar v. Spicer 21 M.R. 777 929 
 
 Vaughan v. Building & Loan Ass 6 M.R. 289 607 
 
 Tetrault v 12 M.R. 457 1078 
 
 Veitch V. McLennan 3 M.R. 383 850 
 
 Velie V. Rutherford 8 M.R. 168 675 
 
 Victoria Montreal Fire Ins. Co. v. Strome 15 M.R. 645 511 
 
 Vigier, Manitoba Windmill Co. v. .. ... 18 M.R. 427 265 
 
 Villeneuve, Nanton v. .. 10 M.R. 213 1078 
 
 Vineberg, Alois Schweiger Co. «) 15 M.R. 536 845 
 
 V. Anderson 6 M.R. 335 1063 
 
 ScWeiger v 19 M.R. 328 1059 
 
 Vinegratsky, Gunn v < 20 M.R. 311 497 
 
 Virden, Re Miller and Town of 16 M.R. 479 749 
 
 Vitae Ore Co., Theo Noel Co. «» 17 M.R. 87 410 
 
 — V 17 M.R. 319 840 
 
 V 18 M.R. 46 896 
 
 Vivian, Re 14 M.R. 153 746 
 
 Armitage v 2 M.R. 360 7 
 
 V. Plaxton 2 M.R. 124 1097 
 
 V. Scoble 1 M.R. 125 226, 593 
 
 — V. 1 M.R. 192 934 
 
 V. Wolf 2 M.R. -122 261 
 
xcii TABLE OF CASES DIGESTED. 
 
 Column 
 
 / Volume. of Digest. 
 
 Von Ferber v. Enright 19 M.R. 383 946 
 
 Vopni V. Bell 17 M.R. 417 542 
 
 Vosper V. Aubert 18 M.R. 17 1215 
 
 Vrooman, Grotty v 1 M.R. 149 318 
 
 -Reg.?; 3 M:R. 509 127 
 
 Vulcan Iron Works Co. v. Rapid City 
 
 Farmers' Elevator Co 9 M.R. 577 455 
 
 V. Winnipeg Lodge, No. 122. . 16 M.R. 207 848 
 
 V. ' . . 18 M.R. 137 949 
 
 V. Winnipeg Lodge, No. 174. . 21 M.R. 473 1170 
 
 Waddell v. Dominion City Brick Co 5 M.R. 119 154 
 
 Waddington, Templeton v 14 M.R. 495 796 
 
 Wald V. Winnipeg Elec. Ry. Co 18 M.R. 134 792 
 
 V. 41 S.C.R. 431 792 
 
 Walker, AUis v 21 M.R. 770 1227 
 
 ■ V. Cameron 2 M.R. 95 897 
 
 N.W. Navigation Co. w 3 M.R. 25 774 
 
 — V 4 M.R. 406 775 
 
 „ 5 M.E,. 37 774 
 
 V. Robinson 15 M.R. 445 902 
 
 ^ — Wellband v 20 M.R. 510 144 
 
 Wallace v. Fleming 20 M.R. 705 741 
 
 — V. Scott 16 M.R. 594 131 
 
 • — Thompson v 3 M.R. 686 509 
 
 Wallbridge v. Hall , 4 M.R. 341 1111 
 
 V. Yeomans 4 M.R. 341 1111 
 
 Wallis V, Assiniboia 4 M.R. 89 756 
 
 Wallman u. C. P. R 16 M.R. 82 " 787 
 
 Walls, Rutherford v 8 M.R. 96 956 
 
 Walsh V. North West Elec. Co 11 M.R. 629 • 157 
 
 V. 29 S.C.R. 33 158 
 
 Walton, Burnham v 2 M.R. 180 577 
 
 V 3 M.R. 204 582 
 
 Estate; Re 20 M.R. 686 1235 
 
 ■ Morwick v : 18 M.R. 245 703 
 
 Ward V. Braun 7 M.R. 229 253 
 
 Re O'Connor and T.W. 284 645 
 
 «. Short 1 M.R. 328 840 
 
 Warener, Massey Harris Co. v. 17 C.L.T. Occ. N. 409 426 
 
 — V 12 M.R. 48 388,426 
 
 Warne v. Housley 3 M.R 547 424 
 
 Wark V. Curtis 10 M.R. 201 817 
 
 Pratt V 2 M.R. 213 847 
 
 Warren, South Norfolk v 8 M.R. 481 957 
 
 Washburn & Moen Man. Co. v. Brooks 2 M.R. 44 400 
 
 Wasyl Kapij, Rex v 15 M.R. 110 293 
 
 Waterloo Man. Co.,. Clark v 20 M.R. 289 1062 
 
TABLE OF CASES DIGESTED. xciii 
 
 Column 
 Volume. of Digest. 
 
 Waterloo Man. Co. v. Kirk 21 M.R. 457 ■ 143 
 
 Waterous Engine Works Co., Carruthers v. 4 M.R. 402 1099 
 
 ~ '— V. Henry.... 1 M.R. 36 1045 
 
 ■ V. . . 2 M.R. 169 457 
 
 V. Jones ... 7 M.R. 73 1132 
 
 V. McLean . 2 M.Ri 279 84 
 
 V. Orris .... 6 M.R. 177 1132 
 
 ~ V. Wilson . . 11 M.R. 287 225 
 
 Waters v. Bellamy .' 5 M.R. ?46 107 
 
 Watkins, Manitoba Investment Ass. v. . 4 M.R. 357 532 
 
 Watson V. Dandy 12 M.R. 175 1033 
 
 — V. Harvey 10 M.R. 641 94 
 
 V. Lillico 6 M.R. 59 957 
 
 V. Manitoba Free Press Co 18 M.R. 309 228 
 
 • V. Moggey 15 M.R. 241 619 
 
 • V. Whelan 1 M.R. 300 800 
 
 ■ Man. Co. v. Bowser 21 M.R. 21 822 
 
 — V. . 18 M.R. 425 883 
 
 V. Sample 12 M.R. 373 634 
 
 — V. Stock 6 M.R. 146 708 
 
 Watt V. Drysdale 17 M.R. 15 28 
 
 V. Popple 16 M.R. 348 881 
 
 Watts V. Anderson 5 M.R. 291 , 400 
 
 Way V. Massey Man. Co 4 M.R. 38 480 
 
 Webb, Burbank v ... 5 M.R. 264 568 
 
 V. Rodney 19 M.R. 120 583 
 
 Webster, Dunsford v .... 14 M.R. 529 617 
 
 Snider v 20 M.R. 562 , 1214 
 
 • V 45 S.C.R. 296 1214 
 
 Weidman v. Pelakeise ... 2 W.L.R. 308 1204 
 
 : Shragge v 20 M.R. 178 ' 177 
 
 ' V 46' S.C.R. 1 177 
 
 Welch, Imperial Elevator Co. w 16 M.R. 136 853 
 
 Wellband, Conley v 3 M.R. 207 816 
 
 ~ V. Walker 20 M.R. 510 144 
 
 Wells V. Knott 20 M.R. 146 1142 
 
 ■ V. McCarthy 10 M.R. 639 94 
 
 Union Investment Co. v. ... 39 S.C.R. 625 92 
 
 ■ V 41 S.C.R. 244 1139 
 
 Wermiger, Case Threshing Machine Co. v. 17 M.R. 52 387 
 
 Wesbrook v. Willoughby 10 M.R. 690 170 
 
 West V. Lynch 5 M.R. l67 1192 
 
 Brandon Election, Re 7 C.L.T. Occ. N. 301 370 
 
 ■ Cumberland Iron Co. v. Winnipeg 
 
 & H. B. Ry. Co 6 M.R. 388 ' 856 
 
 —_ — -_ — V. J 7 M.R. 504 875 
 
 — — Winnipeg Development Co. and 
 
 Smith 20 M.R. 274 246 
 
xdv TABLE OF CASES DIGESTED. 
 
 Column 
 
 Volume. of Digest. 
 
 Westbourne Cattle Co. v. Manitoba & 
 
 N.W. Ry. Co 6 M.R. 553 985 
 
 — Gillespie v 10 M.R. 656 768 
 
 Miller v. 13 M.R. 197 880 
 
 Western Ass. Co., Banting v 21 M.R. 142 991 
 
 Canada Flour Mills Co. v. C.P.R. 20 M.R. 422 892 
 
 Loan Co. v. Snow .... 6 M.R. 317 484 
 
 V. .... 6 M.R. 606 478 
 
 Co-operative Construction Co. 
 
 and Brodsky, Re 15 M.R. 681 1147 
 
 Elec. Light Co. v. McKenzie. . . 2 M.R. 51 1093 
 
 Wheatlands, Re Donore and 1 M.R. 356 1089 
 
 Whelan, Ryan v 6 M.R. 566 1076 
 
 V 20 S.C.R. 65 1076 
 
 Watson V 1 M.R. 300 800 
 
 Whellams, Hockin v 6 M.R. 521 423 
 
 Whillier, Shillinglaw- v 19 M.R. 149 257 
 
 White «. C. N. R 20 M.R. 57 779 
 
 «;. C. P. R 6 M.R. 169 977 
 
 Daly V 5 M.R. 55 1096 
 
 Inter-Ocean Real Estate Co. v. .. 20 M.R. 67 1127 
 
 V. Louise 7 M.R. 231 760 
 
 Mulligan v 5 M.R. 40 400 
 
 Whiteford, Reid v 1 M.R. 19 379 
 
 Whitewater, Re Mun. of 14 M.R. 153 746 
 
 Whitham v. Cooper 2 M.R. 11 490 
 
 Whitla V. Agnew 11 M.R. 66 896 
 
 V. Manitoba Ass. Co 14 M.R. 90 450 
 
 V. ■ — 34 S.C.R. 191 450 
 
 V. McCuaig - 7 M.R. 454 468 
 
 V. Phair 12 M.R. 122 211 
 
 V. Riverview Realty Co 19 M.R. 746 1188 
 
 V. Royal Ins. Co 14 M.R. 90 450 
 
 V. '■ 34 S.C.R. 191 450 
 
 V. Spence 5 M.R. 392 885 
 
 Whitman Fish Co. v. Winnipeg Fish Co. 17 M.R. 620 1060 
 
 V. 41 S.C.R. 453 1060 
 
 Wicher «;. C. P. R 16 M.R. 343 982 
 
 Wicks V. Miller 21 M.R. 534 394 
 
 Wickson v. Pearson 3 M.R. 457 1193 
 
 Wiebe, Black v 4 W.L.R. 218 1140 
 
 V 15 M.R. 260 691 
 
 Wiens, Harvey v 16 M.R. 230 195 
 
 Wilkes V. MaxweU 14 M.R. 599 921 
 
 WUley V. WiUey .'. 18 M.R. 298 18 
 
 Williams, Barlow v 16 M.R. 164 1210 
 
 V. Box 19 M.R. 560 717 
 
 v.- 44 S.C.R. 1 717 
 
TABLE OF CASES DIGESTED. xoy 
 
 Column 
 Volume. of Digest. 
 
 Williams v. Hammond 16 M.R. 369 - 683 
 
 McMillan v 9 M.R. 627 592 
 
 Reg. V 8 M.R. 342 646 
 
 Willoughby, Wesbrook v 10 M.R. 690 170 
 
 Wilson, Blakeston v 14 M.R. 271 54 
 
 — Boyle V 9 M.R. 180 833 
 
 — V. District Registrar, Winnipeg . 9 M.R. 215 1019 
 
 Elliott V ' 6 M.R. 63 -874 
 
 D.Graham 16 M.R. 101 1023 
 
 — McManus v. 17 M.R. 567 1106 
 
 — Plmnmer Waggon Co. w 3 M.R. 68 621 
 
 Scarry v 12 M.R. 216 1178 
 
 V. Smith 9 M.R. 318 63 
 
 t). Stuart 20 M.R. 507 587 
 
 Waterous Engine Works Co. v.. 11 M.R. 287 225 
 
 V. Winnipeg 4 M.R. 193 667 
 
 Wilton, Bank of Ottawa v 10 W.L.R. 331 1058 
 
 w. Murray.. . . 12 M.R. 35 1230 
 
 • y. Wilton 4 M.R. 227 245 
 
 Winkler, Dick v 12 M.R. 624 608 
 
 Penner v.. 15 M.R. 428 351 
 
 Schwartz v... . 13 M.R. 493 493 
 
 V 14 M.R. 197 259 
 
 Winnipeg (City of), Barrett v 7 M.R. 273 185 
 
 V 19 S.C.R. 374 185 
 
 V [1892] A.C. 445 185 
 
 Bennetto v 18 M.R. 100 55 
 
 V. Brock 20 M.R. 669 747 
 
 45 S.C.R. 271- 747 
 
 Buchanan v. .. 19 M.R. 553 111 
 
 V 21 M.R. 101 251 
 
 V. ... 21 M.R. 714 252 
 
 Re Byerley and. . . . 20 M.R. 438 429 
 
 «;. C. P. R 2 M.R. 163 966 
 
 V. 12 M.R. 581 771 
 
 V. 30 S.C.R. 558 , 771 
 
 r- V. Cauchon T.W. 350 429 
 
 Clarke v T.W. 56 207, 850 
 
 Dairy By-law, Re . . 12 M.R. 18 764 
 
 Davies v 19 M.R. 744 784 
 
 Decarie Man. Co. v. . 18 M.R. 663 867 
 
 Devitt V 16 M.R. 398 769 
 
 Eastern Judicial 
 
 District Board v... 3 M.R. 537 590 
 
 V... 4 M.R. 323 591 
 
 ElUott, Re and ... . 11 M.R. 358 762 
 
 ■ Forrest v 18 M.R. 440 784 
 
xovi TABLE OP CASES DIGESTED. 
 
 Column 
 Volume. of Digest. 
 
 Winnipeg (City of) Garbutt v 18 M.R. 345 783 
 
 — V. Guiler 3 M.R. 23 246 
 
 — — — Higley v 20 M.R. 22 798 
 
 — V. Ideal House Fur- 
 nishers 18 M.R. 650 1157 ' 
 
 Iveson V 16 M.R. 352 757 
 
 . . Kelly V : . 12 M.R. 87 767 
 
 ■- . — V 18 M.R. 269 223 
 
 . Kilpatrick v 4 M.R. 103 750 
 
 Logan V 8 M.R. 3 186 
 
 . V [1892] A.C. 445 186 
 
 ' — Lunn V 2 M.R. 225 808 
 
 Manitoba Elec. Light 
 
 Co. w 2 M.R. 177 279 
 
 Manning v 21 M.R. 203 240 
 
 Mitchell V 17 M.R. 166 751 
 
 McLennan v. . . . 3 M.R. 82 250 
 
 V 3 M.R. 474 688 
 
 Ponton V 17 M.R. 496 745 
 
 — : v 41 S.C.R. 18 745 
 
 — Robertson v 6 M.R. 483 852 
 
 Schultz V 6 M.R. 35 . 179 
 
 V. ..... 6 M.R. ,269 1137 
 
 . Scott V 11 M.R. 84 430 
 
 — ■ Shaw V 19 M.R. 234 783 
 
 V 19 M.R. 551 409 
 
 Re Shragge and ... 20 M.R. 1 1001 
 
 Shrimpton v 13 M.R. 211 770 
 
 Stewart v. ..■ 19 M.R. 553 111 
 
 Re Taylor and 11 M.R. 420 763 
 
 Taylor Re 12 M.R. 18 764 
 
 V 12 M.R. 479 756 
 
 V. Toronto Gen. 
 
 Trusts Cor 19 M.R. 420 844 
 
 V. 20 M.R. 545 ' 769 
 
 ■ Wilson V 4 M.R. 193 667 
 
 V. Winnipeg Elec. 
 
 Ry. Co 19 M.R. 279 841 
 
 V. 20 M.R. 337 164 
 
 V. [1912] A.C. 355 164 
 
 Wright V 3 M.R. 349 53, 328, 334 
 
 380, 849 
 
 — V 4 M.R. 46 53, 326, 328 
 
 Wood V 21 M.R. 426 748 
 
 Elec. St. Ry. Co., Bell v 15 M.R. 338 792 
 
 V 37 S.C.R. 515 792 
 
 Black v.... 17 M.R. 77 743 
 
 — — Cameron v. 17 M.R. 475 602 
 
" .^ TABLE OF CASES DIGESTED. ^ xcvii 
 
 Column 
 Volume. of Digest. 
 
 Winnipeg Elec. St. Ry. Co., Dixon v. .. 10 M.R. 660 407 
 
 — V. . . 11 M.R. 528 1259 
 
 Griffiths V. . 16 M.R. 512 604 
 
 — — Hill V 21 M.R. 442 790 
 
 V. .... 46 S.C.R. 654 790 
 
 . Hinman v... 16 M.R. 16 789 
 
 Lines v 11 M.R. 77 789 
 
 — Marion, v. . 21 M.R. 757 602 
 
 — Seymour v.. 19 M.R. 208 605 
 
 . ■■ v.. 19 M.R. 412 790 
 
 Shondra v. . 21 M.U. 622 776 
 
 Wald V. ... 18 M.R. 134 792 
 
 : V 41 S.C.R. 431 792 
 
 < ■ Winnipeg St. 
 
 Ry. Co. V. . 9 M.R. 219 1144 
 
 -, V. . [1894] A.C. 615 1144 
 
 — : Winnipeg v. 19 M.R. 279 841 
 
 , — V. 20 M.R. 337 164 
 
 ■ V. [1912] A.C. 355 164 
 
 -. -. WooUacott V. 10 JM.R. 482 604 
 
 — :^ish Co. V. Whitman Fish Co. 17 M.R. 620 1060 
 
 £ V. 41 S.C.R. 453 1060 
 
 Granite &MarbleCo.t;.Bennetto 21 M.R. 743 411 
 
 & Hudson's Bay Ry.Co.,Jukes v. 5 M.R. 14 . 415' 
 
 V. Mann 6 M.R. 409 568 
 
 : — i V. 7 M.R. 81 998 
 
 — : V. 1 M.R. 457 415 
 
 West Cumberland Iron 
 
 Co. w 6 M.R. 388 856 
 
 V. 7 M.R. 504 875 
 
 ■- Jewellery Co., Long v.... 9 M.R. 159 418 
 
 ■-. V. Perrett 9 M.R. 141 592 
 
 Land Corporation v. Witcher 15 M.R. 423 614 
 
 Lodge No. 122, Vulcan Iron 
 
 Works V 16 M.R. 207 .848 
 
 V. 18 M.R. 137 949' 
 
 ' Lodge No. 174, v. 21 M.R. 473 1170 
 
 Man. Co., Arbuthnot v. 16 M.R. 401, 696 
 
 Oil Co. D. C. N. R 21 M.R. 274 990 
 
 Saturday Post v. Couzens 21 M.R. 562 567 
 
 School District of v. C. P. R. . 2 M.R. 163 966 
 
 Stone Co. v. Beaucage 14 W.L.R. 575 681' 
 
 St. Ry. Co. V. Winnipeg Elec. St. 
 
 Ry. Co 9 M.R. 219 1144 
 
 V. [1894] A,C. 615 1144 
 
 — Winnipeg Water 
 
 ^ Works V 6 M.R. 614 31 
 
xcviii TABLE OF CASES DIGESTED. 
 
 ^ Columa 
 Volume. of Digest. 
 
 Winnipeg Water Works v, Winnipeg St. 
 
 Ry. Co 6 M.R. 614 31 
 
 Winslow, Reg. v 12 M.R. 649 289 
 
 Winters «.- McKinstry 14 M.R. 294 ■ 730 
 
 Winthrop v. Roberts 17 M.R. 220 727 
 
 Wisch, Keewatin Lumber Co. v 8 M.R. 365 842 
 
 Wishard Langan Co., Hartt v 18 M.R. 376 1200 
 
 Wishart v. Bonneau 5 M.R. 132 12S : 
 
 -■ t;. Brandon..; 4 M.R. 453 749 
 
 V. McManus 1 M.R. 213 674 
 
 ^ Thomsons 19 M.R. 340 1119 
 
 Witcher, Winnipeg Land Corp. v 15 M.R. 423 614 
 
 Withers, McGregor v 15 M.R. 434 1036 
 
 Wolf, V. McArthur 18 M.R. 30 " 707 
 
 McPhiUips V 4 M.R. 300 581 
 
 - V. Tait 4 M.R. 59 923 
 
 Vivian v 2 ]\{t.R. 122 261 
 
 Wolff V. Black 1 M.R. 243 58^ 
 
 Wood, American Plumbing Co. w 3 M.R. 42 ^89 
 
 u. Arbuthnot Co. 16 M.R. 320 1105 
 
 BAnk B. N. A. ?; 19 M.R. 633 144 
 
 Biggs t; 2 M.R. 272 101 
 
 V. Birtle 4 M.R. 415 1066 
 
 u. C. P. R. ... - 20 M.R. 92 787 
 
 V. 47 S.C.R. 403 785 
 
 Carey v 2 M.R. 32 415 
 
 V 2 M.R. 290 1141 
 
 ; — ^ V. Guillett 10 M.R. 570 1098 
 
 Lewis V 2 M.R. 73 567 
 
 - V. Winnipeg 21 M.R. 426 748 
 
 - V. Wood 1 M;R. 317 19 
 
 V. 2 M.R. 87 863 
 
 V. 2 M.R. 198 . 557- 
 
 Woods, Adams D 1'9 M.R. 285 655 
 
 V. Matheson 8 M.R. 158 '^ 207 
 
 ■ Mclntyre v 5 M.R. 347 580 
 
 Royal City Planing Mills v 6 M.R. 62 40 
 
 ■ — V. Tees 5 M.R. 256 - ' 846 
 
 J). Woods 3 M.R. 33 " 823 
 
 Woodworth, Schneider v 1 M.R. 41 * -468 
 
 Woollacott !/. Winnipeg Elec. St. Ry. Co. 10 M.R. 482 604 
 
 Workman, McDonald Dure Lumber Co. v. 18 M.R. 419 686 
 
 Wrenn, Robertson v 10 M.R. 378 103 
 
 Wright V. Arnold 6 M.R. 1 268 
 
 • Attorney-General v 3 M.R. 197 559 
 
 Barrie v 15 M.R. 197 534 
 
 V. Battley 24 C.L.T. Occ. N. 278 816 
 
TABLE OF CASES DIGESTED. xcix 
 
 ' Column 
 Volume. of Digest. 
 
 Wright V. Battley 15 M.R. 322 1045 
 
 Davis V 21 M.R. 716 1220 
 
 V. Elliott 21 M.R. 337 895 
 
 Emerson v. .....: 5 M.R. 365 ^ 1027 
 
 V ,. . 14 M.R. 636 761 
 
 D.Jewell... 9 M.R. 607 ~ 1240 
 
 — Johnstoii V 18 M.R. 323 569 
 
 Traders' Bank v 8 W.L.R., 208 838 
 
 — V 17 MJl. 614 484 
 
 V 17 M.R. 695 251 
 
 Trust & Loaii Co. u 11 M.R. 314 1054 
 
 Unsworth v 14 M.R. 636 761 
 
 ■- — D. Winnipeg ' 3 M.R. 349 ^ 53,328,334 
 
 380, 849 
 
 V. 4 M.R. 46 53, 326, 328 
 
 Wyllie, McBean v 14 M.R. 135 " 807 
 
 Wyld f. Livingstone 9 M.R. 109 1152 
 
 Yasne v. Kronsen 17 M.H. 301 205 
 
 Yeo, Kerfoot v 19 M.R. 512 1093 
 
 V 20 M.R. 129 1216 
 
 Yeomans, Wallbridge v 4 M.R. 341 , 1111 
 
 York, Harris t; 8 M.R. 89 582 
 
 Young w. C. P.'R .'.. 1 M.R. 205 975 
 
 y. Hopkins 9 M.R. 310 898 
 
 Rexfw 14 M.R. 58 284 
 
 V. Short 3 M.R. 302 134 
 
 Sutherland v 1 M.R. 38 1166 
 
 V 1 M.R. 94 259 
 
 — Tucker v .• T.W. 186 503 
 
 Youville, Archibald v 10 C.L.T. Dec. N. 388 1082 
 
 V. ..:...■ 7 M.R. 473 1083 
 
 V. Bellemere 14 M.R. 511 966 
 
 Zastre, Dalziel t) 19 M.R. 353 28 
 
 Zickrick, Reg. v , ll.M.R. 452 958 
 
 Zimmerman, Carscaden v 9 M.R. 102 416 
 
 v: 9 M.R. 178 .^ 414 
 
Digest 
 
 OF 
 
 Manitoba Case Law. 
 
 1875-1911. 
 
 ABANDONMENT. 
 
 See 'Exemptions, 1. 
 
 ABANDONMENT OF CONTRACT. 
 
 See],VENBOR AND PUBCHASEH, II, 7. 
 
 ABANDONMENT OF ORDER. 
 
 See EiiECTiON Petition, V, 2. 
 
 ABANDONMENT OF PREMISES. 
 
 See Landlohd and Tenant, I, 8. 
 
 ABANDONMENT OF RIGHT 
 TO APPEAL. 
 
 ' SeeJAppBAL FROM County Cotjbt, I. 
 — i Appeal from Order, 1, 2, 3. 
 
 ABATEMENT OF NUISANCE. 
 
 See NtnsANCE, 3. 
 
 ABORTIVE SALE. 
 
 See Practice, XXVIII, 14. 
 
 ABSCONDING DEBTOR. 
 
 See Attachment op Goods, 1. 
 
 ABUSE OF iPOWERS. 
 
 See Municipality, V, 2. 
 
 ABUSE OF PROCESS OF COURT. 
 
 See Conyiction, I, 1. v 
 
 — JElection Petition, 1. ' * 
 
 PRACTipE, XX, A, 2. 
 
 ABUSIVE LANGUAGE. 
 
 See False Imprisonment, 1. 
 
 ACCELERATION OF TIME 
 FOR PAYMENT. 
 
 i Bills and Notes, V, 4. 
 Landlord and Tenant, I, 8. 
 Mortgagor and Mortgagee, I, 4. 
 Vendor and Purchaser, VII, 6. 
 
 ACCEPTANCE. 
 
 See Contract, VIII, 4; XII, 2. 
 
 — Gift, 2. 
 
 — ■ Mechanics' Lien, V, 2. - 
 
 — Municipality, II, 3. 
 
 — Sale of Goods, II, 1; IV, 1, 2, 4. 
 
 ACCEPTANCE OF BILL. 
 
 See Bills and Notes, I, 1,^2; VII, 1. 
 
ACCEPTANCE OF OFFER. 
 
 ACCEPTANCE OF OFFER. 
 
 See Contract, I, 1, 2; XV, 13. 
 
 ACCEPTANCE OF ORDER TO PAY. 
 
 See Assignment of Chose in Action. 
 
 ACCESSORY. 
 
 See Criminal Law, XVII, 17. 
 — Extradition, 5. 
 
 ACCIDENT INSURANCE. 
 
 1. Death by freezing — Accident policy 
 — Life insurance — Obvious or unnecessary 
 danger — Appeal, notice of, must state 
 ground relied on — Ai^endment. 
 
 The defendants entered into a contract 
 with the plaintiffs to pay $1000 within 90 
 days after sufficient proof that the assured, 
 one of their members, "shall have sus- 
 tained bodily injuries effected through 
 external, violent and accidental means, 
 and that such injuries .alone shall have 
 caused death within 90 days- from the 
 happening thereof;" and the policy con- 
 tained these further provisoes: "that the 
 insurance shall not extend to death or 
 disabiUty caused by an injury of which 
 there shall be no external and visible signs 
 * * * * nor to any case except 
 when some injury effected as aforesaid is 
 the proximate and sole cause of the disa- 
 bility or death; and no claim shall be 
 made under this policy when death or 
 disablement may have been caused in 
 consequence of exposure to any obvious 
 or unnecessary danger." 
 
 The assured was frozen to. death on the 
 
 Erairie near Fort Macleod, to which place 
 e was returning from one of his trips in 
 company with the driver. While still 
 about eight miles out the waggon broke 
 down. The weather had turned suddenly 
 very cold and stormy, and the assured, 
 being too cold and numb to walk and 
 unable to fide, it was agreed that he should 
 remain where he was while the driver 
 ■rode to Macleod for assistance, but he 
 died before the driver returned. The 
 assured was sufficiently warmly clothed 
 for the weather as it was when he set 
 
 out, but not for the storm which he 
 encountered. 
 
 Held, that he met: his death as the 
 result of an injury effected through ex- 
 ternal, violent and accidental means 
 within the meaning of the policy, and 
 that it could not oe said that he had 
 exposed himself to any obvious or un- 
 necessary danger; and that the plaintiffs 
 were entitled to recover. Sinclair v. - 
 Maritime Passenger Assurance Company, 
 7 Jur. N. S. 367, distinguished. 
 
 The praecipe to set down an appeal to 
 the Full Court should contain the grounds 
 of appeal intended to be relied on; and 
 an amendment to enable a party to set 
 up a technical and unmeritorious defence 
 mU be refused. N. W. Commercial 
 Travellers' Association v. London Guarantee 
 and Accident Co., 10 M. R. 537. 
 
 ' 2. Intoxication — Proviso against ~lia- 
 hiliiy if insured came to his death while 
 under the influence of intoxicating liquor — 
 Onus of Proof — Condition that notice of 
 death must be given within ten days there- 
 after — Tender before action, whether an. 
 admission of liability — Waiver — Impoasi- 
 biliiy of performance. ^ 
 
 When last seen ahve, in November, 
 1908, the jnsured was under- the influence 
 of intoxicating hquor, and the probabiUties 
 were that he met his death by drowning 
 on the same day, as nothing was seen or 
 heard of him until his body was foimd in 
 the river near-by in the following spring, 
 greatly decomposed; but without any 
 marks of violence. 
 
 The poUcy sued on contained a pro- 
 vision upon which the defendants reued, 
 namely, that if the insured met his death 
 while under the influence of intoxicating 
 liquor the claimant should only be entitled 
 to one tenth of the amount of the poUcy, 
 and the defendants made a tender of the 
 one tenth before action. 
 
 Held, that the burden of proof was upon 
 the defendants, and that, as there was no 
 evidence to show exactly wheiL^the death 
 took place, this defence failed. 
 
 Couadeau v. American Acddeni Co., 
 (1894) 25 S. W. Rep. 6, foUowed. - 
 
 The policy also contained a condition 
 that notice of the death should be given 
 by-or on behalf of the insured within ten 
 days thereafter. 
 
 Held, that a notice within ten days after 
 discovery of "the body was sufficient^ 
 (Cameron, J. A. dissenting.) 
 
 Baily v. De Crespigny, (1869) L.R. 4 
 Q.B., at p. 185; and Ttippe v. Provident 
 
ACCOMMODATION NOTE. 
 
 6 
 
 Fund Society, (1893) 140 N.Y. App. 23, 
 followed. 
 
 Cassel yi Lancashire &c. Ins. Co., (1885) 
 1 T.L.R. 495, distinguished. 
 
 Held, also per Pebutje and Cameron, 
 JJ.A., that the tender of th^ one tenth 
 made and pleaded by the defendants was 
 a waiver of the defence oJTwant of notice. 
 
 Haines v. Canadian tiailwdy Accident 
 Insurance Co., 20 M. R. 69. 
 
 Affirmed, 44 S. C. R. 386. 
 
 ACCOMMODATION NOTE. 
 
 See Pautnehship, 1. 
 
 ACCOMPLICE. 
 
 See Principal and Agent, V, 2. 
 
 ACCORD AND SATISFACTION. 
 
 1. By return of goods ptirchased — 
 
 Promise to buy back if purchaser's 
 xyircumstances should change. 
 
 The presmnption of an accord and 
 satisfaction arismg out of the return of an 
 article by the purchaser stating his ina- 
 bility to pay for it and the acceptance of 
 the article by the vendor and his keeping 
 it for nearly four years, and trying to sell 
 it without reference to the purchaser, will 
 not be displaced by evidence showing, in_ 
 effect, merely that the purchaser, at the 
 time of returning the article, had stated 
 or promised that if, in^the future, his 
 circumstances' should become such as to 
 warrant it, he would buy the article back 
 if still in the vendor's possession. Such 
 promise or statement should be regarded 
 as, at most, a voltmtary statement of 
 intention and not as a condition on which 
 the article was taken back. Boyce v. 
 Soames, 16 M. R. 109. 
 
 2. By second contract— Sinking out 
 ■jury notice — Second contract a satisfaction 
 for damages under the first. 
 
 Upon an application by the plaintiff to 
 strike out a jury notice. 
 
 Held, 1. inquiry will be made into the 
 facts to ascertain whether the case is one 
 which ought to be submitted to a jury. 
 
 2. If the defendant has no defence he 
 is not entitled to a jury. 
 
 3. Plaintiffs sold goods to defendant, to 
 be shipped upon a particular day. ' Tney 
 were not shipped until afterwaatds. The 
 defendant then wrote to the plaintiffs 
 refusing to accept the goods unless upon 
 ^tended terms of credit, to which the 
 plaintiffs aasented, and the defraidant then 
 accepted the goods. Held, that the 
 defendant had waived any right to dam- 
 ages under the first contract, the second 
 being a satisfaction of the breach, and 
 there being therefore no defence the jury , 
 notice should be struck out. Coristine v. 
 Menzies, 2 M. R. 84. 
 
 3. By subsequent agreement — Pro- 
 missory note — Evidence of presentment. 
 
 1. The defendant purchased from the 
 plaintiff a binder, giving notes in payment. 
 After the first note became due defendant 
 wrote to the plaintiff saying that he was 
 not able to pay for the machine, and 
 offering to pay for its use. He again 
 wrote to the plaintiff, instructing him to 
 sell the machine to the best possible ad- 
 vantage, to draw a note for the balance, 
 and to send this new note with the old 
 ones to C, at the town where defendant 
 resided. Plaintiff sold the binder, and 
 wi'ote to defendant, asking him to instruct 
 a solicitor, at the place where plaintiff's 
 agent (who had been acting in the matter) 
 was, to settle the matter. The defendant 
 did nothing further. 
 
 Held, In an action upon the original 
 notes, that a plea upon equitable grounds 
 setting up the subsequent agreement was 
 not proved. 
 
 2. A promissory note contained the 
 following, "Should I sell or dispose of my 
 real estate or personal property, this note 
 becomes due and payable forthwith." 
 The maker mortgaged his farm for $1,000 
 (its value did not appear), and went to 
 Ontario to hve, leaving instructions for 
 the sale of his horses. Besides the horses 
 and a crop which he had sold, he possessed 
 only a waggon, a plough and a set of 
 harrows. ' It did not appear whether he 
 had made any arrangements to continue 
 the cultivation of the farm. 
 
 Held, — That there had been a dispo- 
 sition of his property within the terms 
 of the Jiote. 
 
 3. A promise to pay a note, made after 
 it is due, is prima facie evidence of pre- 
 sentment. Deering v. Hayden. 3 M. R^ 
 219. 
 
 See Contract, IX, 1. 
 
 — Sale of Goods, VI, 3. 
 
ACCOUNT STATED, 
 
 ACCOUNT STATED. 
 
 Account stated of money due but 
 not payable. 
 
 A document which acknowledges a sum 
 to be due at its date, but not payable until 
 a future day, is evidence of an account 
 stated. Armitage v. Vivian; 2 M. R. 360. 
 
 ACTION. 
 
 See Bond. 
 
 ACTION AT ISSUE. 
 
 See Pleading, XI, 19. 
 
 ACCOtJNTING FOR PROCEEDS 
 OF SALES. 
 
 See Fbatjdtjlbnt Conveyance, 11. 
 
 ACCOUNTS IN THE 
 MASTER'S OFFICE. 
 
 Ses MOBTGAGOB AND MORTGAGEE, VI, 1. 
 
 ACKNOWLEJDGMENT. 
 
 See Banks and Banking, 3. 
 
 — Bills and Notes, X, 4. 
 
 — Limitation op Actions, 1, 2. 
 
 — ■ moetgagoe and mobtgagbb, iv, 1, 
 2,3. 
 
 ACTION BROUGHT WITHOUT 
 AUTHORITY. 
 
 See Mtjnicipalitt, VI, 2. 
 
 — Staying Pbqcbbdings, III, 1. 
 
 ACTION FOR ACCOUNT. 
 
 See Costs, XIJI, 1. 
 
 ACTION OF DECEIT. 
 
 See MiSREPKESENTATlON, I. 
 
 — Pleading, XI, 15. 
 
 ACKNOWLEDGMENT BY 
 MORTGAGOR. 
 
 See SoLiciTOE, 3. 
 
 V 
 
 ACTION OF TORT. 
 
 See Garnishment, II, 2. 
 — Practice, XVI, 11. 
 
 ACQUIESCENCE. 
 
 SeeJALiMONY. 
 
 ^JBanks and Banking, 4. 
 
 — ^Contract, XII, 2. 
 
 — ! Deed of Settlement. 
 
 -^>fDlJRESS, 1. 
 
 — JLandlord and Tenant, V, 2. 
 
 ■^^JMoRTGAGOB AND MoBTGAGBB, IV, 1. 
 
 — -{Mtinicipality, I, 6. 
 
 — '^Principal Xnd Agent, V, 8. 
 
 — ^JProhibition, I, 3, 6. 
 
 — ^Vendor and Purchaser, II, 6. 
 
 ACTUAL RESIDENCE. 
 
 See Exemptions, 2, 5. 
 
 ADDING OR SUBSTITUTING 
 PLAINTIFF. 
 
 See Practice, XVII, 1. 
 
 ACQUISITION OF TITLE 
 PENDING ACTION. 
 
 See Title to Land, 2. 
 
 ADJOINING OWNERS. 
 
 See Railways, VI, C, 3, 7, 8. 
 — Trees on Highway. 
 
ADJOURNMENT. 
 
 10 
 
 ADJOURNMENT. 
 
 See Statutes, Construction of, 1. 
 
 — County Court, IL 5. 
 
 — Criminal Law, XII, 3. 
 
 ADMINISTRATION. 
 
 1. Accounts in the Master's office — 
 
 Apportionnwni of losses between tenant for 
 life and remainder-men — Occupation rent — 
 Interest, how m/uch to he allowed the tenant 
 for life. 
 
 Upon reference to the Master to ascer- 
 tain the amount to which a widow was 
 entitled for income out of the trust estate 
 which had been devised to her for her 
 life, some of the investments having been 
 unproductive and reahsed at a loss. 
 
 Held, that under such circumstance the 
 principle adopted in In re Earl of Chester- 
 field's Trusts, 24 Ch. D. 643, does not 
 apply, but the true principle of appor- 
 tionment is that laid down in Cox v. Cox, 
 L. R. 8 Eq. 343, viz., that neither the 
 tenant for hfe nor the remainder-man is 
 «, to suffer more loss in proportion to his 
 estate and interest than the other suffers, 
 and in accordance with this rule a calcu- 
 lation should be made of what principal 
 invested at the date from which interest 
 was to run, at six per cent, per annum, 
 would amount with interest to the sum 
 actuaDy reahsed, and then the difference 
 between this principal and the amount 
 reahsed should go to the tenant for life, 
 and the rest to the remainder-men. The 
 tenant for hfe cannot be compensated for 
 the loss of income, unless there is a fund 
 out of which such compensation can be 
 given: Moore v. Johnson, 33 W. R. 447. 
 
 The interest realised on one of the 
 securities exceeded six per cent., but on 
 others it was less. 
 
 Held, that the Master was right in 
 refusing to allow the widow more than 
 six per cent, on all the secTpities; also that 
 the tenant for life may be entitled to or 
 allowed by way of income money which 
 never actually came into the hands of 
 the executors as profits or interest, when 
 the securities of the estate are realised 
 at a loss. 
 
 Held, also, that it was proper that the 
 Master should not charge thfe tenant for 
 hfe with occupation rent, although she 
 had Mved upon the lands of the estate for 
 a number of years, because, on the taking 
 of the accounts bejEore him, no such charge 
 
 was sought to be established by evidence, 
 and it appeared that, during a large portion 
 of the time of her residence on the land, 
 her second husband was the real occupant 
 and tenant. Miller v. Dahl, 10 M. R fl7. 
 
 2. Creditor preferred — Executor pre- 
 ferring creditor. 
 
 An executor or administrator is entitle 
 to prefer one creditor at the expense of 
 another. He may even confess judgment 
 to a creditor in equal degree with another 
 suing him pending the action and plead it 
 in bar, and that although done for the 
 express purpose of depriving the plaintiff 
 of his debt. 
 
 Con. Stat. c. 37, s. 96, as to preferential 
 assignments does not apply to executors 
 or administrators. 
 
 An assignment of all the asSets of an 
 estate for the benefit of some creditors 
 cannot be attacked by the others. Afo 
 Arthur v, Macdonnell, 3 M. R. 9. 
 
 3. Discretion of Court — Q. B. Act,, 
 1895, Rule 766 _ i ^ 
 
 Oh an application by a legatee for an 
 order under Rule 7B6 of the Queen's 
 Bench Act, 1895, for administration of a 
 testator's estate, the Court has a discretion 
 ,to grant or refuse the order although 
 more than a year has passed siiice the 
 death of the testator; and, when the 
 executors are doing their best to'reahze 
 the assets and are in no default, the 
 application should be refused. Re O'Con- 
 nor, O'Connor v. Fahey, 12 M. R. 325. 
 
 4. Lord Campbell's Act— Action for 
 damages against resident of Province for 
 death happening out of tKe jurisdiction — 
 Necessity for administration granted by 
 authorities of place where ai/use of action 
 arose — Amendrneni. 
 
 Action by plaintiff as administrator of 
 his deceased wife to recover damages" for 
 her being burnt to death in a fire which 
 occvured on a steamer owned and operated 
 by the defendant company while such 
 steamer was at Warren's Landing in the 
 North West Territories of Canada. 
 
 The statement of defence admitted the 
 truth of the allegation in the statement of 
 claim that the plaintiff was the adminis- 
 trator of the estate and effects of his 
 deceased wife, but such administration had 
 only been granted in and for the Province 
 of Manitoba, and the defendants apphed 
 for and obtained leave to amend their 
 defence by setting up that the plaintiff 
 V had not been appointed such administrator 
 
11 
 
 ADMINISTRATOR PENDENTE LITE. 
 
 IZ 
 
 by or under the authority of the North 
 West Territories of Canada wherein the 
 plaintiff's alleged cause of action had 
 arisen and that the plaintiff had no status 
 or right'to bring the action and the alleged 
 cause of action was not and never had 
 been vested in him. Coiiiufe v-. Dominion 
 Fish Company, 18 M. R. 468. 
 
 6. Priority of judgment — Irregvlar- 
 ities — Collateral proceeding— Priority of 
 
 In a suit to enforce payment of a decree, 
 that decree camnot be attacked ujaon any 
 ground of- irregularity not affecting the 
 jurisdiction of the court. 
 
 In the adoDUBistration of assets, a judg- 
 ment obtained against the deceased is 
 entitled to priority over simple contract 
 and specialty creditors. 
 
 And it is not essential to the judgment 
 that it should have been docketed. 
 
 An assignment, therefore', made by an 
 administrator of certain assets for the 
 " benefit of certain specialty and simple 
 contract creditors was set aside at the 
 instance of a judgment er^itor. Prontenac 
 Loan Co. v.'Morice, 3 M. R. 462. 
 
 See next case. 
 
 6. Priority of judgment — Assignment 
 for benefit of creditors set aside, but reference 
 to Master as to credits' liens. ■ 
 
 A decree in a mortgage suit contained 
 no order for payment of money but 
 directed writs of fieri facias to issue for 
 the amoimt due. 
 
 HM, That the mortgagee was not a 
 judgment creditor and thesBfore not en- 
 titled to any priority in the administration 
 of the assets of the mortgagee. An 
 administrator executed an assignment of 
 certain assets for the payment of certain 
 scheduled creditors. Upon the evidence 
 the assignment was set aside as between 
 the assignor and assignee, but there was 
 a reference to the master tp ascertain 
 whether any of the creditors were entitled 
 to any lien or charge ig)on the fund 
 assigned. Frontenac Loan Company v. 
 Morice, 4 M. R. 442. 
 
 7. Voluntary pa>ymentB — Corrobora- 
 tion of evidence of claimant against estate of 
 deceased — Voliwitary payments hy husbamd 
 for wife — lAabiUty of husband for miff's 
 funeral expenses. 
 
 1. Although there is no rule of law that 
 requires the evidence of a claimant upon 
 the estate of a deceased person to be 
 corroborated, yet it is a rule of prudence 
 
 for the protection of the estate from un- 
 founded claims; and, when the Master, in 
 taking the accounts of the husband as 
 administrator of the estate of his deceased 
 wife, disallowed the husband's claim to 
 certain lands that stood in her name for 
 want of corroboration, his finding should 
 not be disturbed." 
 
 Finch V. Finch, (1883) 23 Ch. D. 271, 
 and In re Hodgson, (1885) 31 Ch. D. at 
 p. 183, followed. 
 
 2. Payments for taxes, registration fees 
 and other expenses connected with the 
 wife's lands made in her lifetime by the 
 husband of his own accord, and without 
 the knowledge of the wife, were properly 
 disallowed. 
 
 3. A husband cannot recover from his 
 wife's estate money disbursed for the 
 expenses of her funeral imless she has 
 charged them by will upon her estate, or 
 unless there is some statute making such 
 expenses a charge upon her separate estate. 
 
 In re Sea, (1905)- 1 W. L. R. 460, 
 followed. 
 
 In re McMyn, (1886) 33 Ch. D. 575, 
 not followed. 
 
 Re Montgomery, Lumbers v. Montgomery, 
 20 M. R. 444. 
 
 See CONTRAKJT, VI, 1. 
 
 — Covenants, 8. 
 
 — DEVOLtmoN OF Estates, 1, 2. 
 — ■ Husband and Wife, IV, 3. 
 
 — • Limitation op Actions, 3. 
 
 — LoBD Campbell's Act, 1, 2.. 
 
 — Will. 
 
 ADMINISTRATOR 
 PENDENTE LITE 
 
 1. Jurisdiction to appoint — Surrogate 
 Courts Act, R.S.M. 1902, c. 41, ss. 18, 
 39 — King's Bench Act, s. 23, and Rules 27, 
 449 — Referee in Chambers, jurisdiction of. 
 
 When a suit is pending in the Court of 
 King's Bench to set aside a wiU, that 
 court has exclusive power, under section 
 23 of the King's Bench Act and sections 
 18 and 39 of the Surrogate Courts Act, 
 R.S;M. 1902, e. 41, to appoint an admin- 
 istrator pendente lite, and such power may, 
 under Rule 449 of the King's Bench Act, 
 be exercised by a Judge in Chambers. 
 
 Notwithstamding the generality of the 
 language used in Rule 27 of the King's 
 Bench Act, the Referee in Chambers has 
 no jurisdiction to make such an appoint- 
 ment. TelUer v. Schilemans, 16 M. R. 430 
 
13 
 
 ADMISSIONS 
 
 14 
 
 2. When appointed. 
 
 To entitle a suitor to have an adminis- 
 trator pendente lite of an estate appointed, 
 a case of necessity must be made out. 
 
 Hmrell v. Witts, (1866) L. R. 1 P. & 
 D. 103, followed. 
 
 If such case of necessity is shown as to 
 a portion of the estate only, an appoint- 
 ment, limited to Such portion, should be 
 made. Tellier v. Schuemans, 17 M. R. 
 303. 
 
 ADMISSIONS. 
 
 See AccmENT Insurancb, 2. 
 
 — Distress poh Rent, 3. 
 
 — evidencb, i, 2, 8. 
 
 — Partnekship, 2. 
 — • Pleading, XI, 2. 
 
 — Practice, XI, 2, 3. 
 
 ADOPTION. 
 
 iSee PbincipaI/ and Agent, V. 1. 
 
 ADOPTION OF WORK. 
 
 See MtJNiciPALiTT, II, 2. 
 
 AFFIDAVIT. 
 
 Statutory declaration— Coiieoi — Real 
 Property Act. 
 
 A caveat under The Real Property Act 
 was supported by a document beginning: 
 "I," so and so, "make oath and say," and 
 ending; "And I make this solemn declara- 
 tion, conscientiously beheving the same to 
 be triie and in pursuance of the Act 
 respecting Extra-Judicial Oaths." 
 
 Held, that this document was neither 
 an affidavit nor a statutory declaration. 
 Schvltz v. Archibald, 8 M. R. 284. 
 
 See Appeal from Order, 4. 
 
 — Arbitration and Award, 3. 
 — ' Capias. 
 
 — Chattel Mortgage, I, II, 2, 3; III, 
 
 2; V, 2, 3, 5. 
 ■ — Dominion Elections Act. 
 — ■ Election Petition, I, 1, 2. 
 — ■ Evidence, 3, 9. 
 
 — Examination for Discovert, 1 5. 
 
 See Examination on Atfidavit. 
 
 — ' extradition) 1, 5. 
 
 — Foreign Jitdgment, 4. 
 
 — Fraudulent Conveyance, 19. 
 
 — Garnishment, I, VI, 1. 
 
 — Homestead, 1. 
 
 — Jury Trial, II, 3. 
 — ' Law Stamps, I. 
 
 — Libel, 1. 
 
 — Mechanics' Lien, I. 
 
 — Practice, I; IV, 1; XXVIII, 18. 
 
 — PrivateJnternational Law. 
 
 — Production of Documents. 
 
 — Real Property Act, IV; 1. 
 
 — Scandalous Matter. 
 
 — Security for Costs, VIII, 2. 
 
 — Sheriff, 6. 
 
 — ' Solicitor's Lien fob Costs, 4. 
 
 — ' Summary Judgment, III, 2. 
 
 — Trespass and Trover, 1. 
 
 — Will, III, 2. 
 
 AFFIDAVIT OF JUSTIFICATION, 
 
 See Election Petition, II. 
 
 AFTER ACQUIRED PROPERTY. 
 
 See Equitable Assignment, 1. 
 
 AGENCY. 
 
 See Neghqbnce, IV, 1. 
 
 AGENCY TERMS. 
 
 See Solicitor and Client, II, 1. 
 
 AGREEMENT FOR LIEN ON LAND. 
 
 See Contract, XII, 2. 
 — • Covenants. 
 
 AGREEMENT 
 FOR SALE OF LAND. 
 
 1. Specific performance — StattUe of 
 Fraud^—Aviharity to agent to sign offer. 
 
 The defendant verbally expressed her 
 willingness to sell the land m question, 
 
15 
 
 AGREEMENT RESPECTING COSTS 
 
 16 
 
 which -was'her property, to the plaintiff 
 for S300, but referred him to her husband 
 who was not then Uving with her. The 
 , plaintiEf then obtained from the husband 
 a document signed by him giving the 
 plaintiff an option, to hold good for one 
 week, to purchase the land at that price. 
 The plaintiff alleged that within the week 
 he - handed to ihe defendant a letter 
 addressed to her husband containing an 
 absolute acceptance of the offer. This 
 letter was not produced at the trial. 
 Plaintiff had kept no copy of- -it, but 
 undertook to give the contents of it in his 
 evidence. The offer did not contain a 
 sufficient description of the property. 
 The defendant and her husband both 
 swore that the defendant had not given 
 her husband any authority to sign the 
 offer. 
 
 Held, that specific performance of the 
 agreement should not be discreed. Heath 
 V. Sanfcyrd, 17 M. R. 101. 
 
 2. Taking possession— Ooreiroci — Stat- 
 ute of Frauds — Part performance — Man- 
 damus — King's Bench Act, Rule 879. 
 
 1. A written offer to sell land on certain 
 terms, accompanied by an intimation that, 
 if the purchaser takes possession, the 
 vendor would treat that act as an accep- 
 tance of the qffer, and the subsequent 
 taking of such possession, without further 
 communication with the vendor, together 
 constitute a binding contract of purchase 
 and sale of the land, which is taken out of 
 the Statute of Frauds by that act of 
 taking possession, such act being in itself 
 a part performance of the contract, as 
 well as an essential in the making of it. 
 
 CarM V. Carbolic Smoke Ball Co., 11893] 
 1 Q.B. 256, followed. 
 
 2. If there had been no contract between 
 the parties respecting the land taken by 
 
 • the defendants for their right of way, the 
 plaiatiff would have been entitled to the 
 alternative relief claimed by way of 
 mandamus to compel the defendants to 
 proceed to have the compensation deter- 
 mined under the provisions of the Railway 
 Act. 
 
 3. ReUef by way of mandamus may now, 
 under Rule 879 of the King's Bench Act, 
 be obtained by* an action. 
 
 Morgan v. Metropolitan Railway Co., 
 (1868) L.R. 4 C.P. 97, followed. Carr v. 
 C. N. R. Co., 17 M. R. 178. 
 
 1 
 
 See Contract, II, 2; IX, 5. ' 
 
 — Covenants, 3. 
 
 — Mortgagor and Mortgagee, IV, 1. 
 
 See Real Propeety Limitation Act. 
 
 — Statute or Frauds, 1. 
 
 — Vendor and Ptjhchasee, I, II, 6; 
 
 III, 2; IV, 11. 
 
 — Will, III„6. 
 
 AGREEMENT RESPECTING COSTS. 
 
 See Solicitor and Client, I, 2, 3, 4. 
 
 AGREEMENT TO PAY CREDITORS. 
 
 See Parties to Action, 7. 
 
 AGREEMENT TO STIFLE 
 PROSECUTION. 
 
 See B;nds. 
 
 AGREEMENT UNDER SEAL. 
 
 See Sale of Goods, VI, 3. 
 
 ALIEN LABOUR ACT. 
 
 B.S.C. 1906, c. 97, s. i— Action brought 
 imth written consent of judge for violation 
 of Act — Only the person who gets the consent 
 can sue. 
 
 Under section 4 of the Alien LUbour 
 Act, R.S.C. 1906, c. 97, it is only the 
 party or parties Vho obtain the written 
 consent of a Judge of the Court that can 
 be plaintiff or plaintiffs in an action to 
 recover the prescribed penalty for viola- 
 tion of the Act. 
 
 The action in this case was accordingly 
 dismissed with costs because it was 
 brought by Ira S. Miuray, whereas the 
 consent was given on the application of 
 Muiray Brothersi- Murray v. Henderson, 
 19 M. R. 649. 
 
 ALIMONY. 
 
 1. Cruelty — Legal cruelty — Condona- 
 tion — Receipt by husband of income of 
 wife's separate property — Action for arrears 
 of annuity — Real Property Limitation Act, 
 
17 
 
 ALIMONY 
 
 18 
 
 R.S.M. 1902, c. fOO, ss. 18, 24r-Charge on 
 land by agreement substituted for former 
 agreement. 
 
 Plaintiff and defendant married in 1887. 
 In 1892 an action for alimony brought by 
 plaintiff was settled by the resumption of 
 cohabitation and by defendant agreeing 
 to pay her $3 ijer week during her life in . 
 addition to maintaining her acbording to 
 his station in life. The parties Uved to- 
 gether until April, 1908, and during all 
 that period seemed on the whole to have 
 got along fairly well together. The de- 
 fendant's conduct towards .the plaintiff 
 was, according to> the findings of fact, 
 often morose and unkind aijid he sometimes 
 swore at her and he displaj^ed none of 
 that sympathetic consideration for his 
 wife which a husband ought to show, but 
 the only act of violence charged since the 
 settlement of 1892 was one which had 
 taken place in 1^04 and had been provoked 
 by the plaintiff who was quick-tempered 
 and irritable and often made no attempt 
 to control either her language or her 
 actions. 
 
 Held, that the plaintiff had not made 
 out a case of legal cruelty, as defined by 
 the decided casei, entithng her to Hve 
 apart from her husband. 
 
 Russell V. Russell, [1897] A.C. 395, 
 followed. 
 
 Lovell V. Lovell, (1906) 13 O.L.R. 669, 
 distinguished. 
 
 When a husband receives the income of 
 his wife's separate estate and disburses it 
 for the purposes of their joint establish- 
 ment, he cannot be called on for an 
 iccount, unless the wife can prove that^^he 
 received it by way of loan. 
 
 Rice V. Rice, (1898) 31 O.R. 59, and 
 Edward v. Cheyrie, (1888) 13 A. C. 385, 
 followed. 
 
 The agreement of 1892 made the pay- 
 ments of $3 per week a charge on the 
 defendant's lands. In 1900, in order to 
 permit him to raise a loan on the land so 
 charged, the plaintiff gave him a quit 
 claim deed on the understanding that 
 another agreement of similar tenor would / 
 a* once be executed and registered a.fter 
 the mortgage. This was done, but noth- 
 ing had ever been paid under either of 
 these agreements. 
 
 Held, that; in the absence of a plea 
 based on section 24 of The Real Property 
 Limitation Act, R.S.M. 1902, c. 100, the 
 defendant was liable for the arrears of the 
 annuity from the date of the first agree- 
 ment with interest, however, for the last 
 six years only, the whole being a charge 
 
 on the lands referred to. Wiliey v. Willey 
 18 M. R. 298. 
 
 2. Desertion — Offer to receive wife hack 
 — Bona fides. 
 
 The defendant in an action for alimony 
 offered to "receive the plaintiff as his 
 wife at any time when she is prepared to 
 come and* reside with him and accept the 
 home he is able to provide for her and 
 conduct herseff as a wife reasonably 
 should;" but the trial Judge, being satis- 
 fied upon the evidence that desertion had 
 been proved and that the defendant's 
 offer was not honestly made but solely 
 for the purpose of avoiding a judgment 
 for ahmony. 
 
 Held, following Roe v. Roe, (1899) 31 
 O.R. 321, that such offer^ under the cir- 
 cumstances, was not sufficient to defeat 
 the plaintiff's claim. E — v. E — , 15 
 M. R. 352." 
 
 3. Interim alimony — King's Bench 
 Act, Rules 433, &il— Practice. 
 
 1. Under Rule 433 of the King's Bench 
 Act, an appUcation for interim alimony 
 may he made as soon as the defence is 
 filed or the time for fihng one to the 
 original statement of claim has elapsed. 
 
 2. Unless the statement of claim makes 
 a demand for a specific sum by way of 
 interim ahmony, as contemplated by Rule 
 601 of the King's Bench Act, it should 
 only be allowed from the date of the 
 order, not from the commencement of the 
 action: Peterson v. Peterson, (1873) fi 
 P.R. 150. 
 
 3. The merits of the defence set up 
 should not be looked into or considered 
 on an application for interim alimony. 
 
 Foden v. Foden, [1894] P. 307; Campbell 
 V. Campbell, (1873) 6 P.R. 128, and Keith 
 V. Keith, (1876) 7 P.R. 41, followed. ■ 
 McArthur v. McArthur, 15 M. R. 151. 
 
 4. Jurisdiction — Construction of Statutes. 
 Bill for alimony and maintenance. 
 Held, upon demurrer — 
 
 1. That, although, by a strict hteral 
 interpretation of Con. Stat., c. 31, s. 6, 
 the Court would have no jurisdiction to 
 decree ahmony, yet, as to so hold would 
 make other provisions of the statute 
 meaningless, a more liberal interpretation, 
 one which would give the Court the juris- 
 
 ■ diction it was evidently intended should 
 be given, ought to be adopted. 
 
 2. That, under Con. Stat,, Man. c. 31, 
 s. 3, the Court hsls power to decree alimony. 
 
19 
 
 ALIMONY 
 
 20 
 
 3. That alimony may be decreed apart 
 from divorce or judicial separation, al- 
 though not so in England. 
 
 4. A single judge has jurisdiction to 
 decree alimony. Wood v. Wood, 1 M. R. 
 317. 
 
 6. Misconduct of wife before mar- 
 riage — Condonation — Property in engage- 
 ment ring and wedding presents — King's 
 Bench Act, s. 30. - 
 
 1. Unchastity before marriage and con- 
 cealment of it from the husband until the 
 birth of a child is not sufficient to make 
 the marriage null and void or to disentitle 
 the wife to aUmony. 
 
 Sioift V. Kelly, (1835) 3 Knapp, 293; 
 Moss V. Moss, [1897] P. 2B3; Nelligan v. 
 Nelligan, (1895) 26 O. R. 8., and Aldrich 
 V. AUnch, (1892) 21 O. R. 447, followed. 
 
 2. Under section 30 of the King's 
 Bench Act, R. S. M. 1902, c. 40, a wife 
 will be entitled to alimony if, by the law 
 of England as it stood on the 15th day of 
 July, 1870, she would have been entitled 
 to a decree for the restitution of conjugal 
 rights. By that law nothing bat cruelty 
 or adultery on the part of a wife after 
 marriage would be a bar to an order for 
 such restitution or entitle the husband to 
 a judicial separation. 
 
 Scott V. Scott, (1864) 4 S. & T. 113, and 
 Russell V. RusseU, [1897] A. C. 395, 
 followed. 
 
 3. Resumption of cohabitation is a 
 necessary ingredient of condonation by 
 the husband of any matrimonial offence 
 committed by the wife, such as would 
 prevent him from relying upon it as a 
 defence to an alimony suit. 
 
 Keais v. Keais, (1859) 1 S. & T. 334 
 followed. 
 
 4. A wife abandoned by her husband is 
 entitled to the engagement ring which he 
 had given her before mairiage, unless 
 she had absolutely surrenderee^ it to him; 
 but she is not, under ordinary circum- 
 stances, entitled to demand and recover 
 possession of wedding presents given by 
 friends of the husband at the time of the 
 marriage. A. v. A., 15 M. R. 483. 
 
 6. Separation deed — Proof of former 
 marriage of plaintiff — Setting aside deed of 
 wife on grounds of undvs influence, lack of 
 independent advice and mental weakness — 
 Husband and wife — Aequiescercce and delay 
 before commencing action. 
 
 A deed of separation executed by 
 husband and wife, containing mtitual 
 covenants that they will thereafter live 
 
 separate and apart from one another, 
 that each will not thereafter compel the 
 other to cohabit with, and will not disturb, 
 trouble or molest the other and will not 
 claim any of the property or goods of the 
 other thereafter, unless it can be declared 
 void for any reason such as fraud, duress, 
 want of understanding on the part of the 
 wife, lack of indepsndent advice, mis- 
 representation or undue influence, if 
 followed by an immediate separation, re- 
 quires no other consideration _to support 
 it and is a complete defence to a subse- 
 quent action by the wife for alimonyr 
 
 Hunt V. Hunt, (1862) 31 L. J. Ch. 161; 
 
 Flower v. Flower, (1871) 25 L. T. 902; 
 
 'Marshall v. Marshall, (1879) 5 P. D. 19, 
 
 - and Clark v. Clark, (1885) 10 P. D. 188, 
 
 followed. 
 
 There was no evidence of any fraud, 
 duress, misrepresentation or undue in- 
 fluence inducing the i)laintiff to execute > 
 the deed, and the parties had been living 
 apart for ten years, but the trial Judge 
 held that' she was not bound by it because 
 of some weakness of mind — ^her husband 
 having had her examined twice as to 
 her sanity although pronounced sane, — 
 for lack of independeiit advice and because 
 of her distress of mind caused by her own 
 recent revelation to the defendant of an 
 alleged former marriage, which the trial 
 Judge found had not taken place. He 
 also held that the deed was without con- 
 sideration and therefore void. 
 
 Held, Richards, J.A , dissenting, that 
 there was nothing in the evidence, a 
 summary of which will be found in the 
 judgnients, to warrant a findmg tlwt the 
 plaintiff was not quite sane or did not 
 understand what she was doing or that 
 the deed was void for any of the other 
 reasons given. 
 
 Per HowEUL, C.J.M., and Perdue, J.A. 
 The deed having been acted upon by 
 both parties and not impeached by the 
 plaintiff until after the lapse of ten years, 
 it should not be set aside except upon 
 the olearest~proof that she was induced to 
 sign it by some influence which made it 
 not bindmg upon her and the delay was 
 sufficiently excused. 
 
 Sibbering v. Balcarras, (1850) 3 De Q. 
 & Sm. 735, and Allcard v. Skinner, (1887) ' 
 36 Ch. D. 145, followed. 
 
 Per Howell, C.J.M. The statements 
 which -had. been previously made by 
 the jjlaiatiff, under the circumstances set 
 out in the judgment, to her husband 
 and other persons, authenticated by her 
 statutory, declaration and by the recitals 
 
21 
 
 ALLEGATIONS OF FRAUD, 
 
 22 
 
 in the deed, that she had been previously 
 married to and cohabited with another 
 man, tended so strongly to prove that her 
 marriage to the defendant was void, that 
 the onus was thrown upon her to give 
 some independent evidence that the 
 former marriage was a fiction, and should 
 not be held to be displaced merely by her 
 oath at the trial that such statements 
 were false. Ditch v. Ditch, 21 M. R. 507. 
 
 See Infant, 9. 
 
 — Practice, XXVII, 1. 
 
 ALLEGATIONS OF FRAUD. 
 
 See Pleading, III, 1. 
 
 — ■ Summary Judgment, I, 1. 
 
 ALLOWANCE OF SECURITY. 
 
 See Security for Costs, I. 
 
 ALTERATION OF INSTRUMENT. 
 
 See Banks and Banking, 1. 
 
 — BiLL8_AND Notes, III, 1, 2. 
 — ■ Principal and Surety, 4. 
 
 — Vendor and Purchaser, VI, 17. 
 
 ALTERNATIVE RELIEF. 
 
 See Plbabing, XI, 3. 
 
 AMBIGUITY. 
 
 1. Contract — Words — Meaning of "to" 
 a certain date. 
 
 The defendants purchased a quantity 
 of wheat from the plaintiff and agreed to 
 give him any rise in the market price to 
 the 1st of May. 
 
 On the 30th of April the plaintiff went 
 to defendants in order to get a settlement 
 for his wheat. 
 
 Held, following Nichols v. Ramsel, 2 
 Mod. ^80 ; Kenmlv.Kingsley, 120 Mass. 
 94, and Peovle v. Walker, 17 N. Y. 502, 
 that the word "to" in the present case 
 should not be held to include the day 
 
 named, but that the period intended ex~ 
 pired on the 30th of April. 
 
 The legal effect of a document cannot 
 be altered by the subsequent conduct of 
 the parties, but it is not Unreasonable to 
 look at that for an explanation of an 
 ambiguous phrase: Pollock on Contracts, 
 p. 431. McCuaig v. PhiUips, 10 M. R. 
 694^ 
 
 See Desciiiption of Land, 1, 2. 
 
 — Examination for Discovery, 12. 
 
 — Slander. 
 
 — Statute of Frauds, 5. 
 
 AMENDMENT. 
 
 X. After appeal—Amendment of decree 
 after rehearing. 
 
 A bin filed to enforce a mechanic's lien 
 was dismissed at the- hearing, on the 
 ground that the Men had ceased to exist, 
 and upon rehearing the decree was 
 affirmed. The question of the personal 
 Uability of the defendant, although raised 
 by the pleadings,^ and therefore concluded 
 by the decree, was not, in reaUty discxissed 
 at the hearing. Plaintiff having after- 
 wards sued at law, the defendant pleaded 
 the decree by Way of estoppel. ~ Upon a 
 petition by the plaintiff, praying that the 
 decree might be amended by inserting a 
 provision that the dismissal of the bill 
 should be without prejudice to the plain- 
 tiff's right to proceed at law. 
 
 Held, That the decree should be so 
 amended upon terms as to costs. Kelly 
 V. McKemie. 2 M. R. 203. 
 
 2. Delay in applying for.^ 
 
 An appUoation by ifke defendant made 
 in good faith in chambers before the trial 
 for leave to amend the statement of 
 defence should not be refused although 
 there has been great delay in making it, 
 only partially accounted for by negotia- 
 tions for settlement, whdn no iajury can 
 be caused to the plaintiff by the amend- 
 ment that cannot be compensated for in 
 costs. 
 
 Johnson v. Land Corporation, (1890) 6 
 M. R. 527, and Tildesley v. Harper, 
 0878) 10 Ch. D. 393, foUowed. Mc- 
 Pherson v. Edwards, 19 M. R. 337. 
 
 3. Of Judgment — Amendment after 
 jvdgrmnt entered upon demurrer — Juris- 
 diction of referee. 
 
 To a declaration for personal service 
 
23 
 
 AMENDMENT. 
 
 24 
 
 by the plaintiff as the servant of the 
 defendant, the defendant pleaded various 
 ^ pleas. To one of these the plaintiff 
 deimirred; upon the others he joined 
 issue. Defendant then obtained an 
 order striking out aU the pleas except 
 the one demurred to- Plaintiff suc- 
 ceeded upon the demurrer. Defendant 
 then applied in Chambers to add two 
 pleas. The referee refused the application 
 and the 'plaintiff signed judgment. The 
 defendant appealed from the referee's 
 order. 
 
 Held, 1. That the referee had jurisdic- 
 tion to permit the pleas to be added. 
 
 2. The discretion to amend should be 
 used to the utmost extent consistent with 
 justice and the rights and interests of 
 the parties. 
 
 3. An equitable plea asking for an 
 account permitted to be added, unless the 
 plaintiff would undertake not to set up 
 the judgment in defence to a bill in equity. 
 
 4. Circumstances under which a bill 
 for an accoimt wiU lie, discussed. Johnson 
 V. Land Corporation of Canada, 6 M. R. 
 527. 
 
 4. Limitation of aetions — Statute of 
 Limitations — Neuo trial — County Court 
 action — Dispute note filed too late^-Costs. 
 
 Defendant, having instructed his solici- 
 tor to prepare and file a dispute note in a 
 County Court action setting up the 
 Statute of Limitations and the plea of 
 never indebted, which the soUcitor ne- 
 glected ' to file in proper time, himself 
 prepared and filed within the time allowed 
 another dispute note setting up simply 
 the plfea of never indebted. 
 
 At the trial the County Court Judge 
 struck out the dispute note filed too late, 
 refused to allow j^e other one to be 
 amended, and entered n, verdict for the 
 plaintiff. 
 
 Held, that the dispute note filed too 
 late was irregular and was properly struck 
 out, but that an amendment of the other 
 dispute note, raising the Statute of Limi- 
 tations, and a new trial shordd be allowed 
 under the circumstances upon the defend- 
 ant paying all costs to date in the court 
 below, except those of issuing and serving 
 the writ, and the costs of the ' appeal 
 within ten days after taxation; otherwise 
 that the appeal should be dismissed with 
 costs and the judgment allowed to stand. 
 Lachapelle v. Lemay, 17 M. R. 161. 
 
 6. Misjoinder of defendants — Statute 
 of Limitations. 
 
 Plaintiffs issued a writ upon a note 
 signed J. G. & Co., against J. G. and W. 
 G. Afterwards they struck out W. G., 
 and moved to strike out the defence of 
 J. G. He defended on the ground that 
 he had a partner but declined to give his 
 name. Plaintiffs then amended by adding 
 W. B., and went down to trial. The 
 
 Elaintiff's evidence showed that not W. B. 
 ut S. B. was the partner, whereupon 
 plaintiffs moved to amend by striking out 
 W. B. Since the commencement of the 
 action the statute of limitations would 
 have barred the remedy against S. B. 
 The plaintiff's evidence as to the circum- 
 stances under which the note was made 
 was contradictory. 
 
 Leave to amend was refused, and a 
 non-suit entered. Merchants Bank v. 
 Good, 6 M. R. 643. 
 
 6. Misnomer — Amendment of defend- 
 ant's name after decree — Mechanic's lien 
 against school house — Costs. 
 
 Plaintiff filed a mechanic's Uen against 
 lands of "The School Trustees for the 
 Protestant School District of Bradley, 
 No. 369, in the Province of Manitoba;" 
 and filed a bill upon such Uen against the 
 corporation using the name above set out. 
 The bill was taken pro confesso. After 
 decree and sale a petition was filed by the 
 plaintiff to amend the style of cause 
 throughout. 
 
 Held, 1. That the amendment should 
 be allowed. 
 
 2. That the land, including a public 
 school erected upon it, was Uable to charge 
 and sale under a mechanic's Uen. 
 
 3. That the plaintiff should pay the 
 costs of the petition. Moore v. Protestant 
 School District of Bradley, No. 369, 5 M. R. 
 49. 
 
 7. New defences if declaration 
 amended 
 
 Action upon a note. Upon a motion 
 being made at the trial for a non-suit, on 
 the ground of variance, the plaintiff asked 
 to amend his declaration by alleging that 
 the note was payable at the Ontario Bank, . 
 Winnipeg. 
 
 ■ The amendment was aUowed, as the 
 defendant could not be prejudiced, but 
 
 KiLLAM, J., Held, that the defendant 
 had thereupon the same right to plead 
 to the amended declaration, as he 
 had to plead to the declaration, if origin- " 
 ally filed as amended; that he was not 
 Umited to the defences set up to. the 
 original declaration, and that the Court 
 
25 
 
 AMENDMENT. 
 
 26 
 
 had no discretion in the matter. Cameron 
 V. Perry, 2 M. R. 231. 
 
 8. Of pleadings — Transfer of land 
 under Real Property Act, effect of — Parties 
 to action — Estoppel. 
 
 A transfer of land, in the form provided 
 in the JReal Property Act, made by the 
 registered owner siad without any special 
 covenants or recitals, does not operate as- 
 an estoppel and does -not vest in the 
 transferee an equitable interest subse- 
 quently acquired by the transferor in the 
 absence of any fraud oi misrepresentation 
 by the latter. 
 
 ' Noel V. Bewley, (1829) 3 Sim. 103, and 
 Be Hoff'e, (1900) 82 L. T. 556, distin- 
 guished. • 
 
 In an action by such a transferee against 
 a, person who had, before the registration 
 of the transfer, filed a caveat against >the 
 land, elainnlag that the transferor, Gard- 
 iner, was a trustee for him of an undivided 
 one-third interest therein, the plaintiffs 
 set up that, after the filing of the caveat, 
 the defendant sold his interest to Gardiner 
 and that they were, as transferees from 
 Gardiner, entitled to the fee siapple in the 
 land free from any claim of the defendant. 
 Afterwards the plaintiffs sought to 
 amend their statement of claim by asking, 
 as alternative relief, that they might be 
 declared to stand in ,the position of 
 Gardiner towards the defendant in respect 
 of the money due from Gardiner to de- 
 fendant and that an account might be 
 taken as between the two- latter and that 
 the plaintiffs might be declared entitled 
 to specific performance by defendant of 
 . his agreement with Gardiner. 
 
 Hdd, that such amendments should not 
 be allowed, because plaintiffs were not 
 entitled to any interest in the land ac- 
 quired by Gardiner ^fter his transfer to 
 them, and also because Gardiner was not 
 a party to the action nor was it proposed 
 by the amendments to make him a party. 
 Bennett v. Gilmour, 16 M. R. 304. 
 
 9. Production of documents — Prac- 
 
 ■ tice — Partnership accounts. 
 
 At the trial in this case defendants' 
 counsel asked leave J;6 amend the state- 
 ment of defence, by alleging that the 
 plaintiff and defendants had been in part- 
 nership in a skating rink business, and 
 that at the dissolution of the partnership 
 an accoimt was taken by which it was 
 shown that the plaintiff was indebted to 
 the defendants. 
 
 The accounts of the partnership busi- 
 ness had been kept in a set of books to 
 which the defendants had access, although 
 they were no longer in their possession or 
 control, and in obedience to an order for 
 production the defendant Maim had made 
 an affidavit in which he stated that he 
 had no documents relating to the matters 
 in dispute in his possession or power; and 
 although the plaintiff wanted to see and 
 inspect the books he was refused access 
 to them. 
 
 Held, that the defendants should not 
 now be allowed the amendment asked for, 
 and that the partnership accounts should 
 not be gone' into in this action, more 
 especially as it was open to the defendants 
 by an independent action to have the 
 partnership accounts taken, and thereby 
 to recover any amount that nlight be 
 due to them. 
 
 Mertens v. Haigh, 11 W. B. 792, re- 
 ferred to. Douglas v. Mann, 11 M. R. 
 546. 
 
 Sen Accident Insurance, 1. 
 
 — Administkation, 4. 
 
 — Bills and Notes, VIII, 1. 
 
 — Bonds. 
 
 — BmLDING CONTEACT, 6. 
 
 — Capias, 2, 4. 
 
 — Certiorari, 2. 
 — ■ Company, IV, 14. 
 
 — Contract, XII, 1. 
 
 — ^himtnalLaw, 1, 1, 2; X, 3; XIII, 3; 
 XVII, 7. 
 
 — Election Petition, VI, 1; VII, 3, 4. 
 
 — Evidence, 13. 
 
 — Extradition, 8. 
 
 — Fraudulent Conveyance, 2, 15. 
 
 — Fraudulent Preference, III, 3. 
 
 — Garnishment. I, 7; VI, 8. 
 
 — Landlord and T:^nant, I, 2. 
 . — Limitation of Actions, 4. 
 
 — Liquor License Act, 6, 10, 14. 
 
 — Master and Servant, II. 
 
 — Mechanics' Lien, III, 1; VIII, 1. 
 — • Misrepresentation, III, 2. 
 
 — Pleading, I, 1, 2; III, 2; VIII, 1. 
 
 — Practice, II, III, 2; X, 3; XVII, 2; - 
 
 XXIII, 1. 
 
 — Prohibition, I, 1. 
 
 — Real Property Act, III, 6. 
 
 — Real Property Limitation Act, 4. 
 
 — Right of Action. 
 
 — ■ Summary Judgment, II, 4. ' 
 
 — Title to Land, 2. 
 
 — Vendor and Purchaser, VI, 12; 
 
 VII, 11. 
 
 — Workmen's Compensation por_In- 
 
 JURIES Act, 4. 
 
27 
 
 AMENDMENT OF JUDGMENT. 
 
 28 
 
 AMENDMENT OF JUDGMENT. 
 
 See Costs. 
 
 AMOUNT IN QUESTION. 
 
 See Appeal from County Court, II. 
 — Appeal to P^ivt Council, 7. 
 
 ANIMAL DISEASES ACT. 
 
 See Sale op Goods, VI, 1. 
 
 ANIMAL FER^ NATURE. 
 
 Baecooi\ — hiahilUy of owner for damages 
 done by. 
 
 A raccoon is an animal ferae natures 
 and a person who keeps one in a town ia 
 liable in damages for any injury inflicted 
 by it on a neighbor upon escaping from 
 captivity, although the animal has been 
 kept in the defendant's house for a long 
 time and was supposed to have been tame. 
 
 Filbum V. Peoples Palaee, etc., (1890) 
 25 Q.B.D. 258, foUowed. ' 
 
 Andrew v. Kilgour, 19 M. R. 545. 
 
 ANIMALS DAMAGING CROPS. 
 
 See Railways, VI, C, 8. 
 
 ANIMALS KILLED ON RAILWAYS. 
 
 See Railways, VI, B, 1, 2, C. 
 
 ANIMALS RUNNING AT LARGE. 
 
 1. Fences — By-law regvlating — Munici- 
 pal Act, B. S. Jkr.l902,c. 116, ss. 643 (b), 
 644 (d). 
 
 1. At common law the owner of animals 
 must keep them from trespassmg on his 
 neighbors' crops though enclosed by no 
 fence or by an insufficient fence. 
 
 2. A by-law of a municipality passed 
 under sub-section (b) of section 643 of 
 The Municipal Act R. S. M., 1902, c. 
 116, which does not expressly permit any 
 
 animals to run at large, is not sufficient to 
 protect, the owner of animals from liability 
 for their trespasses on lands even if un- 
 enclosed by a fence of the character re- 
 quired Ijy the by-law. 
 
 3. A clause in such a by-lfw pirowidJng 
 that no person shall be entitled to recover 
 damages for injuries done to his crops by 
 trespassing cattle unless his fences are of 
 the character required by the by-law^ if 
 enacted prior to the passage of the amend- 
 ment of the Municipal Act which is now 
 sub-section (d) of section 644, was idtra . 
 vires of the council of the municipality 
 and was not ratified or legahzed by such 
 amendment. 
 
 The King v. Nunn, (1906) IS M, R. 
 288, followed. 
 
 Watt V, Dryidale, 17 M. R, 15. , 
 
 •2. Fences — Damages — Municipal Act, 
 B. S. M. 1902, c. 116, ss. 643 ih) and 644 
 (i). 
 
 Action for damages caused to plain- 
 tiff by defendant's cattle trespassing on 
 his lands which were not fenced. De- 
 fendant relied on a by-law of the munici- 
 pality, presumably passed under the 
 powers conferred by sub-section (b) of 
 section 643 and sub-section (d) of section 
 644 of the Municipal Act, R.S.M. 1902, 
 c. 116, a,nd declaring that "it shall be 
 lawful for any person to permit his horses 
 or cattle * * * to run at large in any 
 season of the year * * * and no one 
 shall be at hberty to claim damages 
 against the owner of such horses or cattle 
 running at large or doing damage urdeSs 
 he shall have surrounded his lands and 
 premises with a lawful fenc? as defined hy 
 by-law of this municipality." 
 
 At the trial there was no by-law proved 
 which diowed wha,t shoxild constitute a 
 la,wful fence in the municipality except 
 one which related only to barbed wire 
 fences. 
 
 Hdd, that the defence failed and the 
 plaintiff was entitled to recover. Dalziel 
 V. Zastre, 19 M. R. 353. 
 
 3. Fences. — Damages — Municipal Act, 
 - B.S.M. 1902, c. lie, ss. 643 (b), 644 (d). 
 
 The power of a municipal cotmcil, under 
 sub-section (d) of section 644 of the 
 Municipal Act, R.S^M. 1902, c. 116, to 
 pass a by-law limiting the right of a land 
 owner to recover damages for any inJOTy 
 done by trespassing animals to cases in 
 which the land, is enclosed by a fence of 
 the nature, kind and height required by 
 the by-law, should be held to be restricted 
 
29 
 
 ANNUITY. 
 
 30 
 
 to cases in which the animals go upon the 
 land from some adjoining land where they 
 have a right to be, and such by-law is no 
 protection to the own^r of animals tres- 
 passing from a highway, if the council has 
 not passed a by-law under sub-section (b) 
 of section 643, for allowing and regulating 
 the running at large of animals in the 
 mimicipaUty. 
 
 Am. & Eng. Ency. vol. xii, p. > 1044, and 
 Enc. of Law & P., vol. 2, p. 401, followed. 
 
 Jack V. Stevenson, 19 M. R. 717. 
 
 ANNUITY. 
 
 See Alimony 1. 
 
 — MOBTGAGOE AND MORTGAGEE, I, 5. 
 
 — Will, III, 1, 5. 
 
 ANTE-NUPTIAL SETTLEMENT. 
 
 See Fraudulent Conveyance, 14. 
 
 APPEAL. 
 
 See Attachment of the Person, 1. 
 
 — Evidence, 3. 
 
 — Practice, III. 
 
 — ■ Rectification Op Deed, 1. 
 
 APPEAL AS TO COSTS. 
 
 See Interpleader, II, 1. 
 
 — Trustee and cestui que trust, 2. 
 
 APPEAL FROM AWARD. 
 
 See Railways, V, 2. 
 
 APPEAL FROM COUNTY COURT. 
 
 I. Abandonment op Right to Ap- 
 peal. 
 ll. Amount in Question. 
 
 III. Practice in Appeal. 
 
 IV. Jurisdiction. 
 
 » V. Judge's Finding op Facts. 
 VI. Decisions Appealable. 
 VII. Decisions Not Appealable. 
 VIII. Security. 
 
 I. Abandonment of Right to Appeal. 
 
 Practice — Ammini, in question on appeal 
 —R.S.M., c. 33, s. 315, and 59 Vic, c. 3, s. 
 2. 
 
 A defendant in a Pounty Court suit 
 against whom a writ of attachment haa 
 been issued does not lose his right to 
 appeal from the Coiinty Court Judge's 
 order refusing to set it aside by pro- 
 ceeding to the trial of the action in the 
 County Court, by applying for a new trial 
 after a VOTdict against him, by proceeding 
 with such new trial and calling and exam- • 
 ining witnesses, by taking out and serving 
 the order against which he wishes to 
 appeal, or by delay in taking out and , 
 serving the order when no objection that 
 the appeal proceedings had been be^n 
 too late is taken by the notice of motion. 
 
 The plaintiff's claim was for $70.70, but 
 he only recovered judgment at the first 
 trial for $47.70 and costs. This was set 
 aside and a new trial granted when de- 
 fendant commenced the appeal proceed- 
 ings. At the second trial the plaintiff 
 had a verdict for $67.50. 
 
 Held, that the appeal was rightly 
 brought to the Full Court imder R. S. M., 
 1892, c. 33, s. 315 as re-enacted by 59 
 Vic, c. 3, s. 2. Hutchinson v. Colby, 12 
 M. R. 307. 
 
 II. Amount in Question. 
 
 1. Jurisdiction. 
 
 In deciding whether an appeal from a 
 Coxmty Court decision under section 315 
 of the -County Courts Act, as re-enacted 
 by 59 Vic, c. 3, s. 2, should be taken to 
 a single Judge, or to the Full Court, it is 
 Hot the amount claimed by the plaintiff 
 which has to be looked at, but it is neces- 
 sary to consider what" is the amount 
 which the party appealing seeks to relieve 
 himself from, or to recover by his appeal. 
 
 The defendant ajjpealed to the Full 
 Court from a verdict against, him for 
 $39.10 and relied on the fact that the 
 plaintiffs' claim was for a sum exceeding 
 fifty dollars. 
 
 Held, following Macfarlane v. Ledaire, 
 15 Moo. P. C. 181, and Allan v. Pratt, 13 
 A. C. 780, that the appeal should be 
 struck out with costs. Massey-Harris 
 Co. V. McLaren, ll M. R. 370. 
 
 2. Jurisdiction. 
 
 In an action in a County Court the 
 plaintiff's claim was for $200 damages, 
 but in the opinion of the Coiu-t the 
 
31 
 
 APPEAL ?ROM COUNTY COURT. 
 
 32 
 
 evidence showed that he could not in any 
 view of the case have recovered more 
 than $50. He appealed to the FuU Court 
 against a verdict for defendant. 
 
 Hdd, that under section 315 of the 
 County Courts Act as amended. bjf- 59 
 Vic, o. 3, s. 2, "the amount in question" 
 means in such a case the amount that the 
 plaintiff might possibly have recovered 
 and, this not exceeding $50, that the 
 Uppeal should have been made to a single 
 Judge and should be struck out with 
 costs. Aithen v. Doherty, 11 M. R. 624. 
 
 3. County Courts Act, R.S.M., 1892, 
 c. 33, s. 315—59 Vic. c. 3, s. 2. 
 
 Held, that on an appeal from a judg- 
 ment of a Coxmty Court the Judge 
 appealed to might review the evidence 
 with the view of determining the value of 
 the property in question; that such value 
 in the present case was less than $20; and 
 ihat, under section 315 of The County 
 Courts Act, as amended by 59 Vic, c. 3, s. 
 2, plaintiff was not entitled to appeal, and 
 that the appeal should be dismissed with 
 costs. 
 
 Aitken v. Doherty, 11 M.R. 624, followed. 
 
 Douglas v. Parker, 12 M. R. 152. 
 
 III. Phacticb in Appeal. 
 
 1. Certificate of judge — Evidence " in 
 substance." 
 
 Accompanying an appeal book upon a 
 County Court appeal was a certificate 
 from the County Judge, that it contained 
 "the'. evidence in substance taken at 
 the trial." 
 
 Held, That the certificate was in- 
 sufficient, and the appeal was struck out 
 of the list. Winnipeg Water Works Co. v. 
 Winnipeg Street Railway Co., 6 M. R. 614. 
 
 2. Filing of evidence — Delay in prose- 
 cution—Copy of evidence — Transmission of 
 papers hy,the County Court Clerk. 
 
 In filing a copy of the notes of evidence 
 in the County Court for the purpose of an 
 appeal to the Queen's Beiich,it is necessary, 
 under section 324 of the County Courts 
 Act, that a law stamp should be afiixed 
 to the document. 
 
 It is essential \mder section 323 of the 
 Act, that the Clerk of the County C^urt 
 should transmit directly to the Prothon- 
 otary of the Queen's Bench, in a sealed 
 package, all the papers and proceedings 
 in his office relating to the suit; and, where 
 •mch papers were handed by the County 
 
 Court Clerk to the appellant's attorney in 
 an unclosed envelope, and the attorney 
 had them in his possession until the day 
 before the hearing* of the appeal, it was 
 dismissed with costs. Burke v. Brown, 9 
 M. R. 305. 
 
 3. Leave to appeal — Striking out ap- 
 peal — County Courts Act, R.S.M., 1892, c. 
 33, ss. 315, 321, 326, 327-^59 Vic. (M), c. 
 3, s. 2— -Queen's Bench Act, 1895, Rule 168 
 (6). 
 
 Held, that under sections 326 and 327 
 of the Couhty Coiu'ts Act, as amended by 
 59 Vic, c. 3, s. 2, a smgle Judge of the 
 Queen's Bench has power, on a motion 
 befoje him under Rule 168 (b), Queen's 
 Bench Act, 1895, to strike out an appeal 
 brought imder section 315, to give the 
 appellant Uberty to proceed with his 
 appeal, notwithstanding the failui e to 
 comply with any requirements of the 
 statute and although the appeal is to the 
 Full Court; and that such leave should be 
 given in this case, as the appellant's 
 . failure to file the affidayit of intention to 
 appeal required by section 317 within ten 
 daysjrom the decision complained of was 
 entirely owing to the neglect of the CoUnty 
 Coult clerk in not notifying the appellant's 
 attorney of the decision when given, and 
 the affidavit was filed the day after the 
 attorney was informed of the decision, 
 and all other steps in the appeal had been 
 regularly taken. The appellant, however, 
 must pay the costs of the motion, as the 
 defendant had made it in good faith and 
 in ignorance of the special circumstances. 
 Held, also, that it was not necessary on 
 entering the appeal with the-Prothonotary 
 to produce to him evidence ■that the" 
 appellant had furnished the security for 
 costs of the appeal required by section 
 321, although it may be a reasonable and 
 \irudent thmg to do. Ahell v. Craig, 12 
 M, R. 81. 
 
 4. Time — Mandamus. 
 Proceedings in appeal from the County 
 
 Court had been taken and an unsigned 
 certificate of the County Judge filed with 
 the Prothonotary within the proper time, 
 under the belief that it had been properly 
 signed. Upon the discovery of the fact, 
 but after the time for filing the certificate, 
 an application was made to the judge to 
 affix his signature. He refused. * 
 
 Held, that the judge was right in so 
 refusing and an application for mandamus 
 was dismissed. Orr v Barrett, 6 M. R. 300. 
 
33 
 
 APPEAL FROM COUNTY COURT. 
 
 34 
 
 IV. Jurisdiction 
 
 Title to land brought in question — 
 
 Property in' sand and gravel on highways — 
 Municipal Act, R. S. M., c. 100, ss. 615, 
 644— Cosis when action fails^or want ojf 
 jurisdiction. 
 
 1. A claim of a municipality for dam- 
 ages for the taking by a railway company 
 of quantities of sand and gravel from 
 alleged highways and allowances for roads 
 in the municipaUty not in its actual 
 possession or occupation, if disputed, 
 raises a question of the title to a corporeal 
 hereditament within ^the meaning of sec- 
 tion 59 of The County Courts Act, R.S.M., 
 c. 33, and the jurisdiction of the County 
 Court to adjudicate on such claim is 
 ousted when such a question of title is 
 bona fide raised, notwithstanding the pro- 
 visions of sections 615 and 644 of The 
 Municipal Act, R.S.M., c. 100, giving the 
 right of possession of such roads to the 
 mumBipallty and power to pass by-laws 
 for preserving or selling timber, trees, 
 stone or gravel on any of such roads. 
 
 2. Under the enactment subsiituted for 
 section 315 of The Covmty Courts Act by 
 59 Vic, c. 3, s. 2, an appeal to this Court 
 lies from the decision of a County Court 
 Judge on the question of jm-isdiction as 
 well as from all other decisions in actions 
 in which the amount in question is twenty 
 dollars or more. 
 
 Fair v. McCrow, (1871) 31 U.C.R. 599, 
 and Portman v. Patterson, (1861) 2i 
 U.C.R. 237, followed. 
 
 3. Although the action in the County 
 Court failed for want of jurisdiction, the 
 plaintiff should be ordered to pay the 
 costs of it urider s. 1 of c. 5 of 1 Edw. VII, 
 and also the costs of the appeal. Munic- 
 ipality of Louise V. C.P.R., 14 M. R. 1. 
 
 V. Judge's Finding of Facts.^ 
 
 1. Questions of fact — Notes of evidence 
 transmitted — Municipality — lAoMlity of. 
 
 The Court of Queen's Bench is a Court 
 of Appeal from the County Courts upon 
 facts as well as law, and it is impossible to 
 infer that there was evidence to support 
 a particular finding of the Court below, 
 unless such appears upon the material 
 transmitted to this Court. 
 
 Plaintiff sued a rmal mupicipaUty for 
 services as a solicitor, but no resolution 
 or by-law of the Council emptojring him 
 was produced, nor did the Coimcil adopt- 
 er derive any benefit from his services. 
 
 Held, that he was not entitled to re- 
 
 cover. Curran v. Rural Municipality of 
 North Norfolk, 8 M. R. 256. 
 
 2. Application for new trial or to 
 
 reverse judgment at trial — Weight of evidence 
 An application by the defendant for a 
 new trial, or to reverse or vary the judg- 
 ment of one County Court Judge in favor 
 of the plaintiff, having been made to 
 another County Court Judge under section 
 
 308 of The County Courts Act, R. S. M., 
 c. 33, the latter ruled that it should not be 
 gi anted unless the verdict appeared- to be 
 unreasonable oi unjust, or a perusal of 
 the evidence showed that the trial Judge 
 must, in arriving at "his decision, have 
 omitted, through oversight, to consider 
 some imdisputed fact, or that some un- 
 disputed fact or some plain piinciple of 
 law apphcable to the facts and favorable 
 to the. defendant could not have been 
 brought to his attention, and the appU- 
 cation was dismissed. Defendant then 
 appealed to a Judge of the Queen's Bench 
 against this decision. 
 
 Held, that the principles thus laid 
 down were correct, and that the appeal 
 should be dismissed, although, in the case 
 of an appeal imder section 315 of the 
 Act, the verdict would have to be reviewed 
 upon the facts in so far as the Court 
 ibove could do so without having the 
 witnesses before it. Smith v. Smyth, 9 
 M. R. 569. 
 
 3. Conflict of evidence — Authority of 
 wife to~T>ledge husband's credit. 
 
 Where there is a conflict of testimony 
 at the trial of an action in the County 
 Court, and there is evidence for the plain- 
 tiff which the Judge may have believed 
 as against the evidence for the defendant, 
 although he gave no reason for his de- 
 cision, his verdict for the plaintiff should 
 not be set aside by a Judge of this Court 
 on appeal because he thinks that the 
 evidence for the plaintiff was unsatis- 
 factory, and that the trial Judge might 
 have decided the case on a wrong principle 
 of law. In such a case the FuU Court, on 
 an appeal from a single Judge, 
 
 Held, that the verdict of the trial 
 Judge should be restored. Robinson v. 
 Taylor, 10 M. R. 33. 
 
 4. Jleview of Evidence— 'Decision of 
 County Court Judge on summons to vary 
 judgment or for a new trial under section 
 
 309 of The County Courts Act, R. S. 
 M., c. 33 — Agent's commission on sale 
 
35 
 
 APPEAL FROM COUNTY COURT 
 
 36 
 
 oj land- — Recovery of commission by another 
 plaintiff in respect of ^ams sale. 
 
 The plaintf! recovered judgment in the 
 Covinty Court for commission on the sale 
 of a parcel of land for defendant at the 
 fuU amount of percentage usually allowed. 
 
 Defendant applied under section 309 of 
 The County Courts Act, R. S. M. c. 33, 
 for "a new trial, or to reverse or vary the 
 judgment, relying on the fact that another 
 real estate agent had recovered a verdict 
 against him for one half the usual com- 
 mission in respect of the same sale, and 
 appealed to the Full Court from the 
 County Court Judge's order dismissing 
 that application. 
 
 Held, that on such an appeal the Court 
 cannot review the original decision on 
 the facts in the same manner as it would 
 do on an appeal direct from the original 
 verdict, and can only consider whether 
 the decisioiL of the County Court Judge 
 on the application that was made was 
 erroneous or not. 
 
 On such an application it is not the 
 duty of the Judge to try the case anew, 
 and he should not disturb the verdict he 
 has rendered unless on reconsideration it 
 appears to him that there has not been 
 evidence on which a jury could have found 
 as he did, or that his verdict has been 
 arrived at through an oversight or mis- 
 conception of the law or the evidence. 
 
 On considering the evidence, and apply- 
 ing these principles the appeal should be 
 dismissed. 
 
 , The fact of the recovery by another 
 plaintiff of commission in respect of the 
 same sale was res inter alios acta, and was 
 not in itself material. 
 
 Smith V.' Smyth, (1894) 9 M. R. 569, 
 followed. 
 
 Douglas v. Cross, 12 M. R. 534. 
 
 5. Review of decision — Undisputed 
 evidence— Accounting for securities received 
 as collateral security. 
 
 A creditor who has received collaterals 
 as security for a debt is bound, after pay- 
 ment of the debt, to return them or 
 account to the debtor for their face value, 
 in the absence of evidence to show that 
 the respective amounts of them could not 
 
 riP Pfvllpptpo. 
 
 DnffU V.' McFall, (1877) 41 U. C. R. 
 313, followed. 
 
 The County Court Judge disallowed 
 certain sums of money which the defeard- 
 ants swore the plaintiff Bank had received 
 on certain collateral securities ' held for 
 them, because their evidence showed that 
 
 these sums had first been received by 
 defendants and they were unable to give 
 dates and particulars of the payments to 
 the Bank, and had no books or memor- 
 anda to support their statements, and he 
 was of opinion that they shduld have 
 given undpubted evidence of the times of 
 receipt and pajonent to the Bank or in 
 some other way brought home to the 
 Bank conclusively the receipt and non- 
 credit of the money, but his verdict was 
 not based on any finding that the de- 
 fendants were unworthy of belief as 
 witnesses. 
 
 Held, that, under the circumstances, 
 it was proper for the Court above to 
 review the finding of the County Court 
 Judge upon the evidence, and that, taking 
 into consideration the Bank's duty to 
 produce or account for the collaterals 
 which it had failed to do, and the pre- 
 sumption to be drawn from such failure, 
 the defendants had sufficiently proved the 
 receipt of said moneys by the Bank and 
 were entitled to judgment for the same. 
 Union Bank v. Elliott, 14 M. R. 187'.' 
 
 VI. Decisions Appealable. 
 
 1. County Courts Act, R. S. M., c. 33, 
 
 ss. 315, 330 — Amendment — Final order or 
 judgment. 
 
 An order of a County Court Judge at 
 the trial of an action giving the plaintiff 
 leave to amend his particulars of claim 
 pursuant to section 330 of The County 
 Courts Act, R. S. M., c. 33, and providing 
 that defendant should have fifteen days 
 •to put in a dispute note to the amended 
 claim, and that, in defa\ilt of such being 
 put in, judgment might be signed for the 
 plaintiff for the fuU amount claimed, is a 
 final order or judgment from which aii 
 appeal may be taken to the Court of 
 Queen's Bench under section 315 of the 
 Act as amended by 59 Vic, c. 3, s. 2. 
 Brenchley v. McLeod, 12 M. R. 647. 
 
 2. Interlocutory order — Setting aside 
 order — Ex parte order — Af^davii of merits. 
 
 Under 54 Vic. c. 2, s. 21, substituted for 
 section 243 of the County Courts Act, 
 1887, there is an appeal to a Judge of 
 the Court of Queen's Bench from any 
 order made by a County Court Judge, 
 final or interlocutory, and whether upon 
 the merits in an action, or upon a mere 
 point of practice. 
 
 A judgment by default, regularly 
 signed, cannot be set aside ex parte, but 
 only -upon notice to the plaintiJEf and an 
 
37 
 
 APPEAL PROM JUDGE'S FINDING OF FACT. 
 
 38 
 
 affidavit of merits, and this nile applies 
 to the County Courts as well as the Court 
 of Queen's Bench. McKay v. Rumble, 
 8 M. R. 86. 
 
 VII. Decisions Not Appealable. 
 
 1. Appeal from order. 
 
 No appeal will he from an ordei of a 
 County Court Judge directing the clerk 
 to sign a judgment which without such 
 order, he should have signed. Barr v. 
 Clark, 5 M. R. 130. 
 
 2. Transfer to Queen's Bench. 
 
 No appeal will he from an order made 
 by a County Court Judge under section 
 86 of the Queen's Bench Act, 1895, trans- 
 ferring an action from that Court to the 
 Court'Of Queen's Bench, after the papers 
 and proceedings have reached the Pro- 
 thonotary, notwithstanding the general 
 and absolute right of appeal apparently 
 given by the 315th section of the County 
 Courts Act, and notwithstanding \ the 
 opinion of the Court above that the order 
 had been improperly made. 
 
 Harris & Sons v. Judge, [1892] 2 Q. B. 
 565, followed. 
 
 Where the Judge of the County Court 
 has to decide in the first instance whether 
 the facts proved bring the matter within 
 his jurisdiction, he has jurisdiction to 
 determine that question and, having de- 
 termined it judicially, his decision caimot 
 be treated as given without jurisdiction. 
 ,Doll V. Howard, 11 M. R. 21. 
 
 Distinguished in Emerson v. Forrester, 
 19 M. R. 665. 
 
 VIII. Sbcubitt. 
 
 1. Security by payment into court. 
 
 Appeal from the County Court. Upon 
 opening of the appeal it was objected that 
 no bond for security for the costs of the 
 appeal had been given. It appeared, 
 however, that security had been given by 
 payment of money into Court. 
 
 The judgment of the Court was given 
 by KiLLAM, J. — ^(After an examination 
 of the statutes, Con. Stat. c. 34, ss. 226, 
 227, 228; 47 Vic. c. 22, s. 23, and 50 Vic. 
 c. 9, ss. 243, 244, 245). "In my opinion, 
 where the necessary sum has been paid 
 into Court, or other security given with 
 the sanction of the County Judge, and he 
 has certified the case to this Court, the 
 giving of a bond is not, under the present 
 Act, a condition precedent to the hearing 
 of the appeal, and, as it is admitted that 
 
 the money has been paid into Court with 
 such sanction in this case, the hearing of 
 the appeal should be proceeded with." 
 Ggrrie v. 'Chester, 5 M. R. 258. 
 
 2. Security for debt. 
 
 By the County Coinrts Act, 1887, the 
 giving security for, or depositing in court, 
 the amount for which judgment has been 
 recovered, and a sum sufficient to cover 
 the probable costs of the appeal, is a con- 
 dition precedent to the right to appeal. 
 
 An objection that such conditions have 
 not been complied with may be taken 
 when the appeal comes on to be heard 
 and may be supported by affidavits; 
 Mahon v. Inkster, 6 M. R. 253. 
 
 3. Time within which security to 
 be given — -Notice of setting dovm. 
 
 This case was tried before the judge of 
 the County Court of Marquette, who 
 entered a verdict for the plaintiff on May 
 12th, 1890. The defendant applied for 
 a reversal of the judgment; and the appli- 
 cation was dismissed on July 3rd, 1890. 
 The defendant served notice of his in- 
 tention to appeal to the Court of Queen's 
 Bench on July 12th, but the security was 
 not perfected until September 10th. 
 
 Held, 1. That no notice of the setting' 
 down of the appeal need be given. 
 
 2. (KiLliAM, J., dissenting). That section 
 243 of the County Courts Act, 1887, 
 taken in connection with the other 
 provisions of the Act relating to Appeals, 
 requires the security to be perfected within 
 ten days after the decision appealed from. 
 
 (Per KiUam, J.) There is no definite 
 limit of time for giving security on appeal 
 fixed by the County Courts Act. Mulvi- 
 hill V. Lachance, 7 M. R. 189. 
 
 See Chattel Mortgage, II, 2. 
 
 — Costs, I, 4. 
 
 — CotTNTT CotraT, II, 1. 
 
 — Landlord and Tenant, II, 2. 
 
 — Practice, III, 2, 3; IV, 1. 
 
 — Principal and Agent, II, G. 
 
 .APPEAL FROM JUDGE'S FINDINQ 
 OP FACT. 
 
 See Appeal from Qountt Court, V. 
 
 — Criminal Law, XV, 1. 
 
 — Evidence, 28. 
 
 — Extradition, 5. 
 
 — Fraudulent Preference, VI, 6. 
 
39 
 
 APPEAL FROM MASTER ON EVIDENCE. 
 
 40 
 
 See License to take Possession or 
 
 Goods. 
 — • Misrepresentation, IV, 1. . 
 — , Negligence, III, 1. 
 ■ ' —= New Trial, 2. 
 
 — Principal and Agent, I, 2, 5; II, C, 
 
 F. " 
 • — Sale op Goods,. IV, 2. 
 
 — ^atutb op Frauds, 7. 
 
 — Weights and Measures Act, 1. 
 
 APPEAL FROM MASTER ON 
 EVIDENCE. 
 
 Foreclosure ordered instead of sale. 
 
 In a mortgage suit the master after 
 hearing evidence ordered a sale instead of 
 a foreclosure, as being more beneficial for 
 infant heirs. Upon appeal. 
 
 Held, that the evidence showed that 
 a ^ale would not realize the plaintiff's 
 claim, and foreclosure was directed. 
 
 A rule to govern appeals from the 
 master upon questions of fact approved. 
 Landed Banking & Loan Co. v. Anderson, 
 3 M. R. 270. 
 
 APPEAL FROM N. W. T. 
 
 Objections to regularity of appeal — 
 
 Value of subject mattejr — Fraudulent Con- 
 veyance. 
 
 Held, 1. An objection of irregularity in 
 the proceedings leading up to an appeal 
 from the N. W. T. cannot be taken at the 
 argument of the appeal. 
 
 2. In determining the value of the sub- 
 ject matter in dispute (upon which the 
 
 -right of appeal depends), the proper course 
 is to look at the judgment as to the extent 
 to which it affects the interest of the 
 party prejudiced by it and seeking to 
 relieve himself from it by appeal. 
 
 3. Upon the evidence,- that a trans- 
 action attacked as fraudulent against 
 creditors was valid. Steele v. Ramsay—' 
 Brati Claimant, 3 M. R. 305. 
 
 APPEAL FROM ORDER. 
 
 > 1. Acting on order — Preliminary ob- 
 jection. 
 
 A garnishee attaching order- having 
 been issued in this case, the defendants 
 moved to rescind the order upon the 
 
 ground of irregularity and of misrepre- 
 sentation. 
 
 Bain, J., made an order amending the 
 attaching order by reducing the amount 
 attached from $11,000 to S3,600. 
 
 The applicants took out the order, 
 served a copy of it upon the plaintiffs, 
 and also a copy upon the attorneys who 
 usually acted for the garnishees, but who 
 had not acted for them as attorneys in 
 connection with this case. 
 
 The applicants then.appUed to vary the 
 ord«r amending the attaching order, 
 claiming to have it set aside altogether. 
 
 Held, that the applicants having acted 
 upon the order could not appeal from it. 
 Royal City Pinning Mills v. Woods. C. 
 P. R. (Garnishees.) 6 M. R. 62. 
 
 2. Acting on order — Right of, lost by 
 acting on order appealed from. 
 
 Appeal from order directing the trial 
 of an issue between a garnishing creditor 
 and an assignee of the debtor as to, their 
 rights to a fund in court. The issue had 
 been drawn up and deUvered to the 
 appellant and he had returned it. 
 
 Held, that, by thus acting under the 
 order, he had abandoned his right to 
 appeal against it. 
 
 Royal City Planing Mills Co. v. Woods, 
 6 M. R. 62, followed. 
 
 French v. Martin, 13 C. L. T. Occ. N. 
 159. 
 
 3. Compliance with part of order. 
 
 An order appealed from permitted the 
 defendant to amend a' paragraph of his 
 defence within six days, in default of 
 which it was to be struck out, and the 
 defendant availed himself of the privilege 
 of amending that paragraph. " 
 
 Held, that, by compliance with such 
 part of the order, he had not precluded 
 himself from appeaUng against another 
 part of the order. Gowenlock v. Ferry, 11 
 M. R. 257. 
 
 4. Leave to appeal after time elapsed 
 
 — Mistake of attorney — Evidence to set 
 aside garnishee order — Affidavit on inform- 
 ation and belief not sufficient. 
 
 An appeal by the plaintiff from the 
 order of the Chiei Justice made in March, 
 1894, setting aside a garnishee order 
 obtained by the plaintiff herein, (see 9 M. 
 R. 534) was set down for hearing before 
 the Full Court one day too late, and was 
 therefore struck out, leaving the plaintiff 
 to make a substantive application unde- 
 
41 
 
 APPEAL FROM REFEREE. 
 
 42 
 
 rule 66 for an extension of time for entering 
 the appe^. 
 
 Such an application was then made 
 supported by the aflBdavit of the plaintiff's 
 attorney, accounting for the delay through 
 a misapprehension and mistake made in 
 good faith, when the Court allowed the 
 appeal to be set down within two days on 
 payment of costs. 
 
 On the argument of the appeal it 
 appeared that the garnishee order had 
 been set aside on the strength of an 
 affidavit of the partner of the defendant's 
 attorney based on information and beUef. 
 
 Hdd, following Gilbert v.Endean, 9 Ch. 
 D., 259, that, as the application to set 
 aside the -garnishee order was one that 
 affected and disposed of the rights of the 
 parties and was not Aerely interlocutory, 
 it should not be granted, on the material 
 put in, which was mere hearsay evidence, 
 and at best of no more weight than the 
 evidence on which the original order was 
 made, and that the appeal should be 
 allowed with costs. Braun y. Davis. 
 Northern Assurance Co., Garnishees, 9 M. 
 R. 539. 
 
 6. Notice of appeal — Prohibition — 
 County Court — -Serving County Court Judge 
 with notice of appeal. 
 
 In appeaUng from the decision of a 
 single Judge discharging a rule nisi for a 
 writ of prohibition, it is necessary to serve 
 the County Court Judge, as well as the 
 
 glaintiff, with notice of the ap 
 ibbins v. Chadmck, 8 M. -R. 213. 
 
 6. Winding-IJp Act, R.S.C. 1906, c. 
 144, ss. 101, 131 — Leave to appeal from de- 
 cision of judge under Act-— Order staying 
 proceedings in action by liquidator against 
 contributory. 
 
 An order of a Judge made under section 
 131 of the Winding-up Act, R.S.C. 1906, 
 c. 144, staying proceedings in an action by 
 the liquidator of a company being wound 
 up against-a contributory, does not involve 
 future rights within the meaning of section 
 131 of the Act, neither could it be said 
 that the amount involved in an appeal by 
 a shareholder from such an order exceeded 
 five hundred dollars, and, therefore, as it 
 was conceded that the order was not one 
 that was likely to affect other cases of a 
 similar nature in the winding-up pro- 
 ceedings, leave should not be given, under 
 section 101 of the Act, to appeal from 
 it. Re London Fence Company. (No. 2) 
 21 M.R. 100. 
 
 See Attachment of the Person, 1. 
 
 — Conviction, 1. 
 
 — Criminai, Law, XIII, 1.' 
 
 — Election Petition, VI, 1. 
 
 — Practice, II, 2. 
 
 — Production op Documents, 7. 
 
 — Security for Costs, I, 2. 
 
 APPEAL FROM REFEREE. 
 
 See Jury Trial, I, 1. 
 — Practice, III, 4; XX, B, 3, 7; 
 XXVIII, 24. 
 
 APPEAL FROM SINGLE JUDGE. 
 
 See Real Property Act, I, 7. 
 
 — Rectification of Deed, 1. 
 
 — Surrogate Court. 
 
 APPEAL FROM SUMMARY 
 CONVICTION. 
 
 See Criminal Law, XVII, 10. 
 
 — Liquor License Act, 7. 
 
 — Summary Conviction, 2. 
 
 APPEAL FROM VERDICT OF JURY. 
 
 On weight of evidence — Workmen's 
 compensation for injuries. 
 
 Although the Court, to which an appeal 
 is made from the verdict of a jury in an 
 action brought by a workman against his 
 employer for injuries alleged to have been 
 caused by the employer's negligence, feels, 
 grave doubt as to whether the evidence 
 was such as to justify reasonable men in 
 rendering a verdict for the plaintiff upon 
 it and -whether the jury were not in- 
 fluenced by sympathy irrespective of the 
 weight of evidence, yet, in the present 
 state of the law as laid down in the leading 
 cases, the appeal must be dismissed if 
 there was, in support of the verdict, any 
 evidence that the Court could not say 
 the jury ought not to have believed, 
 however slight, and however contradicted 
 by apparently more reUable testimony, it 
 may have been. Mclntyre v. Holliday, 
 18 M. R. 535. 
 
43 
 
 APPEAL IN CRIMINAL CASES.. 
 
 44 
 
 APPEAL IN CRIMINAL CASES. 
 
 See Chiminal Law, XVII, 1. 
 
 APPEAL FENDING. 
 
 See Staying Pkoceedings, I, 1, 6. 
 — Stjmmakt Judgment, III, 1.' 
 
 APPEAL TO COURT OF APPEAL, 
 
 See Security pok Costs, II, 1. 
 
 APPEAL TO PRIVY COUNCIL. 
 
 1. Decisions appealable— Opinion of 
 
 Court rendered under R.S.M., 1892, c. 28, 
 not a judgment — Amount in controversy — 
 Imperial Order in Council of 26th Novem- 
 ber, 1892, relating to appeals from the 
 Court of Queen's Bench for Manitoba — 
 Leave to Appeal. 
 
 Held, following Union Colliery Co. v. 
 Attorney-General ^British Columbia, (1897) 
 27 S.C.R. 637, that the opinion of the 
 Court (reported 13 M. R. 239,) rendered 
 under R. S. M., 1892, c. 28, upon a con- 
 stitutional question submitted by an 
 Order of the Lieutenant-Governor in 
 Counqil, was not a judgment, decree, 
 order or sentence within the meaning of 
 the Imperial Order in Council of 26th 
 November, 1892, relating to appeals from 
 the Court of Queen's Bench for Manitoba, 
 and that such Court has no jtu-isdiction 
 to grant an application for leave to appeal 
 to His Majesty in Council under said 
 Order from such an opinion. 
 
 Held, also, that, although it was shown 
 that the enforcement of The Liquor Act 
 would deprive the Province of a revenue 
 far exceeding ^800 per .annum, and 
 would prejudicially affect the very 
 large investments of persons engaged in 
 the liquor traffic, it could hot be said that 
 any questions respecting property or civil 
 rights to the value of ^300 were involved 
 in the decision sought to be appealed from. 
 Re Liquor Act, 13 M. R. 323. 
 
 2. Leave to appeal. 
 
 The Court of Queen's Bench for Mani- 
 toba is empowered by the Imperial Order 
 
 in Council of the 26th November, 1892, 
 to grant leave to appeal direct to the Privy 
 Council, provided the application is made 
 within f omteen days from the pronouncing 
 of its order, but has no jurisdiction to 
 entertain such an application if not made 
 within that time: Flint v. Walker, 5 Moo. 
 P. C. C. 179, followed. Betemeyer v. Ober- 
 muller, 2 Moo. P. C. C. 93, distinguished. 
 Gray v. Manitoba & North Western i?y., 11 
 M. R. 261. 
 
 APPEAL TO SUPREME COURT. 
 
 1. Consolidating two appeals in one. 
 
 Under section 73 of the Supreme Comt 
 Act and Rules 8 and 14 of the Supreme 
 Court,. 1907, an order may be made con- 
 solidating two appeals to the Supreme 
 Court of Canada from the judgment of - 
 the Court of Appeal for Manitoba, upon 
 separate appeals to the Court of Appeal 
 from orders of a single Judge' made in the 
 same case, and giving the plaintiff leave to 
 print one appeal case for the Supreme 
 Court and directing that the judgment °^ 
 the Court of Appeal upon both such 
 appeals should be taken as one judgment 
 on one appeal for the purpose of the appeal 
 to the Supreme Court. Emperor of Russia 
 V. Proskouriakoff, 18 M. R. 143. 
 
 2. Extending time for appeal. 
 
 In support of a summons to extend J;he 
 time for perfecting security for costs upon 
 an appeal to the Supreme Court, an 
 affidavit was filed showing that, of the two 
 defendants appealing, one resided in 
 Chicago and the other near Pilot Mound; 
 that the trespass complained of had 
 ruined the plaintiff's cretht; and "on that 
 account the delay in obtaining the required 
 security can be largely accounted for." 
 
 Held, That no case had been made for 
 an extension of time. 
 
 The principles appheable to such 
 motions discussed. 
 
 Residence of the appellant out of the 
 jurisdiction and absence of damage, by 
 the delay to the respondent, are matters 
 for consideration upon such an apphcation. 
 Dederick v. Ashdovm, 4 M. R. 349. 
 
 3. Extending time to appeal. 
 
 Time for appeal to the Supreme Court 
 was extended where there had been only 
 three days default; where no sittings had 
 been lost, and where such efforts to obtain 
 secin-ity had been made that negUgence 
 
45 
 
 APPEAL UPON FACT. 
 
 46 
 
 could not be reasonably charged. McRae 
 V. Corbett, 6 M. R. 536. 
 
 4. Final judgment — S-pecially indorsed 
 writ — Summary jvdgmsnt. 
 
 The order of a Judge in Chambers that 
 plaintiff should be at hberty to sign final 
 judgment in an action commenced by a 
 writ of summons specially indorsed, al- 
 though aflBrmed on appeal to the , Full 
 Court, is not a final judgment within the 
 meaning of the Supreme Court Act, and 
 no appeal to the Supreme Court will lie 
 therefrom. 
 
 Municipality of Morris v. London & 
 Canadian Loan & Agency Co., 12 C.L.T. 
 Occ. N. 68. 
 
 6. Leave to appeal — Special circum- 
 stances — Supreme Court Act, s. 71 — Dis- 
 covery of new evidence 
 
 The plaintiff had judgment in his favor 
 which was afiBirmed by this Court on 
 appeal. During the reference to the 
 Master to take the account ordered, the 
 defendant for the first time noticed among 
 the documents, which the plaintiff had 
 produced before ana at the trial, an 
 affidavit which 'the plaintiff had made 
 before the commencement of the action 
 in which he had made a statement appar- 
 ently at variance with his evidence at the 
 trial. The trial Judge's attention had- 
 been called to this affidavit at the trial, 
 but he had not referred to it in his judg- 
 ment, and it was not considered on the 
 hearing of the appeal before this Court. 
 
 Held, Cameron, J.A. dissenting, that, 
 although this could not be treated as a 
 discovery of new evidence warranting a 
 new trial, yet it was such a special cir- 
 cimstance that, under section 71 of the 
 Supreme Court Act, this Court might 
 properly grant the defendant leave to 
 appeal to the Supreme Court, after the 
 lapse of time allowed for an appeal as of 
 right. Fisher v. Jukes, 20 M. R. 331. 
 
 6. Order for commitment of judg- 
 ment debtor — Final judgment — Manitoba 
 King's Bench Rules 748, 755 — "Matter or 
 judicial proceeding" — Supreme Court Act, 
 B. 2 (e). 
 
 An order of committal against a judg- 
 ment debtor, under the Manitoba King's 
 Bench Rule 755, for contempt in refusing 
 to make satisfactorjr answers on examin- 
 ation for discovery is not a "matter" or 
 "judicial proceeding" within the meaning 
 of sub-section (e) of section 2 of the 
 
 Supreme Court Act, but merely an ancil- 
 lary proceeding by which the judgment 
 creditor is authorized to obtain executiOT 
 of his judgment, and no appeal lies in 
 respect thereof to the Supreme Court of 
 Canada. Danjou v. Marquis, 3 S.C.R. 
 258, referred to. 
 
 Appeal quashed with costs. Bateman v. 
 Svensson, 42 S.C.R. 146. 
 
 See Pbactice, III, 5. 
 
 — SeOTJRITY FOB COBTB, II, 2. 
 
 APPEAL UPON FACT. 
 
 See Cbiminal Law, XVII, 18. 
 
 APPOINTMENT OF SCRUTINEERS. 
 
 See Local Option By-Law, II, 1. 
 
 APPORTIONMENT OF LOSSES. 
 
 See Administration, 1. 
 
 APPROACHES. 
 
 iSfee Railways, IV, 1. 
 
 APPROPRIATION OF PAYMENTS. 
 
 See Bills and Notes, VIII, 13. 
 — • Chose in Action, 1.' 
 — ■ Company, IV, 3. 
 
 — Shbkit'f, 5. 
 
 — • Weights and Measures Act, 1. 
 
 — Will, I, 1. 
 
 APPROVAL OF PLANS. 
 
 See Municipality, I, 1. 
 
 APPROVAL OF SECURITY. 
 
 See Security for Costs, I, 4. 
 
47 
 
 ARBITRATION AND AWARD. 
 
 48 
 
 ARBITRATION AND AWARD. 
 
 1. Agreement to refer disputes — 
 
 Stay of proceedings in action, — Application 
 for stay of proceedings, time when it must 
 be made — -Common Law Procedure Act, 
 1854, s. 11. 
 
 An applisation under section 11 of 
 "The Common Law Procedure Act, 1854," 
 to stay proceedings in an action for "the 
 purpose of compelling the plaintiff to 
 carry, out an agreement to submit the 
 matters in dispute to arbitration, must, 
 under the practice now in force in Mani- 
 toba, be made before the filing of the 
 statement of defence. Northern Elevator 
 Co. V. McLennan, 14 M. R. 147. 
 
 2. Award and Contemporaneous 
 Memorandum — Liability of agent — Sign- 
 ing award. 
 
 A contract was expressed to be made 
 between "D., of the city of Toronto, of 
 the first pEirt, and H., Superintendent, of 
 the city of Winnipeg, Manitoba, of the 
 second part." It went on to say: — ■ 
 
 "The said party of the first part, in 
 consideration of the agreement of the said 
 party of the second part hereinafter con- 
 tained, hei-eby agrees to build, construct, 
 and set up complete in the city of Winni- 
 peg gas plant of wrought and cast ironfor 
 a Gas Works there, as follows." Then, 
 after a detailed statement of the articles 
 to be', supplied, "In consideration 6f the 
 agreement 'herein set forth and stipulated 
 to be performed by the party of the first 
 part, the said party of the second part ' 
 agrees to pay' to the said party of Ihe 
 first part the ftiU sum of $12,500 for such 
 iton gas plant as hereinbefore described, 
 to be paid as follows," and then the time 
 and mode of payment were set^ut. 
 
 H. appended to his signature the 
 words: — "Superintendent for Building Gas 
 Works, at Winnipeg for W. Merrick, of 
 Oswego, N. Y., and others." 
 
 Held, that H. was personally liable 
 upon the contract. 
 
 An arbitrator enclosed in an envelope 
 his award and a memo, containing an 
 exhaustive review of the cases bearing on 
 the question decided by him, and showing 
 that he had taken an erroneous view of 
 the law. The envelope was marked 
 "Doig V. Holley, Award, Arbitrator's fee, 
 $100." On the memo, was endorsed: — 
 "This memo., after perusal by the'' party 
 takiDg up the award, is to be given to the 
 opposite sohcitor, who, after perusal, is 
 to return it to me. W. L." 
 
 Held, that, when the grounds of the 
 arbitrator's decision appear in some con- 
 temporaneous document aelivered with 
 the award, the Court can look at it, and 
 will entertain an application to set aside 
 the award as founded upon an erroneous 
 view of the law. / 
 
 Upon the argument of a rule to set 
 aside an award, it was objected that the 
 motion paper on which the rule was 
 obtained, maldng; the order of reference 
 a rule of court, was not signed by 
 Counsel. 
 
 Held, that the objection, if a good one, 
 should be raised by some proceeding to- 
 set aside or discharge the rule. 
 
 It was further objected that there. was 
 no evidence proving the execution of the 
 award. The order required that the 
 award should be in writing. ■> 
 
 Held, that it was not necessary that 
 the award should be signed. Doig v. 
 Holley i 1 M. R. 61. 
 
 3. Bias in arbitrator — Interlocutory 
 injunction — Evidence — Affidavit — Employ - 
 ment of arbitrator by party. 
 
 Although for the purposes of an inter- 
 locutory injunction there is not required 
 to be the clear evidence necessary to 
 support the case at the hearing, yet there 
 must be some evidence. 
 
 The railway commissioner being de- 
 sirous of expropriating lands of the plain- 
 tiff, arbitrators were appointed, C. (one 
 of them) being appointed by the other 
 two. Contemporaneously with the pro- 
 gress of the arbitration, C. was engaged 
 in auditing certain municipal books at the 
 request of the municipal commissioner. 
 For this< work he was paid by the munici- 
 pal commissioner, who intended to reim- 
 burse himself out of the legislative grant 
 to the municipality. The railway com- 
 missioner was a Minister of the Crown. 
 The municipal commissioner was a cor- 
 poration sole, and also a Minister of the 
 Crown. The moneys he disbursed were 
 those of the municipalities, and not those 
 of the Crown. The two arbitrators who 
 made the award, (one of them being C.,) ' 
 swore that they were not influenced by 
 C's. employment. 
 
 Held, "That it did not appear that C. 
 might have been biassed or affected in 
 any degree by his employment; and that , 
 an interlocutory injunction restraining the 
 taxation of costs under the award should 
 not be granted. 
 
 An aflBdavit alleging "That the facts 
 stated in the bill of complaint herein, are 
 
49 
 
 ARBITRATION AND AWARD. 
 
 50 
 
 true in substance and in fact and to the 
 best of my knowledge and belief," is 
 wholly insufficient to form the ground of 
 an interlocutory injunction. _ Rowand v. 
 Railway Commissioner, 6 M. R. 401. 
 
 4. Bias in arbitrator — Previous opin- 
 ion for one party. 
 
 Under section 31 of The Railway Act 
 (44 Vic. Man. c. 27,) a person appointed 
 arbitrator (for the settlement of the value 
 of lands taken) "shall not be disqualified 
 by reason that he is professionally em- 
 ployed by either party, or that he has 
 previously expressed an opinion as to the 
 amount of compensation." 
 
 An objection to an arbitrator that he 
 
 had previously given a valuation to one 
 
 party and would naturally be biased in 
 
 favor of the amount he had fixed, 
 
 . Held, Untenable ill view of the statute. 
 
 The section is not limited to arbitrators 
 appointed' by a judge. Nicolson and 
 Re Railway Commissioner, 6 M. R. 419. 
 
 5. Bias in arbitrator— SeMini/ Aside — 
 Prejudiced Arbitrator. 
 
 -The Government expropriated certain 
 lands of R. for the right of way of the 
 Red River Valley Railway. R. having 
 refused the amount of compensation 
 offered by the Government, each party 
 appointed- an arbitrator, and these two 
 selected C. as a third arbitrator. C. had 
 been a short time previously employed by 
 the Government to v-alue lands of a 
 similar character and adjacent to those in 
 question, and also to audit the books and 
 accounts cf a Rural Municipality, but 
 both these employments had ceased before 
 C's. appointment as third arbitrator. 
 Sometime after the award was made C. 
 was appointed to an office under the 
 Government. An award was made giving 
 R. the same compensation as the Govern- 
 ment had originally offered. This award 
 was signed by the arbitrator appointed by 
 the Government and by C. R's arbi- 
 trator refused to sign alleging that the 
 amount awarded was grossly inadequate. 
 R. filed his bill to have the award set 
 aside. 
 
 Held, (Reversing the decision of Bain, 
 J.) 
 
 1. That C's connection with the Gov- 
 ernmentythe employments having ceased 
 before his appointment as arbitrator, 
 could not be treated as such a disquali- 
 fication as would justify the setting aside 
 of the award. 
 
 2. That inadequacy in the amquiit 
 awarded could not in itself be sufficient 
 ground for setting aside the award, rl)ut 
 might be evidence of misconduct ori tiie 
 part of the arbitraturs. 
 
 3. That the amount awarded in this 
 case could not be regarded as so grossly 
 inadequate as to fui-nish evidence of 
 corrupt and fraudulent conduct. Rowand 
 V. Martin, 7 M. R. 160. 
 
 6. Compensation for lands injur- 
 iously affected — Prospective value. . 
 
 The compensati6n allowed to owners, 
 for lands expropriated by railways under 
 the Manitoba statutes, must be limited to 
 compensatiodf for injury to land, or to an 
 estate or interest in land. 
 
 N. owned lands on the bank of the 
 Red River, on which he can'ied on an ice 
 business. The ice was hauled from the 
 river by teams and stored in buildings on 
 ;1;he land. A railway expropriated a 
 portion of the lands immediately adjoining 
 the river, so that the railway passed 
 between the remaining portion and the 
 river. The arbitrators awarded compen- 
 sation, in addition to- the value of the land 
 and damage to buildings, for a contrivance 
 called an endless chain, which N. intended 
 to use for hauling ice from the river to 
 the storage buildmgs, but would be pre- 
 vented from using by reason of the railway 
 passing between the buildings and^ the 
 river. This contrivance was not in use 
 when the land was taken. 
 
 On appeal from the award, 
 
 Held, That the arbitrators should 
 have considered the land as it stood when 
 taken by the railway, and not have 
 allowed any additional compensation, be- 
 cause the owners might, at some future 
 time, desiie to use appliances which the 
 railway would interfere with. Nicolson 
 & Railway Commissioner, Re, 7 M.R. 400. 
 
 7. Finality of award — Jurisdiction — 
 Enforcing award against non-resident of 
 Province — Service of notice of motion out of 
 jurisdiction — King's Bench Act, Rules 201, 
 773 — Reservation of matter for svhsequent 
 adjudication by arbitrator. 
 
 The respondent, who was not a resident 
 of the Province, joined with the applicant 
 in referring their disputes to an arbitrator 
 residing in Winnipeg, agreed to abide by 
 his award and afterwards submitted his 
 case to the arbitrator. Having refused to 
 obey the award, the applicant served him 
 out of the jurisdiction with a notice of 
 motion, under 'Rule 773 of the King's 
 
51 
 
 ARBITRATION AND AWARD. 
 
 52 
 
 Bench Act, to have the award made a 
 judgment of the Court. 
 
 Sfld, by Prendergast, J., in the Court 
 
 r.^i^low, that the service was authorized 
 
 >'both by Rule 773 and alsp by Rule '201 
 
 and the Court had jurisdiction to make 
 
 the order asked for. 
 
 Rasch V. Wulfert, [1904] 1 K. B. 118, 
 distinguished. 
 
 In making his award, the arbitrator 
 found against the respondent in respect 
 of his claim to be credited with th6 amount 
 of a cheque for $800, but reserved the 
 right to allow that claim in reduction of 
 the amount,, $2630.09, awarded to the 
 applicant, provided the respondent would 
 produce proof of same satisfactory to the 
 ai'bitrator within thirty days. The res- 
 pondent made no attempt to avail himself 
 of the opportunity thus given. 
 
 Held, on appeal from Prendergast, J., 
 , that, the arbitrator having reserved the 
 right to himself to allow the apphcant a 
 fiu:ther sum at the expiration of thirty 
 day?, there was no finality in the award 
 and it should not have been made a 
 judgment of the Coxu:t for the full amount 
 including the $800. 
 
 An award which is bad in part can only 
 be held good as to the remainder of it 
 when the bad part is clearly separable 
 from the good. 
 
 Stone V. PhilKpps, (1837) 4 Bing. N. C. 
 37, followed. 
 
 Held, however, that, if the apphcant 
 would elect to accept the award as one 
 for a sum excluding the $800 in full of aU 
 the matters referred, the judginent al- 
 ready "entered >for $2630.09 might be 
 reduced to $1830.09; but, if he would not, 
 the judgment should be set aside and the 
 motion to, make the award a judgment of 
 the Court dismissed. Graoes and Tentler, 
 Be, 21 M. R. 417. 
 
 8. Fire Insurance Company— Ew- 
 
 dence — Estoppel — Interpleader — Prac- 
 tice — Garnishment. 
 
 The plaintiff, having suffered a loss by 
 fire insured against by defendants, was 
 sued by creditors who issued garnishing 
 orders attaching the insurance moneys, 
 which were also claimed by other parties. 
 Defendants then applied, under section 13 
 of the Garnishment Act, R. S. M., c. 64, 
 to pay into Court the amount which had 
 been awarded to the plaintiff for her total 
 loss by an arbitration between her • and 
 the defendants, which they claimed was 
 binding. On this appUcation the plaintiff 
 appeared and disputed the award that 
 
 had been made, and claimed the full 
 amount of the poMoies. Issues were then 
 directed to be tried between the plaintiff 
 and the defendants, the question for de- 
 cision being, whether there was any 
 further debt due or owing from defendants 
 to plaintiff over and above the amount 
 fiji:ed on the arbitration. 
 
 All the policies contained provisions 
 enabling defendants to insist on the 
 amount of loss being ascertained by arbi- 
 tration, and the plaintiff entered into a 
 special agreement with all the companies 
 interested for an arbitration to settle the 
 amount pf liability. One arbitrator was 
 chosen by each, and named in the agree- 
 ment, and the two arbitrators were to 
 choose an umpire if necessary. They did 
 so, and an award was arrived at which 
 was signed by the arbitrator appointed on 
 behalf of the defendants, and the umpire. 
 
 The umpire was not a person skilled in 
 the values of the particular goods insured, 
 and the arbitrators availed themselves of 
 the services of a Mr. Redmond in settUng i 
 the values of the goods destroyed, and 
 the amount of damage to be allowed upon 
 goods not wholly destroyed. 
 
 Held, (1) That the orders for the trial 
 of "the issues had been erroneously, made, 
 and no issue should have been directed to 
 be tried, except as between the attaching 
 creditors and the claimants and the 
 garnishees, and that the primary debtor 
 should have been left to pursue the 
 ordinary remedies to recover what was due. 
 
 (2) That by taldng the issues ordered 
 to be tried, the companies could not be 
 said to haTO waived the award, and were 
 not estopped from claiming that it was 
 binding. 
 
 (3) That no evidence of the loss, inde- 
 pendently of the award, should be received. 
 
 (4) That the "award, was not rendered 
 invalid by the fact that Mr. Redmond's 
 valuations were adopted, and that none 
 of the objections urged against it were 
 sufficient to require the Court to investi- 
 gate the amount of the loss independently. 
 
 Whitmore v. Smith, 5 H. & -N. 824, 
 7 H. & N. 508, followed. 
 
 Rogers v. Commercial Union Ass. Co. 
 Rogers v. London & Lancashire Ins. Co. 
 Rogers v. London, Liverpool & Globe Ins. 
 Co. Rogers v. Phoenix Ins. Co., 10 M. 
 R..667. 
 
 9. Irregularities — Waiver — Time. 
 
 Certain objections were taken to the 
 regularity of certain expropriation pro- 
 ceedings. After the award the City did 
 
53 
 
 ARBITRATION AND AWARD. 
 
 54 
 
 not repudiate it, but proceeded to nego- 
 tiate with the plaintiff upon the basis of 
 the amount awarded, and a^eed to give 
 certain land for a portion of the money; 
 the City afterwards paid $12,000 in 
 pursuance of this agreement, and paid all 
 the costs of the arbitration. 
 
 Held, that all irregularities had been 
 waived. 
 
 The fact that the award had not been 
 sanctioned by a Judge, as required by 
 the statute, would form no groundtof objec- 
 tion, for it was the duty of the City to 
 have that done. 
 
 It did not appear that the Commis- 
 
 ^ doners had been sworn. Held, that 
 
 this would be assumed to have been done. 
 
 The award was not made within the 
 time specified in the original order, but it 
 recited a further order extending the time. 
 
 Hdd, that, the original of this further 
 order being in possession of the defendants, 
 the award was sufficient secondary evi- 
 dence of it. Wright v. Winnipeg, 3 M. 
 R. 349. See i M. R. 46. 
 
 10. Setting aside award— "7?ij;gM%" 
 
 inserted in a ride. 
 
 F. & B. agreed to an arbitration. The 
 following was one of_the provisions: "It 
 is distinctly agreed that each party hereto 
 shall at once obey the award, and shall 
 not appeal frora or move against the same, 
 or in any way resist the same; * * * * 
 and no resort shall be had to any legal or 
 equitable proceedings to resist or alter 
 the same." 
 
 On an application by rule nisi to set 
 aside the award for misconduct of the 
 arbitrators, and on other grounds. 
 
 Held, by the Full Court, that although, 
 under the provisions of the agreement, the 
 parties were prevented from having the 
 submission made a rule of court under C. 
 L. P. Act, 1854, s. 17, yet, as a bill could 
 have been filed in equity to impeach the 
 awaid, the rule might be amended by 
 adding, after the style of couit, the words 
 "In equity," after which relief could be 
 granted. Fisher and Brown,Re., 1 M. R. 
 116., 
 
 11. Setting aside amaxA— Building 
 contract — Making award a jndgment — 
 King's Bench Act, Rules 75i-7iai— Arbi- 
 trators delegating their duty to third person. 
 
 Plaintiff's action was to recover a 
 balance on a building contract, alleging 
 completion. Defendant denied, comple- 
 tion and counterclaimed against plaintiff 
 on several grounds. \ 
 
 After the record had been entered for 
 trial the parties entered into an agreement 
 to refer to two named arbitrators and a 
 third one to be appointed by the latter 
 "all matters whatsoever in dispute" 
 between them. 
 
 The arbitrators thus appointed having 
 made their award in plaintiff's favor, he 
 moved, under Rales 764-764 of the King's 
 Bench Act, to have the award made a 
 judgment of the court. 
 
 Held, dismissing the motion with costs, 
 that the award was bad on the following 
 grounds: — 
 
 1. It showed on its face that the work 
 under the plaintiff's contract had not been 
 completed, so that the plaintiff was not 
 entitled to recover anjrthing at all in 
 this action. 
 
 2. From evidence taken on the hearing 
 of the motion it was clear that the arbi- 
 trators had not taken into consideration 
 "all matters whatsoever in dispute," but 
 had failed to deal with a number of such 
 matters which had been brought to their 
 attention. 
 
 Bowes v.Femie, (1838) 4 My. & Cr.150; 
 Wilkinson v. Page, (1841) 1 Hare, 276; 
 and Russell on Arbitration, •8th ed. p. 
 172, followed. 
 
 3. The arbitrators had attempted to 
 delegate to another person (unascertained) 
 their authority to decide whether the sum 
 of $110, part of the amount . awarded, 
 should or should not be paid: see Tandy 
 V. Tandy, (1840) 9 Dowl. 1044. Blaheston 
 V. Wilson, 14 M. R. 271. 
 
 12. Setting aside award— PZeodi?io — 
 
 Prayetrfar general relief — King'sBench Act, 
 Rules 773-775—9 & in Wm. III., c. 15. 
 
 1. When the plaintiff, in answer to the 
 defence of an award covering the amount 
 of his claim, amends his statement of 
 claim by setting up facts which, if true, 
 would entitle him to ask specifically to, 
 have the award set aside, the statement of 
 claim is good on demurrer, if it contains 
 a prayer for general rehef, although it 
 does not ask for that specific relief. 
 
 Dictum of KiLLAM, J., in Rogers v. 
 Commercial Union Ass. Co., (1885) 10 
 M. R. at pp. 675, 676, and notes at p. 
 625 of Bvllen & Leake, 5th ed. followed. 
 
 2. This Court has jurisdiction over 
 awards whether or not they axe awards 
 to which the provisions of 9 & 10 Wm. 
 Ill, e. 15 apply. 
 
 &mUh V. WhUmme, (1864) 2 De G. J. 
 & S. 297, followed. 
 
'55 
 
 ARBITRATOR'S FEES. 
 
 56 
 
 . 3. iPer Mathers, J. jaule 773 of the 
 king's Bench Act provides a code of 
 propedure only for the enforcement of 
 ift'wards, and R,ule 774, which leads, "The 
 former practice with respect to awards 
 shall not be abolished, but the same shall 
 only be followed by special leave of the 
 Court or Judge," should be interpreted as 
 if it read, "The former practice relating to 
 the enforcement of awards," &c. Jokan- 
 nesson v. Galbraiih, 16 M. R. 138. 
 
 13. Time for making award — Award 
 
 not made within the time limited — When 
 
 arbitrator functus offida — Winnipeg Char- 
 
 ' ter, 1-2-Edw. VII, c. 77, ss. 802, 805, 812. 
 
 An arbitrator is functus officio as soon 
 as he has made an award or as soon as 
 the time fixed, whether by consent oi 
 otherwise, within which he shall make his 
 award has expired. ■ 
 
 Ruthven v. Rvihven, (1847) 8. U. C. R; 
 12, followed. 
 
 A previous arbitration to settle the 
 same matter having failed by leason of 
 10 award having been made, Bennetto 
 took proceedings under The Winnipeg 
 Charter for a fresh arbitration and applied 
 to have an. arbitrator appointed by the 
 County Court Judge to act on behalf of 
 the City, as the City had failed to make a 
 fresh appointment relying on the formei 
 appointment which had not been cancelled. 
 
 Held, that a new appointment was 
 necessary and the City was not entitled 
 to an order prohibiting the County Court 
 Judge from proceeding to fiiake it. Ben- 
 netto V. Winnipeg, 18 M. R. 100. 
 
 5ec Costs, XIII, 4. 
 
 — Duress, 1. 
 
 — Expropriation of Land, 1, 3. 
 — ■ Fire Insurance, 5. 
 
 — Municipality, III, 3, 4; VIII, 3. 
 -— Public Parks Act. 
 
 — Railways, I, V, 2, 3, 4. 
 
 - — Sale of Land for Taxes, X, 5. 
 
 — School Districts. 
 
 ARBITRATOR'S FEES. 
 See Costs, XIII, 4. 
 
 ARREST. 
 
 See False Imprisonment, 1, 2. 
 — Municipality, II, 1. 
 
 ARREST WITHOUT WARRANT, 
 
 See Criminal Law, IX, 2; XVII, 2.. 
 
 ASSAULT. 
 
 Malicious prosecution. — ■ Criminal 
 'Code, 1892, s. 53. 
 
 A trespasser upon land of which another 
 is in peaceable possession caniiot be con- 
 victed of an assault under section 53 of 
 the Criminal Code, 1892, merely because 
 he refuses to leave upon the order or 
 demand of the other, and the latter part 
 of the section does not apply-until there 
 is an overt act on the part of the person 
 in possession towards prevention or re- 
 moval, and an overt act of resistance on 
 the part of the trespasser. A verdict, 
 therefore, against the defendant for 
 malicious prosecution in chargii^ the 
 plaintiff before a magistrate with an 
 assault, where the plaintiff had merely 
 refused on the demand of the defendant 
 to quit the premises upon which he was 
 trespassing, was held to be right. Pockett 
 V. Pool, 11 M. R. 275. 
 
 See Criminal Procedure, 1. 
 — Criminal Law, XIII, 4. 
 
 ASSAULT OCCASIONING ACTUAL 
 BODILY HARM. 
 
 See Criminal Law, II, 1, 2. 
 
 ASSESSMENT. 
 
 See Prohibition, I, 8. 
 
 — Sale of Land for Taxes, III, IV, 1, 
 
 2; V, 2; VI, 1, 3; IX, 1, 3; X, 
 5,8. 
 
 — Taxation, 1. 
 
 ARCHITECT'S CERTIFICATE 
 OF COMPLETION. 
 
 See Building Contract, 1. 
 
 ASSIGNEE OF PURCHASER. 
 
 See Vendor and Purchaser, VII, 1. 
 
57 
 
 ASSIGNMENT. 
 
 58 
 
 ASSIGNMENT. 
 
 See Gaknishment, VI, 6. 
 — Set-off, 5. 
 
 ASSIGNMENT FOR BENEFIT OF 
 CREDITORS. 
 
 1. Discretion of trustee — Interpleader 
 —Costs. 
 
 An assignment for the benefit of 
 creditors empowered ' the trustee to sell 
 the estate ,"when and so soon as they 
 shall deem expedient, in such manner and 
 
 on such terms as they or he shaU 
 
 deem proper and with power for them 
 
 or him to cancel or revoke any such sale, 
 or withdraw from sale and resell' without 
 being answerable for any loss arising 
 therefrom"," and the trustee was directed 
 "to pay and divide the clear residue among 
 the creditors of the debtor rateably accord- 
 ing to the amount of their respective 
 claims." 
 
 Held, 1. The assignment was vaUd. 
 
 2. An assignee for. the benefit of cred- 
 itors, who is himself a creditor, may 
 render the assignment irrevocable by 
 acting under it- 
 
 3. Plaintiff in an interpleader suit was 
 allowed his costs although he might have 
 brought the parties together in some 
 garnishee proceedings; an injunction being 
 necessary to protect his goods pending 
 litigation. Henry v. Olass, 2 M. R. 97. 
 
 2. Lien of execution creditor for 
 
 COSta'^Assignment made after execution 
 placed in sheriff's hands — Assignments 
 Act, R. S. W. 1902, c. 8, ss. 8, 9—Exe- 
 eutims Act, R. S. M. 1902, c. 58, s. 11. 
 
 The hen of an execution creditor for his 
 costs given by section 11 of The Executions 
 Act, R. S. M. 1902, c. 58, when the writ of 
 fieri facias is placed in the sheriff's hands, 
 is not taken away by section 8 of -The 
 Assignments Act, R. S. M. 1902, c. 8, upon 
 the making "of an assigimient for the 
 benefit of creditors under said Act; but, 
 on the contrary, such lien is expressly 
 recognized in both sections 8 and 9 of 
 the Act. 
 
 The assignee, therefore, has no right to 
 demand possession of property seized by 
 the sheriff without payment to him of his 
 own and the execution creditor's costs. 
 
 Gillard v. Milligan, (1898) 28 O. R. 645, 
 and' Ryan v. Clafkson, (1890) 17 S. C. R. 
 251, followed. 
 
 Thordarson v. Jmes, 18 M. R. 223. 
 
 3. Priority of claim of execution 
 creditor — M<me^ paid to sheriff by assignor 
 before assignment — Priority as bctwie(i, ^ 
 assignee and execution creditor — Assign- 1 
 ments Act, R. S. M. 1902, c. 8, ss. 8 and 9. 
 
 1. Moneys paid to the sheriff by ail 
 execution debtor whose goods have been 
 seized under the execution, but have not 
 been sold thereunder, are the property of 
 the execution creditor, and the sheriff is 
 not required by section 9 of the Assign- 
 ments Act, R.S.M. 1902, c. 8, to pay them 
 over to the assignee under an assignment 
 by the execution debtor for the benefit of 
 his creditors, unless such moneys are the 
 proceeds of an actual sale by the sheriff. 
 
 2. The words "completely executed by 
 payment" in section 8 of the Act, giving 
 precedence to an assigimaent for the 
 general benefit of creditors over all exe- 
 cutions not completely executed by pay- 
 ment, mean executed by payment to the 
 sheriff, not to the execution creditor, so 
 that the assignee has no right, under that 
 section, to any moneys collected by a 
 sheriff under an execution against the 
 assignor. 
 
 Clarkson v. Seuers, (1909) 17 O. R. 592, 
 followed. 
 
 Newton v. Floley, 20 M. R. 519. 
 
 4. Revocation — Delivery. 
 
 Whether a conveyance for the benefit 
 of creditors has or has not ceased to be 
 revocable depends on the character of the 
 representation made to the creditors as to 
 its existence, and the manner "that such 
 representation has been acted upon^ , 
 
 A debtor executed certain conveyances, 
 absolute in form, to two relatives and 
 caused them to be registered. At the 
 same time he had prepared a, document 
 setting forth that the grantees were to 
 hold the lands upon certain trusts for the 
 benefit of certain scheduled creditors. 
 This document he did not execute. All 
 the papers were retained by the debtor 
 and neither of the grantees saw them 
 until after his death, when one of them 
 ■ executed the declaration of trust. 
 
 Held. That no trusts had been de- 
 clared by the grantor. 
 
 Although registration of a deed may 
 not necessarily imply dehvery of the deed, 
 yet the usual certificate of the registrar 
 of the registration of the deed is by Con. 
 Stat. Man., o. 60, s. 31, ma.de- jn-ima facie 
 evidence of the execution of th^ deed. 
 Leacock v. Chambers, 3 M. R. 645. 
 
59 
 
 ASSIGNMENT OF CHOSE IN ACTION. 
 
 60 
 
 * 5. Set-oS--Counterclaim — Assignments 
 
 V Act, U.S. M. 1902, c. 8, is, 6, 26— Right of 
 "^ ,<i^,iore for dd/mages — Solicitors' lien -for 
 ^osts-r King' sBench Act, s. 39 (e), Rvle293. 
 Plaintiff sued for damages for deceit 
 , upon the sale by defendant to him of a 
 business fraudulently rejyesented to be of 
 much greater value than it was. De- 
 fendant counterclaimed for the balance of 
 the purchase money. 
 
 After the trial but before judgment 
 plaintiff made an assignment for the bene- 
 fit of his creditors under the Assignments 
 Act, R. S. M. 1902, c. 8, and the assignee 
 was added as a co-plaiatiff. 
 
 In giving judgment the trial Judge 
 awarded $750. damages to • the plaintiff 
 with the costs of the action, but he found 
 also that the defendant was entitled to 
 recover a much larger simi on his counter- 
 claim which was not disputed. The 
 judge also ordered a set-on and that 
 judgment be entered for defendant for the 
 balance and refused to allow the plaintiff's 
 solicitor any hen for costs. 
 
 Held, on appeal, Howell, C. J. A., 
 dissenting. 
 ., (1.) The plaintiff's claim against the 
 
 - defendant did not pass to the assignee by 
 virtue of The Assignments Act, not being 
 covered by any of /the expressions, "real 
 and personal estate, rights, property, 
 credits and effects," used in section 6 of 
 the Act, and being something which could 
 not be reached by creditors under ordinary 
 legal proceedings. 
 
 (2.) Such a right of action is not assign- 
 able under sub-section (e) of section 39 
 of the King's Bench Act. 
 
 Blair v. Asseltine, ,(1893) 15 P. R. 211, 
 and McCormick v. Toronto Railway Co., 
 (1906) 13 0. L. R. 656, followed. 
 MXhegor v. Campbell, 19 M. R. 38. 
 
 6. Rights of secured creditor after 
 Valuation of his security — Assign- 
 ments Act, R. S. M. 1902, c. 8, s. 29. 
 
 When the assignee under an assignment 
 for the benefit of creditors, made pursuant 
 to The Assignments Act, R. S. M. 1902, c. 
 8, haS failed within a reasonable time to 
 V exercise his right to take over the securi- 
 ties held by a creditor at ten per cent, 
 over the amount at which the creditor 
 has, under section 29 of the Act, valued 
 them, the creditor has the right to collect 
 what he can from the securities and rank 
 for dividends on the estate as a creditor 
 for the full amount of the difference 
 between his total claim and the valuation 
 made, although he may have collected on 
 
 the securities more than the amount of 
 the valuation, provided he shall not re- 
 ceive in aU more than 100 cents in the 
 doUar. Under such circumstances the 
 creditor cannot be required to re-value 
 his securities. Bank of Ottawa v. Newton, 
 16 M. R. 242. 
 
 See Administration, 6. 
 
 — Chattel Mortgage, V, 4. 
 
 — Deed of Land, 2. 
 
 — Evidence, 1. , 
 
 — Exemptions, 12. 
 
 ■ — ■ Pratodulent Conveyance, 1. 
 
 — Prattditlbnt Preference, 1, 1; III, 1. ^ 
 — ■ Illegality, 1. 
 
 — Real Property Limitation Act, 2. 
 
 — Set-off, 2. 
 
 — Trustees, 2. 
 
 ASSIGNMENT OF CHOSE IN 
 ACTION. 
 
 Order to pa.y— Validity of assignment — 
 Statute of Frauds. 
 
 McK. & McQ., being indebted to de- 
 fendant, gave him an order directed to 
 the mayor and council of the city of W., 
 requestmg them to retain $600 from 
 money coming to them,' and pay same to 
 defendant. Shortly after McK. gave 
 plaintiff an order on defendant in follpwing 
 terms: "Will you kindly agree to pay 
 Edward Lynch the amount of~money due 
 us on order for tanks to corporation after 
 you receive same ^rom the chamberlain, 
 to be paid by him to men for work on 
 same." Defendant, indorsed the order as 
 follows: "I will agree to pay the balance 
 of money upon the order you gave me on 
 the city chamberlain, first deducting the 
 amount you owe me, and the balance I 
 will pay over to the said Edward Lynch." 
 
 Held, that the acceptance by defendant 
 was valid, and bound the acceptor to pay. 
 Lynch v. Clougher, 1 M. R. 293. 
 
 See Banks and Banking, 5. 
 
 — Capias, 6. 
 
 — Chose in Action, 1, 3, 4. 
 — ■ Company, IV, 2. ^ 
 
 — Contract, IV, 2. 
 
 — ■ Equitable Assignment, 1, 3. 
 
 — Fraudulent Preference, II. 
 — ■ Garnishment, IV, 1. 
 
 — Interpleader, V, 3. 
 — ■ Mechanics' Lien, I." 
 
 — Negotiable Instrument. 
 
 -^ Vendor and Purchaser, III, 1; IV, 1. 
 
 — Winding-up, I, 1. 
 
61 
 
 ASSIGNMENT OF COVENANT. 
 
 62 
 
 ASSIGNMENT OF COVENANT. 
 
 See Covenants, 9. 
 — Right of Action. 
 
 ASSIGNMENT OF JUDGMENT. 
 
 <See Registered Judgment, 1. 
 
 — Summary Judgment, III, 1. 
 
 — Winding-up, IV, 7. 
 
 ASSIGNMENT OF LAND SCRIP. 
 
 See Replevin, 6. 
 
 ASSIGNMENT OF MORTGAGE. 
 
 See Covenant, 1. 
 
 — Mortgagor and Mortgagee, VI, 2. 
 
 — Solicitor, 3. 
 
 ASSIGNMENT OF SALARY. 
 
 See Monet Lenders' Act, 1. 
 — Wages, 1. 
 
 ASSIGNMENT OF TAX SALE 
 CERTIFICATE. 
 
 See Sale op Land for Taxes, V, 2. 
 
 ASSIGNOR AND ASSIGNEE. 
 
 See Parties to Action, 3. 
 
 ASSUMPTION OF RISK. 
 
 See Negligence, I, 4, 5; III, 2; V, 2; VI, 3. 
 
 ATTACHMENT OF GOODS. 
 
 1. Absconding debtor — County Courts 
 Act, R. S. M. 1902, c. 38, ss. 200— 2'06, 
 252, 253 — Construction of Statutes — Mean- 
 
 ing of words "trader" and "manufacturer" 
 in above section 200. 
 
 1. The provisions of sections 200 to 
 206 of the County Courts Act, R. S. M. 
 1902, c. 38, respecting the rateable dis- 
 tribution of the proceeds of the sale of 
 the goods of a trader amongst ^11 his 
 execution creditors, do not repeal by 
 implication the earUer legislation to be 
 found in sections 252 and 253 of the same 
 Act, and do not apply to the case of the 
 goods of an absconding debtor seized 
 under a writ of attachment and afterwards 
 sold under execution, *so that in the latter 
 case, although the debtor may be a trader, 
 no creditor can share in the proceeds of 
 the sale of the goods who has not sued 
 out an attachment within the time allowed. 
 
 2. A general statute does not repeal an 
 earher special enactment by mere impli- 
 cation. 
 
 Bailey v. Vancouver, (1895), 25 S. C. R. 
 62, followed. 
 
 Quaere: Whether a baker is a manu- 
 facturer within the meaning of sub-section 
 (c) of section 200. 
 
 Semble: A baker would not be deemed 
 to be a trader within sec. 200 (a) merely 
 because, as jpcidental to his bakmg busi- 
 ness, he bought and sold candies, .cakes 
 and confectionery to a small extent. 
 
 Thomas v. Hall, (1874), 6 P. R. 172, 
 followed. 
 
 Robinson v. Oraham, 16 M. R. 69. 
 
 2. Affidavit defective — Setting aside — - 
 A writ of attachment was issued ujMjn 
 
 an order -made upon an affidavit which 
 omitted to state that the indebtedness 
 was due "after making all proper and just 
 set-offs, allowances and discounts" as re- 
 quired by Con. Stat. c. 37, s. 14, s-s. 1. 
 Defendant moved to set the writ aside as 
 irregular on account of the omission. 
 
 Held, that the omission of the words 
 was fatal, and without those words the 
 judge who made the order had no juris- 
 diction. 
 
 Also, that any judge might entertain an 
 application to set aside the writ, it not 
 bemg based on the assumption that the 
 judge who made the order had in doing 
 so erred in judgment or discretion. Keder 
 V. Hazlewood, 1 M. R. 28. 
 
 3. Affidavit defective — Setting aside 
 for irregidarity — Term of bringing no action 
 for damages—Costs, refusal of. 
 
 In- suing out a writ of attachment 
 against defendaiit, plaintiff had omitted 
 to state in his affidavit whether the de- 
 
ATTACHMENT OF GOODS. 
 
 64 
 
 fendant was a corporation or not. The 
 defendant, being therefore entitled ex 
 debito justitim, to have the writ set aside, 
 
 Held, Dubuc, J., dissenting, that the 
 Court could not impose the term of bring- 
 ing no action against the plaintiff as a 
 condition of setting the writ aside, but 
 that costs should be refused unless de- 
 fendant would consent to such term being 
 imposed. 
 
 Ashdovm v. Dederick, 2 M. R. 212, 
 followed. 
 
 Per DuBDC, J. — The Court has juris- 
 diction to impose the term of bringing no 
 action in a proper case, and in this case 
 such term should be imposed. Wilson v. 
 Smith, 9 M. R. 318. 
 
 4. Affidavit defoctiyo—Affidavit to ob- 
 tain order — Disclosure of relevant facts — 
 Application to set aside order — Additional 
 evidence to support order — King's Bench 
 Act, Bides 811, »13. 
 
 Application to set aside an ordei" for 
 attachment of defendant's personal prop- 
 erty granted ex parte under Rule 811 of 
 The King^s Bench Act. 
 
 The affidavit on which the order had 
 been obtained showed as the grounds of 
 the plaintiff's behef in^ the fraudulent 
 intent oi defendant to delay, defeat or 
 defraud her creditors only, (1) that the 
 defendant had sold her real estate and 
 that the plaintiff was informed of such 
 sale by a person who was present at the 
 sale, and (2) that the plaintiff had good 
 reason to beUeve and verily believed that 
 defendant was about to assign, transfer 
 and dispose of her personal property, 
 effects and credits with intent to delay, 
 defeat or defraud her creditors, and that 
 he -was so informed by an auctioneer to 
 whom the defendant applied to purchase 
 the said goods and to pay her the proceeds 
 over and above a certain chattel mortgage, 
 and to whom the defendant had stated 
 that it was her intention to leave the 
 Province as soon as the said goods should 
 be disposed of. 
 
 Held, that these statements in them- 
 selves did not show sufficient grounds 
 from which to infer fraudulent intent on 
 defendant's part. 
 
 On the application to set aside the 
 order plaintiff filed a new affidavit setting 
 forth a number of additional facts which, 
 together with what had been shown be- 
 fore, would have feeen sufficient in the 
 opinion of the Judge to found an order 
 for an attachment, but at the same time 
 disclosing that he held security from de- 
 
 fendant for part of his claim and that 
 defendant, prior to the issue of the attach- 
 ment, had offered to pay a part of the 
 debt for a release of the security. 
 
 Held, (1) that the new evidence given 
 ■ by plaintiff could not be considered with 
 the view of strengthening his case; (2) 
 that, following the practice on motions 
 for injunctions, the non-disclosure by, 
 plaintiff of material facts suppressed or 
 omitted either intentionally or by mistake 
 is good cause for setting aside an order 
 for attachment even though the plaintiff 
 would have been entitled to the order_on 
 a full statement of the facts. Newton v. 
 Bergman, 13 M. R. 563. 
 
 6. Foreign parties— form of affidavit. 
 
 In order that the goods of a foreign 
 defendant may be attached it is essential 
 that the plaintiff be a resident of this 
 Province. 
 
 Where the parties to a note both reside 
 in a foreign country, the presumption is 
 that the note was made there. 
 
 An affidavit for an attachment must 
 state whether or not the defendant is 
 a corporation, McMaster v. Jones, 6 M. 
 R. 186. 
 
 6. Priorities — Execution creditors. 
 Three creditors issued writs of summons 
 
 prior 'to the issue of a writ of attachment 
 against the same defendants by another 
 creditor. A fifth issued a writ of summons 
 after the attachment. The three-obtained 
 executions first. 
 
 In settling the priorities, 
 
 Hdd, 1. Mere irregularities, which 
 might be taken advantage of by the de- 
 fendant, are not open to third partica. 
 
 2. A judgment may be attacked by a 
 third party on the ground that it is sigried 
 as against the firm, and that the debt was 
 the private debt of a member of the firm 
 only. 
 
 3. The fifth creditor was entitled to 
 share with the attaching creditor, it not 
 being necessary for subsequent creditors 
 to- issue attachments. Fischel v. Tovmsend, 
 1 M. R. 99. 
 
 7. Tort — Action for damages for enticing 
 away plainMfs wife and for criminal con- 
 versation — King's Bench Act, Rides' 815, 
 817. 
 
 An attaching order against the defend- 
 ant's property cannot properly be made 
 under Rules 813—858 of the King's 
 Bench Act, R. S. M. 1902, c. 40, upon the 
 commencement of an action for damages 
 
65 
 
 ATTACHMENT OF THE PERSON. 
 
 66 
 
 -for' enticing away the plaintiff's wife ££nd 
 for criminal conversation because: 
 
 (1) There is not "a cause of action 
 arising from a legal Hability" within the 
 meaning of that expression in Rule 815, 
 as the cause of action and the legal liability 
 arose simultaneously from the tortious . 
 act; legamabiUty giving rise to a subse- 
 quent cause o^ action is found only in 
 contract. 
 
 (2) The plaintiff could not properly 
 make the affidavit required by Rule 817, 
 viz, that the defendant is legally liable to 
 him in .d^'iuS'S^s in the sum claimed in 
 the action. 
 
 Emperor of Russia v. Proskouriakoff, 
 (1908) IS M. R. at p. 73, and Mclntyre 
 V. Gibson, (1908) 17 M. R. 423, followed. 
 
 (3) The words in Rule 817, "after 
 making all proper and just set-offs, allow- 
 ances and discounts" are not applicable 
 in regard to torts. Hime v. CouUhard, 
 20 M. R. 164. 
 
 See Intekpleadeb, III. 
 
 — Jurisdiction, 9. 
 
 -— Practice, XX, A, 2. 
 
 — ■_ PbohibitioW, I, 2. 
 
 — ■ Solicitob's Lien for Costs, 1. 
 
 — SoTJTH African "LanbWabbant. 
 
 ATTACHMENT OF THE PERSON. 
 
 1. Evidence on application for — Debt- 
 or's Ad — Material for application — Appeal 
 — Order other than that asked for — Be- 
 instatement of appeal on list. 
 
 Depositions of%a debtor taken upon an 
 examination, as to his means to satisfy a 
 jud^ent, may be used against him on an 
 application to Commit tinder the Debtors 
 Act: So, also, may his cross-examination 
 upon an affidavit filed by him in answei 
 to such an application. 
 
 The decision of a single judge upon 
 such an application will- not be readily 
 reversed upon appeal. 
 
 An order to pay by instalments may be 
 made upon a summons to commit. 
 
 Through -misapprehension as to. the 
 hour at which the court sat, opunsel 
 appeared after his appeal had been struck 
 out. ' . • 
 
 Held, considering the nature of the 
 order appealed from, that the appeal 
 would be reinstated were there reason to 
 believe that^upon fuU argument the order 
 would prove to be erroneous. McMonagle 
 V. Orton, 6 M. R. 350. 
 
 2. For non-payment of costs — Means 
 
 to pay. .1, 
 
 Ilpoii an apphcation to commit two 
 persons for non-payment of a judgment 
 for costs, it appeared that they were two 
 of the members of a firm engaged in 
 carrying out several contracts. One con- 
 tract was completed and out of it a profit 
 had been made which had not been 
 divided, but had been used in the work 
 under the other contracts. It was un- ' 
 certain whether profit or loss would accrue 
 from the other contracts. 
 
 Held, that the facts did not establish 
 that the debtors had had means to pay 
 the judgment debt. Saul v. Batemmn, 
 6 M. R. 189. 
 
 3. For non-payment of money— 
 
 Imperial Debtors Act. 
 
 R., as. agent of S., obtained out of court 
 a sum larger than that to which S. was 
 entitled. An order was made for the 
 repayment of the excess with costs. . Upon 
 an apphcation to Commit R./ for default 
 in payment. 
 
 Held, 1. That the Debtors Act, 32 & 
 33 Vic. (Imp.) c. 62, was in force in 
 Manitoba. ' 
 
 2. That, it sufficiently appearing that 
 R. had means to pay, an order should be 
 made for his committal. 
 
 a. That the order might be made for 
 non-payment of costs. 
 
 4. That the default in payment m^ht 
 be proved as well by R's. admission as by 
 affidavit of the party to whom payment 
 should have been Sttade. 
 
 Bremner, Be, 6 M. R. 73. 
 
 See Practice, XXVIII, 2. . 
 — Solicitor, 1, 8. 
 
 ATTORNEY. 
 
 See Solicitor. 
 
 ATTORNEY AND CLIENT. 
 
 See Solicitor and Client. 
 
 ATTORNEY GENERAL, 
 
 See Pleading, III, 1. 
 
67 
 
 ATTORNEY GENERAL, RIGHT OF, TO INTERVENE. 
 
 68 
 
 ATTORNEY GENERAL, RIGHT OF, 
 TO INTERVENE. 
 
 See Liquor License Act, 8. 
 
 ATTORNMENT. 
 
 See Distress foe Rent, 3. 
 
 ATTORNMENT CLAUSE. 
 
 Mortgagor and Mortgagee, VI, 4. 
 
 AUCTION SALE. 
 
 See Sale of Land for Taxes, X, 3. 
 
 AUTHORITY OF AGENT. 
 
 jSee Chattel Mortgage, I, 1. 
 
 AUTHORITY TO ADMINISTER 
 OATH. 
 
 See Perjury. 
 
 AUTHORITY TO AGENT. 
 
 See Agreement for Sale of Land, 1. 
 
 GoifPANT, II, 1. 
 
 GONTRACT, XV, 8. 
 
 — Election Petition, IV, 1, 2, 5. 
 — ■ Malicious Prosecution, 2. 
 
 — Master and Servant, IV, 4. 
 
 — Principal and Agent, I. — ^11, B. IV, 
 
 V, 3, 6. 
 
 — Rectification of Deed, 1. 
 
 — Sale of Goods, VI, 1. 
 
 — Sale op LaSb for Taxes, X, 8. 
 
 — Sheriff, 7. 
 
 — Vendor and Purchaser, VII, 9. 
 
 AUTOMOBILE. 
 
 Negligence in diiviag^-LiabiUty of 
 driver for injury to pedestrian — Burden of 
 ■proof of negligence^Motor Vehicle Act, 
 
 7 & 8 Edward VII, c. 34, ss, 38, 39— 
 Act respecting Compensation to Families of 
 Persons killed by Accident, R. S. M. 1902, 
 c. 31 — Contributory negligence. 
 
 The administrator of the estate of 
 Andrew McKay brought this action under 
 the Act respecting Compensation to 
 Families of Persons killed by Accident, 
 R. S. M. 1902, 0. 31, clainiing damages on 
 behalf of certain relatives of McKay who, 
 when walking across a public street at 
 night, was killed by being nm over by an 
 automobile driven by the defendant, as 
 it was alleged, negligently. The lights 
 carried by the machine at the time, 
 •although, perhaps sufficient to comply 
 with the requirements of the MotoF 
 Vehicle Act, 7 & 8 Edward VII, c. 34, s. 
 12, were not strong enough to enable the 
 defendant to see clearly a person walking 
 over the crossing in front, which was in 
 a dense' shade cast by overhanging trees, 
 and the evidence did not satisfy the tiial 
 Judge that the horn- had been sufficiently 
 sounded, either to comply with section 13 
 of the Act or as careful conduct in the 
 circumstances required. As to the speed 
 at which the car was going, according to 
 the defendant's witnesses, it was at least 
 eight or nine miles an hour. 
 
 Held, that the burden of proof that 
 the defendant was not guilty of negUgence 
 in the matter was thrown upon -him by 
 section 38 of the Motor Vehicle Act and 
 that he had not satisfied, it; also that the 
 evidence showed neghgence on his part. 
 The fact that it was dark at the crossing 
 and that he went over it at such a rate 
 of speed, when his Ughts did not enable 
 him to see a reasonable distance ahead, 
 itself constituted negUgence in the de- 
 fendant. 
 
 The defendant urged thSt the deceased 
 had been guilty of neghgence in that, if 
 he had looked to the east, he would have 
 seen the Ughts on the car approaching 
 and avoided the accident. 
 
 Held, that the principle that persons 
 lawfuUy using a highway are entitledi to 
 rely on warnings required by statute is 
 applicable under such circumstances, and 
 that the usual rule of ordinary care does 
 not impose on travellers' the burden of 
 being constantly on the lookout for auto- 
 mobiles and they have a right to presume 
 that those who may be lawfuUy usin^ the 
 highway with themselves will exercise a 
 proper degree of care. 
 
 Vcdlee v. G. T. B. Co., (1901) 1 O. L. R. 
 224:; Pedlar v. C. N. R. Co., (1909) 18 
 M. R. 525, and Hennessey v. Taylor, 
 
69 
 
 AVOIDANCE OF CONTRACT., 
 
 70 
 
 (1905) 76 N. E. Rep. 224, 4 Am. & Eng. 
 Ann. Cas. 396, followed. 
 
 Verdict for plaifttift sustained. Toronto 
 General Trusts Corp. v. Dunn, 20 M. R. 412. 
 
 AVOIDANCE OF CONTRACT. 
 
 See Half Breed Lands Act, 2. 
 
 BAIL. 
 
 iSee Criminal L.\w, XVII, 3. 
 
 BAILIFF. 
 
 iSee Costs, XI, 1. 
 
 — CotrisfTY Court, II, 4, 7. 
 
 — Fi. Fa. Goods, 1. 
 
 — ■ Garnishment, IV, 3. 
 
 — Landlord and Tenant, I, 5, 8. 
 
 BAILMENT. 
 
 1. Liability of bailee for loss — 
 
 Bailee of chattel. 
 
 The hii-er of a chattel must restore it 
 in as good plight as it was when received, 
 except for that deterioration which ensues 
 in the course of using, from ordinary wear 
 and tear, and for any injury or loss which 
 may have occurred without culpable neg- 
 ligence or misconduct on the hirer's part. 
 He must answer, also, not only for loss 
 and injury inflicted upon the thing by him 
 self in person, but also for the injurious 
 acts of tho^e whom he voluntarily admits, 
 so to speak, into the use of the thing. 
 
 The defendants hired from the plaintiff 
 a team of horses. One of the defendants, 
 having control of the horses, shot one of 
 them, alleging that it was diseased. 
 Before the shooting the plaintiff infomSed 
 this defendant that the horse was not 
 diseased. The defendant acted on his 
 5wn opinion merely, and the evidence 
 showed that he was wrong. 
 
 Held, That the defendants were jointly 
 liable for the value of the horse. Morris 
 V. Armit, 4 M. R. 152. 
 
 2. Money had and received — Receipt 
 only prima facie evidence of delivery — 
 Common carrier — Delivery of money pack- 
 age — Proof of loss — Conditions precedent. 
 
 This was an action for the recovery of 
 $2000 handed to the defendants to be 
 sent by express to the plaintiffs' agent at 
 Wawanesa. The money package never 
 reached the hands of the plaintiffs' agent, 
 although he signed a receipt for it in the 
 office of defendants at Wawanesa. 
 
 Held, nevertheless, under the peculiar 
 circumstances detailed in the report, that 
 the plaintiffs were entitled to recover the 
 amojmt from the defendants under the 
 common count for money had and re- 
 ceived. 
 
 The defendants' undertaking on receipt 
 of the money was that it" should be 
 forwarded subject to certain conditions, 
 one of which was that defendants should 
 not be liable for any claim of any nature 
 whatever arising out of the receipt of the 
 property described, unless such claim 
 should be presented in writing within 60 
 days from the date of the loss or damage, 
 in a statement to which a copy of the 
 contract should be annexed. 
 
 Plaintiffs presented their claim in 
 writing within the time limited, but did 
 not show that a copy of the contract was 
 annexed to their statement of claim. 
 
 Held, (KiLLAM, J., dissenting) that the 
 want of this copy was no bar to the 
 plaintiffs' right to recover. 
 
 Per Bain, J. The claim in this action 
 was not one for either loss or damage, and 
 therefore not of the kind referred to in 
 the condition. 
 
 Per Taylorj C. J. The case of Richard- 
 son V. Canada West Farmers Ins. Co., 16. 
 U. C. C. P. 430, is authority to show 
 that the annexing of the copy of the 
 contract was not a condition precedent 
 to the plaintiffs' right- to recover. 
 
 Per Killam, J. ^ The furnishing such 
 copy was clearly a condition precedent to 
 the plaintiffs' right to recover and, as no 
 copy of the contract was annexed to the 
 statement of the claim as required, the 
 plaintiffs had failed to prove their case. 
 
 Richardson v. Canada West Farmers' 
 Ins. Co., 16 U. C. C. P. 430, distinguished. 
 
 Martin v. Northern Pacific Express Co., 
 10 M. R. 595. 
 
 Rev<5rsed, 26 S. C. R. 135. See next" 
 
 3. Money had and received — Special 
 pleas — Common carriers — Express Company 
 — Receipt for money parcel — Condition 
 precedent — Formal notice of claim — Plead- 
 ing. 
 
 Where an express company gave a 
 receipt for money to be forwarded with 
 
71 
 
 ' BAILMENT.' 
 
 72 
 
 the condition endorsed that the company 
 should not be liable for any claim in 
 respect of the package unless within 
 sixty days of loss or damage a claim 
 should be made by written statement 
 with a cOpy of the contract annexed: 
 
 Heldf that the consignor was obhged to 
 
 comjjly strictly with these terms as a 
 
 ^ condition precedent to recovery against 
 
 the express company for failure to dehver 
 
 the parcel to the consignee. 
 
 Richardson v. The Canada West Farmers' 
 Ins. Co., 16 U. C. C. P. 430, distinguished. 
 
 In an action to recover the value of the 
 parcel, on the common count for money 
 had and received, the plea of "never 
 indebted" put in issue all material facts 
 necessary to' establish the plaintiff's right 
 of action. Martin v. Northern Pacific 
 Express Co., 26 S. C. R. 135. ' 
 
 4. Negligence — -Involuntary bailee. 
 The plaintiff, wishing to send $1,010 to 
 his brother in Toronto, procured at- the 
 office of the defendants an envelope such 
 as they use in forwarding money by 
 express, enclosed ^)ank notes to the amount 
 of $1,010, and mailed the letter and 
 registered it. The letter reached Toronto, 
 ~ but was not delivered, owing to its being 
 defectively addressed. The officials of 
 the Dead Letter Department at To- 
 ronto, guided by the printed matter on 
 the outside of the envelope, enclosed the 
 letter in one of their envelopes used for 
 returning such letters, addressed it and 
 sent it by registered mail to the defendants 
 in Winnipeg. In due course it was 
 delivered to the defendants' cashier, who 
 received it in a protected ca,ge or pen in 
 which he performed, his duties. After 
 receiving the package the cashier, . in 
 ignorance of its contents, laid it unopened 
 on the chief clerk's desk, which stood 
 open to the public and to all the defend- 
 ants' officials. The chief clerk was not 
 at his desk when the package^ was placed 
 there and said he never saw it and there 
 was nothing to show what became of it 
 afterwards. The defendants' Winnipeg 
 office had never before, apparently, 
 \ received a registered dead letter, or lost 
 ' . a registered letter. 
 
 Held, (Perdue, J., dissenting,) that, 
 under the circumstances, the defendants 
 owed no duty to the plaintiff to take care 
 of the letter and the plaintiff could not 
 recover. Cosentino v. Dominion Exp. 
 Co., 16 M. R. 563. 
 
 5. Negligence — Liability for spoiling 
 of meat placed in cold storage. 
 
 The defendants received at different 
 times in their cold Storage warehouse 
 fresh meat, to be frozen and kept frozen 
 for the plaintiffs until called for. 
 
 After a few months the meat was found 
 so spoiled that it had to be destroyed. 
 This action was brought to recover dam- 
 ages for the loss, claimed to have been caus- 
 ed by the neghgence of the defendants. 
 
 When delivered to the defendants the 
 meat was enclosed in wrappers which, 
 according to the evidence, necessitated 
 one or two more degrees of frost to freeze 
 the meat than if there had been no 
 wrapping, and the defendants attributed 
 the damage to this fact and relied on a 
 provision in the receipts given that they 
 were not to be "responsible for any loss 
 or damage caused * * * from any 
 defects in the packages, barrels, wrappers 
 or coverings in which the said goods are 
 contained." 
 
 The trial Judge made the following 
 findings of fact, 
 
 (1) The meat was in good and sound 
 condition when delivered at the defend- 
 ants' warehouse. ^ 
 
 (2) The warehouse was properly con- 
 structed for the purpose of cold storagef 
 the plant was a first-class cold storage 
 plant of modern type and sufficient 
 power; that it was operated with the"^ 
 ordinaiy and reasonable care which might 
 have been expected in the carrying out 
 of the business, and that the men in 
 charge of the plant, while not having that 
 higher and special knowledge which a man 
 of scientific attainment might possess on 
 the subject, yet had such practical and 
 even technical knowledge as might be 
 reasonably expected in conducting sUch a 
 business in an ordinarily satisfactory 
 manner. > • 
 
 (3) The real cause of the spoiling of 
 the meat had not been disclosed by the 
 evidence. 
 
 On these findings, the trial Judge held 
 that the plaintiffs had failed to estabUsh 
 neghgence on the defendants' part, and 
 he dismissed the action with costs. 
 
 Held, on appeal, that the condition in 
 the receipt above quoted did not relieve 
 the defendants from the consequences of 
 negligence, if proved; but, Perdue J. A., 
 dissenting, that the plaintiffs had failed 
 to prove neghgence and that the appeal 
 should be dismissed. 
 
 Perdue, J.A. (1) Since the meat was 
 in good and sound condition when re- 
 
73 
 
 BALLOT. 
 
 74 
 
 ceived, and the defendants impliedly 
 undertook to promptly freeze it and keep 
 it frozen, the fact that it was foimd 
 spoiled a few months afterwards speaks 
 for itself and negligence must be presumed 
 against the defendants: Kearney v. 
 London, Brighton, etc., Ry. Co., (1870) 
 L. R. 6 Q. B. 759. 
 
 (2) The defendants in this case could 
 not meet the plaintiffs' claim by showing 
 merely that they had used ordinary and 
 reasonable care; but were bound to see 
 that the meat was at once thoroughly 
 frozen and then to keep it in that con- 
 dition and anything short of that would 
 be neghgence: Brabant v. King, [1895] 
 A. C. 640. 
 
 ■ (3) The evidence showed that the 
 damage was probably caused by the 
 defendants' fapure to maintain a suf- 
 ficiently low temperature to freSze the 
 meat thoroughly. Charrest v. Manitoba 
 Cold Storage Co.,- 17 M. R. 539. 
 
 Appeal dismissed. 42 S. C. R. 253. 
 
 > 6. Sale of goods — Statute of Frauds. 
 
 When wheat or other merchandise is 
 received in a warehouse or elevator 
 nominally on storage for the person 
 delivering it, but on such terms that the 
 identical goods are so mixed up with 
 others that they can not be returned, 
 and the well understood course of the 
 business is that, unless a price is agreed 
 on, the party deUvering the goods can 
 only,require an equivalent amount of the 
 same kmd and quaUty to be accounted 
 for to him, the contract between the 
 parties is really one of sale and not of 
 bailment, whether the vendor is to receive 
 the price in money or an equal quantity 
 of goods-or has an option td do either, 
 as the property in the goods has passed 
 to the warehouseman. 
 
 In such a case the Statute of Frauds 
 offers no bar to the recovery of the price 
 or value of the goods so stored, in case 
 the warehouseman denies the receipt of 
 the same. 
 
 South Australian Insurance Co. v. 
 Randdl, (1869) 6 Moore P. C. N. S. 341, 
 followed. Lawlor v. Nicol. 12 M. R. 224. 
 
 See Conditional Sale, 4. 
 — Warranty, 2. 
 
 BALLOT BOX STUFFING. 
 
 Dominion Elections Act, R. S. C, . 
 
 c. 8 — Conviction of Deputy, Returning 
 Officer under s. 100, s-s. (c), although not 
 formally appointed. 
 
 The accused had received from the 
 Returning Officer an, appointment as 
 Deputy signed by him with the blank 
 for the name not filled up, as required 
 by s. 30 of the Dominion Elections Act, 
 R. S. C, c. 8. He acted as Deputy 
 Returning Officer at one of the polling 
 booths during the whole of the day of the 
 election. He was convicted under s-s. 
 (c) of s. 100 of the Act, for that he, being 
 the Deputy Returning Officer for that 
 district, fraudulently put into the ballot 
 box a number of ballots that he was not 
 authorized to put in, and a case was 
 reserved at the trial for the opinion of 
 the Court, a» to whether the accused 
 could under the circumstances properly 
 be convicted of such offence. 
 
 Held, following Rex v. Gordon, 2 Leach, 
 581; Rex v. Holland, 5 T. R. 607, and 
 Rex V. Dobson, 7 East, 218, that the 
 accused, having acted in the office and 
 having been the Deputy Returning 
 Officer de facto on the day in question, 
 was properly convicted of the offence 
 charged. Reg. v. Holman, 10 M. R. 272. 
 
 BALLOT. 
 
 See Criminal Law, XVII, 15. 
 — Local Option Bt-law, II ,1 III ,IV 
 V,2. 
 
 BANKS AND BANKING 
 
 1. Alteration of cheque after accep- 
 tance — Idability of bank on aliei-ed cheque. 
 
 Where a bank accepts or certifies a 
 cheque at the request of the drawer and 
 the cheque is afterwards altered by the 
 drawer so as to be made payable to 
 bearer instead of to order, the bank is 
 not hable to the drawer or his assignees 
 on the altered cheque; such an alteration 
 being a material one, although not one 
 of the kind specified in section 3 of The 
 Bills of Exchange' Act (1890). 
 
 An unaccepted cheque is not in any 
 sense an assignment of money in the hands 
 of a banker. 
 
 There is no debt between a banker and 
 his customer till a demand has been made 
 for payment. 
 
 "Hiere seems to be a distinction between 
 the liabiHty of a bank which has certified 
 or accepted a cheque at the request of 
 the drawer and the liability where the 
 acceptance is given at the request of the 
 holder; and it, is doubtful whether the 
 
75 
 
 BANKS AND BANKING. 
 
 76 
 
 holder of such a cheque in the former case 
 is in any different- position from the 
 holder of an unaccepted cheque. 
 
 The question of the materiality of the 
 alteration in a bill is a question of law, 
 and must be considered with reference to 
 the contract itself, and not at all with 
 reference to the surrounding circumstances. 
 Re Commercial Bahk of Manitoba. La 
 Bangue d' Hochelaga's Case, 10 M. R. 171. 
 
 2. Branches of banl::. — • Plaintiff 
 apphed for payment over, by the Bank, 
 of money deposited by T. with .it at the, 
 branch office at''Winnipeg. Previous to the 
 garnishee order being made the money 
 had been paid over by the head office at 
 Toronto under sequestration issued against 
 T. in Ontario. Held, following Irwin v. 
 Bank of Montreal, 38 U. C. Q. B. 375, 
 that a bank and its branches are but one 
 concern, and that the application must 
 therefore be discharged with costs. Bain 
 V. Torrance, 1 M. R. 32. 
 
 3. Customer releasing claim — 
 
 Monthly acknowledgment of correctness of 
 balance shown by books, 
 
 The plaintiff's claim was for damages 
 for an alleged illegal sale at a _ loss -of 
 certain goods hypothecated by him for 
 advances. He subsequently, but befqre 
 action, signed, either personally or by his 
 authorized agent, nine or ten successive 
 ' monthly acknowledgments of the correct- 
 ness of the balances djie to him as shown 
 by the books x)f the bank. Th^se doouT 
 ments contained the following clause 
 "And in consideration of the account of 
 the undersigned being not now closed, 
 and subject to the correction of clerical 
 errors if any, the bank is hereby released 
 from all claims^ by the undersigned m 
 connection with the charges or credits in 
 the said account and dealings up, to said 
 day." 
 
 Held, that, in the absence of any sug- 
 gestion of fraud on the part of the bank 
 in procuring such releases, they were 
 sufficient in form to bar the plaintiff's 
 action and, being founded on a sufficient 
 consideration, were valid and binding 
 upon him. Graves v. Home Bank of 
 Canada, 20 M. R. 149. 
 
 4. Payment of cheque — Joint payees 
 — Endorsement by one — Acgwiescence in 
 payrrient — Monthly receipts — Partnership. 
 
 When a partnership is entered into for 
 the purpose of buying tod selling lands, 
 he lands acquired in the business of such 
 
 partnership are, in equity, considered as 
 persbnalty, and may be dealt with by- 
 one partner as freely as if they constituted 
 the stock-in-trade of a commercial part- 
 nership. 
 
 The active partner in such business has 
 an imphed authority to borrow money oin. 
 the security of mortgages acquired by 
 the sale of partnership lands. 
 
 An amount so borrowed was advanced 
 by a cheque made payable to the order 
 of all the partners by name. The active 
 partner had authority, by power of 
 attorney, 'to sign his partners' names to 
 all deeds and conveyances necessary for 
 carrying on the business, but had no 
 express authority to indorse cheques. 
 , Held, that, having authority to effect 
 the loan and receive the amount in cash 
 he could indorse his partners' names on 
 the cheque, and the drawees had a, right 
 to assume that he did it for partnership 
 purposes and were justified in paying it 
 on such indorsement. 
 
 Held, also, that, if the pa3anent by the 
 drawees was not warranted, the drawers 
 having, for two years after, received 
 monthly statements of their account with 
 the drawees, and given receipts acknowl- 
 edging the correctness of the same, they 
 must be held to have acquiesced in the 
 payment. Manitoba Mortgage Co. v. Bank 
 of Montreal, 9 C. L. T., Occ. Notes, 125; 
 17 S. C. R. 692. 
 
 5. Purchaser without notice of 
 claim of baxik— Bank Act, R. S. C. 1906, 
 c. 29. ss. 86-88— ^SaZe of goods by pledgor 
 in ordinary course of business — Assign- 
 ment of chose in action — Set-off. 
 
 Goods piu'chased from the wholesale 
 manufacturer thereof in the ordinary 
 course of business without notice that he 
 has given security thereon to a bank under 
 sections 86 to 88 of the Bank Act, R. S. C. 
 1906, c. 29, will become the property of 
 the purchaser free from any claim of the 
 bank under such security. 
 
 National Mercantile Bank v. Hampson, 
 (1880) 5 Q. B. D. 177, followed. 
 
 The defendants were held entitled to set 
 off their claim for goods sold to the Sylves- 
 ter Company as against the claim of the 
 plaintiff upon an assignment to them by 
 the Sylvester Company of their claim for 
 goods sold to the defendants to the extent 
 of such set-off as it stood at the time of 
 receiving notice of the assignment, since 
 there was clear evidence of aa agreemen t 
 that there should be such a set-off. 
 
1 77 
 
 BANKS AND BANKING. 
 
 78 
 
 Siftori V. Coldwell, (1897) 11 M. R. 
 653, Story's Equity Jur. ss. 1434, 1435 
 and Lundy v. McCulla, (1865) 11 Gr. 
 368, followed. 
 
 Watson V. Mid Wales Ry. Co., (1867) 
 36 L. J. C. P. 285, distinguished. Bank of 
 Montreal v. Tvdhope, 21 M. R. 380. 
 
 6. Refusal of cheque — Reasonable time 
 
 The plaintiffs, Todd & Armstrong, 
 carried on business in partnership and 
 had an account with the defendants. On 
 a Friday the bank was served with an 
 order attaching all moneys due by the 
 bank to the plaintiff Todd and one Poulin. 
 On Saturday two of the plaintiff's cheques 
 aggregating $401 were presented and 
 refused, the bank not having by that time 
 determined what position it should assume. 
 
 In an action for damages for such 
 refusal the trial judge told the jury that, 
 if they were of opinion that the baik had 
 exceeded a reasonable time for making aU 
 necessary inquiries for their protection, 
 the damages should be substantial but 
 temperate. The jury found a verdict 
 for the plaintiff for $1000. 
 
 Held,!. That thpre was no misdirection. 
 
 2. That the hank had acted with 
 proper, reasonable despatch; that this 
 was a question for the jury; but that, as 
 the jury had misconceived the rights of 
 the parties, there should be a new trial. 
 
 3. That the damages were unreasonable 
 and unjust. Todd v. Union Bank of 
 Canada, 4 M. R. 204. 
 
 7. Sale of goods — Bank Act, ss. 64 & 
 6&—Sale of Goods Act, 1896, s. 11, s. 12, 
 s-s. 1 — Contract of Sale — Consideration — 
 Warranty of title to goods. 
 
 Under section 68 of The Bank Act, 
 security may be taken from the owner of 
 horses for an existing debt by a bUL of 
 sale of the horses which expressly states 
 that it is taken only by way of additional 
 security for the debt, and section 64 of 
 the Act does not prevent the Bank from 
 recovering on promissory notes made in 
 its favor by a person who purchases the 
 horses from the transferor. 
 
 Section 12, s-s. 1, of The Sale of Goods 
 Act, 1896, does not prevent the recovery 
 by the Bank of the price of horses sold 
 under such circumstances; ~ for, . under 
 sub-section (c) of section 11, a breach of 
 the implied condition that the seller of 
 goods has a right to sell them could be 
 treated only as a breach of warranty and 
 
 not as a ground for repudiating the 
 contract. 
 
 Held, also, under the circumstances set 
 out in the statement of case, that the 
 contract of sale between the vendors of 
 the horses and the defendant was com- 
 pleted, that the property in the horses 
 had passed to him and that he was Uable 
 for the price agreed on. Bank of Hamilton 
 V. Donaldson, 13 M. R. 378. 
 
 8. Security for debt to Bank — Cove- 
 nant to pay creditors of covenantee — Trust 
 in favor Of stranger to the deed — Relief 
 against trustee not answering where co- 
 defendants, the cestuis quetrustent, succeed 
 in their defenc&r-Specific performance of 
 agreement to pay plaintiffs' creditors. 
 
 The plaintiff's husband had been 
 carrying on a mercantile business and, 
 having got into difficulties, assigned his 
 estate to a trustee for his creditors of 
 whom the defendant Bank was one. Ail 
 arrangement was then made for the 
 purchase of the stock in trade by the 
 plaintiff, who applied to the Bank for 
 assistance in making the payments. 
 This was afforded on the plaintiff assuming 
 the whole of the husband's indebtedness 
 to the Bank and giving mortgages there- 
 for upon certain real estate and the stock 
 in trade. The Judge . who heard the 
 cause found that there was a novation, 
 that the husband was thereby discharged 
 and the wife accepted as the sole debtor. 
 Subsequently the Bank pressed for further 
 security and a new mortgage on the stock 
 was taken, which, besides the usual 
 proviso for redemption, seizure and sale 
 in case of default, etc., and for application 
 of the proceeds, and covenants for pay- 
 ment, contained a covenant on the part 
 of the Bank to pay "the commerciid or 
 trade indebtedness of the mortgagor and 
 the expenses of running the business, etc., 
 from and out of the proceeds of the sale 
 of said goods, chattels and stock in trade, 
 and the proceeds of the collections of said 
 book accounts and debts now being 
 assigned to them, but so as that the same 
 shall not increase the present indebtedness 
 due from said mortgagor to said mort- 
 gagees beyond the amoimt now due for 
 principal under these presents and any 
 interest due or accruing due thereon, to 
 said mortgagees as hereinbefore provided." 
 
 This covenant of the Bank was given 
 to enable the plaintiff to obtain credit in 
 carrying on her business. 
 
 The plaintiff, aa part of the same 
 arrangement, kept her bank account with 
 
79 
 
 BANKS AND BANKING. 
 
 80 
 
 the defendant Bank and deposited with 
 it from day to day the receipts" from her 
 business, and made all payments in 
 comiection therewith by cheques against 
 this account except petty cash items. 
 
 On or about 1st March, 1893, the 
 plaintiff being indebted to the Bank in 
 the sum loi $5975.00 and being id default, 
 the Bank entered /upon the premises, tqok 
 possession of the Jiroperty a&d sold both 
 land and stock in trade, having completed 
 ' the transfers and received the purchase 
 money'before the filing of the bill of com- 
 plaint herein. The amount thus reaUzed 
 was not sufficient to pay the plaintiff's 
 indebtedness to the Bank. The plaintiff 
 then filed this bill to set aside the land 
 mortga;ges as having been taken to secure 
 a fresh advance of money and therefore 
 void under the Banking Act, and among 
 other things to compel specific perfor- 
 jnance of the agreement of the defendant 
 Bank to pay the commercial or trade 
 debts of the plaintiff out of the money 
 thus reahzed; but the Bank claimed the 
 right of set-off. ' 
 
 Held, (1) That the securities taken 
 were valid under s. 48 of the Banking 
 Act then in force, R .S. C, c. 120. 
 
 (2) That the plaintiff had no equity 
 -under the circumstances to compel the 
 
 Bank to perform its covenant to pay her 
 creditors without offering to perform the 
 agreement on her part, and to pay her 
 debt to the Bank. 
 
 (3) That, imder the circumstances, no 
 trust was created by the said covenant of 
 the Bank in favor of the creditors referred 
 to therein, such covenant having been 
 intended to refer only to the proceeds of 
 the plaintiff's sales and to deposits and 
 collections of book-debts while the busi- 
 ness was bang carried on, and having 
 been given only with a view to enable the 
 plaintiff to. keep the business going. 
 
 Gandy v. Oandy, 30 Ch. D. 67; Gregory 
 V. Wilhams, 3 Mer. 582, referred to on 
 this .point. 
 
 The purchaser of the mortgaged land 
 sold by the bank was made a party to 
 the suit, and the biU claimed that the 
 sale to liim was invalid and asked that 
 the deed to him shotild be set aside and 
 a declaration made that he held merely 
 as trustee for the Bank. He did not 
 defend, and the biU was taken pro confesso 
 against him. 
 
 Held, nevertheless, that, as thp case 
 failed against the "Bank, no decree could 
 be made against the purchaser, and the 
 bill should be dismissed as against both 
 
 defendants. Gillies v. Commercial Bank 
 of Manitoba, 10 M. R. 460. 
 
 9. Winding up of bank — Interest to 
 he allowed to creditors — "Acceptance" of a 
 bill by a Bank. -- 
 
 On the application of the liquidators of 
 the bank for the direction of the Court ' 
 as to the allowance of interest to the 
 several classes of creditors other than 
 noteholders, 
 
 Held, that, unless there is a surplus of 
 assets available after payment of the 
 principal of the debts, all interest ceases 
 after the commencement of the winding 
 up. 
 
 If, however, there should be any funds 
 available for the purpose, interest should ' 
 be allowed as follows: ,^ 
 
 Depositors who before the winding up 
 had been receiving interest without 
 written agreement, and depositors entitled 
 to interest by special agreement, should 
 now he allowed interest at the agreed on 
 rates, just as if /the bank were not being 
 wound up, and any dividends paid them 
 should be appUed, first in payment of the 
 interest accrued, and then on account of 
 principal in the ordinary way. 
 
 Depositors whose accounts did not bear 
 interest and general creditors can only 
 claim interest 3 they have made a demand 
 in writing upon the liquidators imder the 
 statute 3 & 4 William IV., c. 42j s. 28, 
 "with notice that interest will be claimed 
 from the date of such demand until the 
 time of payment," and then they are 
 entitled to interest at six per cent, per 
 annum. 
 
 Holders of drafts and bills of exchange 
 issued by the bank, drawn either on its 
 own, branches, or on other banks or 
 bankers who acted as agents of the bank, 
 wiU be entitled under s. 5, s-s. 2, of The 
 Bills of Exchajige Act to treat them either 
 as biUs of exchange or promissory notes 
 of the bank, and can claim interest at 
 six per cent, from-the time of presentment 
 for payment to the drawees under section 
 57 of the Act. The fact that these 
 holders knew that an immediate present- 
 ment for payment would be useless does 
 not entitle them to interest from the date 
 of the winding up. ( In re East of England 
 Banking Company, L. R. 4 Ch. 14, and 
 section 46 of The BUls of Exchange Act. 
 
 Holders of cheques drawn on the bank 
 by customers, accepted or certified by 
 the ledger keepers in the ordinary way 
 and charged to the customers' accounts, 
 will not be entitled to interest, unless 
 
81 
 
 BAR TO SUBSEQUENT ACTION. 
 
 82 
 
 they have served the demand and notice 
 under the statute 3 & 4 WiUiam IV., as 
 in the case of other ordinary creditors. 
 
 Such an acceptance or certifying of a 
 cheque by the bank cannot be held to be 
 an "acceptance" of it so as to make it an 
 accepted biU within the meaning of s. 17, 
 s-s. 2, of The Bills of Exchange Act, 
 especially in view of the provisions ot 
 section 90 in the case of an instrument 
 "signed" by a corporation, the impression 
 of the name of the bank by the rubber 
 stamp in use for certifying cheques not 
 being equivalent to seaUng the instrument 
 by its corporate seal. 
 
 Be Commercial Bank of Manitoba. Re 
 claims for Interest on Debts Proved, 10 M. 
 R. 187. 
 
 See Bills and Notes. 
 
 — Eqtjitable Assignment, 1. 
 
 — Interpleader, V, 3. 
 — • Warehouse Receipts. 
 
 BAR TO SUBSEQUENT ACTION. 
 
 See Negligence, VII, 6. 
 
 BARRISTER. 
 
 See Solicitor. 
 
 BAWDY HOUSE. 
 
 See Criminal Law, III, 2, 3. 
 
 BENEVOLENT SOCIETY. 
 
 See Life Insurance, 1, 2, 3. 
 
 BESETTING. 
 
 See Injunction, I, 6. 
 
 BILLS AND NOTES. 
 
 III. Alterations. 
 
 IV. CONBIDBBATION. 
 
 V. Construction and Operation. 
 VI. Execution and Delivert. 
 VII. Form and Contents. 
 VIII. Indorsbmeistt and Transfer. 
 IX. Lost Bills and Notes. 
 X. Presentment and Notice of Dis- 
 honor. 
 
 \ I. Acceptance. 
 
 1. Firm name- 
 fere. 
 
 ■Notice of accotrttnoda- 
 
 I. Acceptance. 
 II. Actions on. 
 
 A biU was drawn upon M. & McQ. 
 for goods supplied to M., McQ. & 
 Co. There was in fact no such firm 
 as M. & McQ', and the bill being 
 taken to M., McQ. & Co., their man- 
 ager, who had power to accept in the 
 name of the firm, accepted in the name 
 of M. & McQ. 
 
 Held. That the firm was not Uable. 
 
 The acceptance of a bill, payabte at the 
 office of the drawer, carries with it notice 
 that the-, acceptance is accommodation. 
 Quebec Bank v. Miller, 3 M. R. 17. 
 
 2. Payable when debentures sold— 
 
 Evidence — Identity of debentures. 
 
 The defendants accepted a bill of 
 exchange drawn by the Town of P. 
 payable "when the balance of debentures 
 ($37,000) in our hands are sold by us, 
 and proceeds received, and our claim as 
 at tlus date and interest to date of pay- 
 ment has been paid." The defendants, 
 at that time held debentures of the Town 
 of P. as security for certain advances and 
 with power to seU them at a certain 
 figure. They assumed the debentures at 
 that figure; notified the town that the 
 debentures had been sold; and enclosed 
 an account crediting the town with the, 
 amount. The defendants asserted that 
 their claim included certain ofher deben- 
 tures of the town, which "they then held 
 as owners. 
 
 Held, 1. That evidence was admissible , 
 to identify the debentures referred to in 
 the acceptance. 
 
 2. That the debentures had been "sold," 
 and the proceeds had been received 
 within the meaning of the acceptance. 
 
 3. Upon the evidence, the "claim" 
 must be limited to the advances, and did 
 not include the other debentures. Ontario 
 Bank v. McArthur, 5 M. R. 381. 
 
83 
 
 BILLS AND NOTES.' 
 
 84 
 
 II. Actions on. 
 
 Promissory note— Payable ten days 
 after demand — Demand — Waiver of pre- 
 sentment — Statute of Limitations. 
 
 Action upon a promissory note made 
 by defendant, dated 16th May, 1883, 
 payable "ten days after, demand after- 
 date," at the Federal Bank of Canada, 
 Winnipeg. On 29th June, 1883, and on 
 9th July, 1883, plaintiff went to defendant 
 and asked him for money; on each occasion 
 defendant paid him $75; both payment.'! 
 ' were^ jon their respective dates, indorsed 
 on the back of the note by defendant and 
 signed by the plaintiff. The plaintiff's 
 attorney gave evidence that in June, 
 1883, prior to the demand of the 29th, 
 he saw the defendant, who asked hiin not 
 to make a demand for money but to 
 wait until he could see |)laintiff, and he 
 subsequently told him he- had come to 
 some understanding with the plaintiff, or 
 something to that effect. ' 
 
 The action was commenced in Decem- 
 ber, 189CL 
 
 Held, that payment of the note was 
 demanded on 29th June, 1883, when the 
 $75 was paid by defendant on account of 
 the note, and the Statute of Limitations 
 began to run on 12th July, 1883. Plain- 
 tiff's right to sue was barred in 1889. 
 
 Held, also, that there was a waiver of 
 presentment at.the Bank by the defendant. 
 Sparham v. Carley, 8 M. R. 246. 
 
 III. AUTEEATION. 
 
 1. Proinissory note — Recovery upon 
 note in original condition — Variance in 
 corporate name. 
 
 A company being indebted to the 
 plaintiffs, the comjaany's manager agreed 
 to procure and deliver to the plaintiffs a 
 note signed by some of the officers of the 
 company. He delivered the note sued 
 upon. It was proved that after the note 
 had been' signed, .but before its delivery, 
 the manager altered the note by inserting 
 the words "jointly and severally.'^ The 
 plaintiffs were ignorant of this fact -at 
 the time. 
 
 Held, that the note might be sued upon 
 in its original condition. 
 
 A note was made by fiUing up an 
 engraved form. Between the words after 
 date" and "promise to pay" the space 
 left for the usual words "1" or "we" was 
 very small, and the words "jointly and 
 severally" could not have been written in 
 the space. 
 
 Held, that in such a case the mere fact 
 that the words "jointly and severally" 
 are plainly interhned by being written 
 over the place where they are intended to 
 be read, out in the same handwriting as 
 the rest of the note, is, not sufficient 
 notice of an alteration. 
 
 A note was made payable to The 
 Waterous Engine Works, but was declared 
 upon as payable to The Waterous Engine 
 Works Company, Limited. 
 
 Held, no variance. 
 
 The word "Limited" is no part of the 
 name of a company incorporated under 
 the Dominion Joint ' Stock Company's 
 Act. Waterous Engine Works Co., v. 
 McLean, 2 M. R. 279. 
 
 2. Of indorsement of promissory 
 note — Holder for value without notice— 
 Partnership for 'non-trading purposes. 
 
 A bank, with knowledge that the 
 partnership is a non-trading one, has no 
 right to discount for one of the partners 
 for his own purposes a promissory note 
 made in favor of the firm, although 
 indorsed in the name of the firm, and will 
 be Hable to account to the other partners 
 for his share of the proceeds in the absence 
 of circumstances creating an_estoppeL 
 
 Levinson v. iorae,' (1862) 13 C. B. N. S. 
 278; Fisher v. lAntm, (1898) 28 O. R. 322, 
 and Garland v. Jacornb, (1873) L. R. 8 
 Ex. 216, followed. 
 
 2. The conversion of a special indorse- 
 ment on ^ promissory note into an 
 indorsement in blank by striking out the 
 words "Pay to the order of the Home 
 Bank of Canada," above the signatures 
 by the firm and the individual partners 
 on the back, was a circumstance sufficient 
 to put the defendant bank on its inquiry 
 as to the right of one of the partners to 
 discount it for himself. Pickup v. North- 
 ern Bank, 18M. R. 675. 
 
 IV. Consideration. 
 
 1. Holder in due course— BiWs of 
 Exchange Act, R. S. C. 1906, c. 119, ss. 
 53 (6), 54, 5&^~ Unfair dealing — Setting 
 ecside transaction for .fraud or illegality 
 — Recovery of money paid under protest. 
 
 1. The mere ex^tence of a UabUity of 
 a customer to a bank on a promissory 
 note not yet due is not a sufficient con- 
 sideration, imder section 53 of the Bills 
 of Exchange Act, for the transfer by the 
 customer to the bank of the proinissory 
 note of a third party as collateral security 
 
85 
 
 BILLS AND NOTES 
 
 86 
 
 so as to constitute the bank the holder in 
 due course of such promissory note or to 
 give the bank a better title to it than the 
 customer had as against the maker, unless 
 there is evidence that such note was 
 transferred pursuant to a previous agree- 
 ment to give security. 
 
 Canadian Bank of Commerce v. Wait, 
 (1907) 1 Alta. 68, followed. 
 
 Cwrrie v., Misa, (1875) L. R. 10 Ex. 
 153, and McLean v. Clydesdale Banking 
 Co., (1883) 9 A. C. 95, distinguished on 
 the ground that the debts there secured 
 were overdue at the time the collaterals 
 were received. 
 
 2. When a promissoiy note has been 
 given in respect of an indebtedness 
 incurred, that indebtedness will not 
 furnish a consideration for another 
 simple contract m^de during the 
 currency of the note, the original con- 
 sideration having beeil merged in the note. 
 
 ■HopkiriS-Y. Logan, (1839) 5 M. & W. 
 241; Boscorla v. Thomas, (1842) 3 Q. B. 
 234, and Haye v. DuttoUf (1844) 7 M. 
 & G. 815, foUowed. 
 
 The defendant was a yotmg man 
 without experience and of little feusiness 
 capacity and without independent advice 
 when he was induced by one Bartlett to 
 •enter into a very disadvantageous bargain 
 for the sale of his land, which he could 
 not carry out. Bartlett then made false 
 representations as to the defendant's 
 Uability to him for damages and, assisted 
 by his ,own solicitor, succeeded in pro- 
 curing from the defendant the promissory 
 note for $1015 sued on in settlement of 
 the supposed damages. He then indorsed 
 over this note to the plaintiffs, to be held 
 as collateral security for a note of his 
 own which was then current. 
 
 Held, that the issue of the note was 
 affected with fraud or illegahty, within 
 the meaning of section 58 of the Bills of 
 Exchange Act, that-the dealings between 
 Bartlett and the defendant were unfair 
 and should be set aside, and that the 
 plaintiffs, not being holders in due course 
 and having no better title to the note 
 than Bartlett, ODuld not recover in an 
 action against the defendant upon it. 
 
 Evans v. Llewellin, (1787) 1 Cox, 333: 
 Clark V. Mcdpas, (1862) 4 De G. F. & J. 
 401; Baker v. Monk, (1846) 4 De G. J. 
 & S. 388; Fry v. Law, (1888) 40 Ch. D. 
 322; Slator v. Nolan, (1876) Ir. R. 11 Eg. 
 367, and Waters v. Dmnelly, (1885) 9 
 O. R. 391, foUowed. 
 
 Hdd, also, that the defendant was 
 entitled to recover from the plaintiffs the 
 
 amount which he had paid them imder 
 protest to prevent the seizure and sale of 
 his goods under a chattel mortgage which 
 he had been induced to give to Bartlett 
 to secure the note in question, and which 
 Bartlett had assigned to the plaintiffs. 
 Bank of British North America v. McComb, 
 21 M. B. 58. 
 
 2. Life IitsuT&nce— Liability on note 
 for yreirdum when policy voided by non- 
 payment. 
 
 A person who applies for and receives 
 a policy of life insurance and gives his 
 promissory note for the amount of the 
 first premium, payable in three months, 
 cannot, by refusing to pay the note and 
 returning the policy, avoid liability for 
 ■ the full amount of the note, although the 
 policy becomes void by reason of such 
 non-payment. 
 
 Manufacturers Life Ins. Co. v. Gordon, 
 (1893) 20 A. R., per Maclennan, J., at 
 page 335, followed. 
 
 Royal Victoria Life Ins. Co. v. Richards, 
 (1900) 31 O. R. 483, distinguished. Man- 
 ufacturers Life Insurance Co. y. Rowes, 
 16 M. R. 540. 
 
 3. Partial failure of. 
 
 In an action upon a promissory note, 
 defendant showed that it was given in 
 part payment of a binding machme. He 
 had, however, kept the machine, used it 
 for two years, and had not offered to 
 return it. He claimed, moreover, that the 
 plaintiff had agreed to furnish him with 
 repairs for-4he machine. 
 
 Held, 1. That the defective character 
 of the machine could be no defence to an 
 action upon the note. 
 
 2. That no action for failure to furnish 
 . the repairs could be sustained, because the 
 contract contained certain conditions 
 which were not performed by the defend- 
 ant, and which were conditions precedent 
 to his right to make any claim under it. 
 O'Donohue v. Swain, 4 M. R. 476. 
 
 4. Partial failure oi— Election to affirm 
 contract. 
 
 The defendants bought cattle from the 
 plaintiff, gave her the promissory notes 
 sued on for the price and took and kept 
 the cattle; aU parties believing that the 
 plaintiff had an absolute title to them. 
 It was subsequently ascertained that the 
 plaintiff had only a life interest in the 
 cattle. After learning this fact, defend- 
 ants paid a year's interest on the notes 
 
87 
 
 BILLS AND NOTES. 
 
 and neither returned nor offered to return 
 the cattle. 
 
 Held, that defendants were liable on 
 the notes, as there was no fraud and no 
 total failure of consideration. They were 
 bound to repudiate the transaction at 
 once on learning of the defect in plaintiff's 
 title, if they wished to 'object, and must 
 by their conduct be held to have elected, 
 with knowledge of the facts, to aflBrm 
 their purchases. Primeau v. Movchelin. 
 
 Primeau v. Pontel, 15 M. R. 360. 
 
 i 
 
 6. Release from imprisonment — 
 
 Objections attrial. 
 
 1. Release from imprisonment in default 
 of payment of a fine imposed on con- 
 viction for an offence against The Fires 
 !Preventi6n Act, R. S. M., c. 60, may be 
 a good consideration for a promissory 
 note to secure payment of the fine and 
 costs. 
 
 2., When no question is raised at the 
 trial before the County Court Judge as to 
 the sufficiency of the proof of the present- 
 ment of a promissory note, it is not open 
 to the defendant to raise the question at 
 the hearing of an appeal from the verdict, 
 as the Judge might h^ve given an oppor- 
 tvmity to supplement the evidence, li the 
 question had been" raised before him. 
 Proctor V. Parker, 12 M. R. 528. 
 
 V. CoNSTHirCTION AND OPERATION. 
 
 1. Additional provisions in note— - 
 
 Negotiable , instrument. 
 
 I An instrument containing an uncon- 
 ditional promise to pay a sum certain on 
 a date fixed does not lose its character of 
 a negotiable promissory note by reason of 
 its also containing an agreement to pay 
 an attorney's fee if suit is brought thereon, 
 a consent that any justice of the peace 
 shall have jurisdiction to try such suit, 
 a waiver of presentment fot payment, 
 notice of no^i-jJaymentj etc. and of dili- 
 gence in bringing smt, a consent by 
 sureties that time of payment may be 
 extended without notice and an acceler- 
 ating clause making the whole amount 
 due on failure to pay interest. — 
 
 Such a note is, therefore, transferable 
 by indorsement without'more: per Ryan, 
 Co. J. in Davis V. Butler, 1 W. L. R. 85. 
 
 2. Additional provisions in note — 
 
 lAen, note. 
 
 The instruments sued on in these cases 
 
 contained the usual provisions of a 
 
 -promissory note with additional provisions 
 
 to the effect that the title, ownership and 
 property for which they were given 
 should not pass from the payees imtil 
 payment in full, that if the notes were 
 not paid at matxuity the vendors might 
 take possession of ^the machinery for 
 which they were given and «ell the same 
 at pubUc or private sale, the proceeds less 
 the expenses to be -applied on the notes, 
 and that such action shouli be without 
 prejudice to the right of the vendors to 
 forthwith collect the balance remaining 
 unpaid. 
 
 Held, that the; instruments could not 
 be regarded as negotiable promissory notes, 
 because the added provisions were matters 
 entirely unwarrMited by sub-section 3 of 
 section 82 of The BiUs of Exchange Act, 
 1890, as they could in no sense be treated 
 as merely "a pledge of collateral security 
 with authority to sell or dispose thereof;" 
 and the statute, having set out certain 
 additions that might be made to the simple 
 promise to pay, impUedly excluded others. 
 
 Kirkwood v. Smith, [1896] 1 Q. B. -582, 
 followed. 
 
 Mercfiants' Bank v. Durdop, (-1894) 9 
 M. R. 623, not followed. 
 
 Dominion Bank v. Wiggins, (1894) 21 
 A. R. 275, and Prescott v. Garland, (1897) 
 34 N. B. R. 291, considered. Bank of 
 Hamilton v. Gillies. Bank of Hamilton v. 
 Murray, 12 M. R. 495. 
 
 3. Payable upon contingency. 
 
 A note payable at a specified date, with 
 interest from the date of the note, con- 
 tained a proviso that "if the defendant 
 sshould sooner dispose of or sell certain 
 lands, mentioned and described in a 
 memorandum on said note, which the 
 defendant then owned, then the said note 
 should be payable on demand at said 
 bank." 
 
 Held, nevertheless, that the tune for 
 payment' was certain and the document 
 a good promissory note. Elliott v. Beech, 
 3 M. R. 213. 
 
 4. Payable on contingency-^buni^ • 
 
 • Court — Statement of claim. 
 
 The defendant gave the plaintiff com- 
 pany two promissory notes, both dated 
 25th April, 1891, one payable 1st De- 
 cember, 1891, and the other payable 1st 
 December, 1892. Each note contained a 
 proviso that, "if for any_ good reason 
 Massey & Co. should consider this note 
 insecure, they have fuU power to declare 
 it, and all other notes made by me in 
 their favor, due and payable at any 
 
89 
 
 BILLS AND NOTES. 
 
 90 
 
 time.' ' On 25th Marohj 1892, the plaintiff 
 company declared the second note due, 
 because the first one was unpaid, and 
 brought an action on the same in a 
 County Co\u't. 
 
 Held, that the plaintiff company had 
 power to make the note payable and 
 actionable, upon the happening of the 
 event mentioned,* before maturity by 
 effluxion of time. 
 
 The plaintiff's statement of- claim filed 
 in the Coimty Court contained a copy of 
 the note, but did not set out the con- 
 tingency on which the note waa declared 
 payable. 
 
 Reld, that it was a sttfficient statement 
 of claim. Massey Manufacturing Co. v. 
 Perrin, 8 M. R. 457. 
 
 5. Statement of consideration for 
 which note given — Condition attached to 
 promise to pay — Executory consideration. 
 
 Plaintiffs sued as indorsees of two 
 promissory notes made by defendant, 
 payable to the Watson Manufacturing 
 Company, which stated on their face that 
 'y they were given for a binder, and that 
 the property therein should remain in the 
 payees until payment of the note in full; 
 also that the payees were to provide all 
 repairs required for the binder, and any 
 improvements that might be added to 
 their binders before the maturity of the 
 note. 
 
 Held, that these instruments were 
 negotiable promissory notes, notwith- 
 standing the special provision at the end, 
 which should be construed as a memor- 
 andum to show that the payees had 
 promised to provide the things mentioned 
 as part of the consideration for the 
 - defendant's promise to pay the notes, 
 and not as a condition attached to the 
 absolute proniise io pay. 
 
 Drury v. Macaulay, 16 M. & W. 146, 
 and Shenton v. James, 5 Q. B. 199 dis- 
 tinguished. 
 
 Merchants Bank v. Dunlop, 9 M. R. 
 623. 
 
 Not followed, Bank of Hamilton v. 
 Gillies, 12 M. R. 495. 
 
 VI. Execution and Delivery. 
 
 1. Delivery in blank with authority 
 to fill up. 
 
 To a declaration upon a note, by 
 indorsee against maker, defendant pleaded 
 that G. & Co., being indebted to McL. & 
 Co. delivered to them a blank not^ with 
 authority to fill it up with the amount of 
 
 the indebtedness and payable within two 
 months, and when so filled up, but not 
 otherwise, to deliver it as the note of G. 
 & Co.; and that after payment of the 
 indebtedness, and after more than 15 
 months, and after revocation of all 
 authority by lajjse of time, by the express 
 acts of the parties and by the dissolution 
 of the firm of G. & Co., the said McL. & 
 Co. filled up and delivered the note to 
 the plaintiffs. 
 
 Held, upon demurrer, that the plea 
 was. bad. Merchants Bank v. Good, 6 M. 
 R. 339. 
 
 2. Non-endorsation by co-surety — 
 
 Pleading — "Due Notice." 
 
 Defendant, sued as endorser, pleaded 
 that he became a party to the note 
 merely for the accommodation of A. and 
 upon the condition that B. should also 
 become an endorser as his co-surety, and 
 that B". did not endorse. 
 
 Held, That the defendant was not 
 liable, even at the suit pf an innocent 
 holder for value. Awde v. Dixon, 6 Ex. 
 869, followed. 
 
 Held, An allegation "of all which the 
 plaintiff had due notice" imports such 
 notice as alone wUl constitute a good 
 ground of defence — notice at the time 
 the plaintiffs received the note. 
 
 Ontario Bank v. Gibson, 3 M. R. 406. 
 
 Affirmed, 4 M. R. 440. 
 
 Distinguished, First National Bank v. 
 McLean, 16 M. R. 32. 
 
 3. Signature obtained by false rep- 
 resentation — Rights of holder in due 
 course without notice — Bills of Exchange^ 
 Act, 1890, c. 33, ss. 29, 38. 
 
 According to findings of fact at the 
 trial, the evidence did not clearly show 
 that the promissory notes sued on had 
 been signed by the defendants, and it 
 was proved that, if they had signed them, 
 they did so without knowing that they 
 were promissory notes and in the behef, 
 induced by the false representations of 
 the agent of the payee, that the docu- _ 
 ments they signed were petitions to the 
 Government for a road. 
 
 Held, following Foster v. McKinnon, 
 (1869) L. R. 4 C. P. 704, and Lewis v. 
 Clay, (1897) 77 L..T. 653, that, notwith- 
 standing the language of sections 29 and 
 38 (6) of the Bills of Exchange Act, 1890, 
 the defendants were not Uable~ to the 
 plaintiffs, although they were holders in 
 good faith, for value and without notice 
 of "any defect or fraud, and had acquired 
 
91 
 
 BILLS AND NOTES. 
 
 92 
 
 the notes during their currency. Alloway 
 V. Hrahi, 14 M. R. 627. 
 
 4. Stolen, cheque— ffoZder in due 
 course — Bills of Exchange Act, R.S.C. 1906, 
 c. 119, ss. 2, 39, 40 (2) and 56. 
 
 Delivery or issue, intendiag it to be 
 used, of a cheque on a bank for a sum of 
 money payable to A.B. or bearer, although 
 signed by the drawer and complete in 
 form, is, under sections 39, 40 (2) and 
 sub-sections (f) and (i) of section 2 of 
 the Bills of Exchange Act, R. S. C. 1906, 
 c. 119, an essential dement in the liability 
 of the drawer to one who afterwards 
 cashes it. 
 
 Defendant had signed such a cheque 
 and left it in his desk from which it was 
 stolen. _ ■ 
 
 Held, that he was not liable upon it to' 
 the plaintiff who had cashed it. 
 
 Arnold V. Cheque Bank, (1876) 1 C. P. D. 
 5S4:;Baxendale V.Bennett, (1878) 3 Q.B.D. 
 531, and Smith v. Prosser, [1907] 2 K. B. 
 736, followed. _ 
 
 Ingham v.- Primrose, (1859) 7 C. B. 
 N; S. ,82, not followed. McKenty v. 
 Vanhorenback, 21 M. R. 360. 
 
 _ VII. Form and Contents, i 
 
 1. Doubtful dpcumeaat—Bill of ex- 
 
 ^ change or- agreemenf — Acceptance. 
 
 Defendants accepted two drafts, in the 
 foUowing words: — "We will keep. the sums 
 of $605 and $405,25, from the first estimate 
 of McLean and,Moran & Co., as requested 
 above, provided they have done sufficient 
 .work to earn that sum." 
 ^ Held, to be proper bills of exchange. 
 McLean v. Shields, 1 M. R. 278. 
 
 2. Promise to paiy^^Garnishment. 
 An instrument in the following form: — 
 
 "Winnipeg, June 20th 1907." 
 "Received from A. B. the siun of five 
 ' hundred dollars advance to be repaid at 
 ejoDiration of 9 months." 
 
 "C. D." 
 is a negotiable promissory note, and the 
 money payable under it is not attachable 
 by garnishment proceedings before its 
 maturity. Hoisted, v. Herschmann, 18 
 M. R. 103. -' 
 
 VIII. Indorsement and Transfer. 
 
 1. After default in payments /ToWei- 
 in due course — Bills of Exchange Act, 1890, 
 s. 29^— Rescission of contract — Plea of 
 
 fraud — Amendment asking for rescission — 
 Restitutio in integrum. 
 
 The indorsee of a promissory note 
 made payable - with interest, payable 
 annually, who acquired the note alter 
 default in payment of one of the annual 
 interest instalments and with knowledge 
 of the default, is not a holder of the note 
 in due coinse as defined by section 29 of 
 the Bills of Exchange Act, 1890, an(i 
 defences of fraud and misrepresentation 
 set up by the makers of the note against 
 the payees are available as against such 
 indorsee. See foot note (o). 
 
 Jennings v. Nwpanee Brush Co., (1884) 
 4 C. L. T. 595, foUowed. 
 
 Defendants, who had given their promise 
 sory notes for the price of a horse pur- 
 chased by them, had been defrauded in 
 the transaction, but did not acquire 
 certain knowledge of the fraud until after 
 the death of the horse. 
 
 Held, (1) That they were not too latff 
 in exercising their right to rescind the- 
 contract, although they took no steps to 
 do so until they set up the plea of fraud 
 in this action.- • ' , 
 
 lie V. Diamond, (1905) 10 O. L. R. 
 567, followed. 
 
 (2) Defendants had a right to rescind 
 without restitution in this case, as the 
 horse had died without any default or 
 neglect on.their part. 
 
 Head v. Tattersall,_ (1871) L. R. 7 Ex- 
 7, followed. 
 
 Moore V. Scott, 16 M. R. 492. 
 
 (a) But see, now. Union Investment Co- 
 V. Wdls, 39 S. C. R. 325, next case. 
 
 2. After default (o pay interest^ 
 
 "Overdue" hill — Notice — Holder in good 
 faith — Bills of Exchange, Act — Common 
 Law rule. 
 
 Where interest is made payable period- 
 ically during the currency of a promissory 
 note, payable at a certain time after date, 
 the note does not become overdije within 
 the meafdng of sections 56 and 70 of the 
 "Bills of Exchange Adt," merely by 
 default in the payment of an instalment 
 of such intei:est. 
 
 The doctrine of constructive notice is 
 not applicable to bills and notes trans- 
 ferred for value. 
 
 Judgment appealed from reversed^ 
 Idington and Maelennan, JJ., dissenting. 
 
 Union Investment Company v. Wdls, 
 39 S.-C. R. 625. 
 
93 
 
 BILLS AND NOTES. 
 
 94 
 
 3. Authority to indorse — Holdfr in 
 due course — -Bills of-Exchange Act, s. 56 — 
 Consideration... " 
 
 In consideration of the defendant Bank 
 making fresh advances to a company of 
 which the plaintiffs were directors and 
 one Finch was president and managing 
 director, Finch pledged the promissory 
 note in question, which was a note of the 
 Company payable to the plaintiffs and 
 specially endorsed by them to the Bank, 
 as collateral security to the indebtedness 
 of the Company generally, and the Bank 
 made the fresh advances accordingly. _ 
 
 Finch only had authority from the 
 plaintiffs to get the note discounted by 
 the Bank for the account of the Company, 
 but the Bank had no notice of his want 
 of authority to pledge the note as he did. 
 
 Held, Richards, J. A., dissenting, (1) 
 The promise of the Bank manager to make 
 fresh advances and his actually malpag 
 them was a good consideration for the 
 pledge of the note, although the mere 
 existence of the antecedent debt on 
 cun'ent notes would not have been. 
 
 (2) The Bank was a holder in due course 
 of the note under section 56 of the Bills 
 of Exchange Act, notwithstanding the 
 want of authority on the part of Finch to 
 pledge it as he did. 
 
 Lhyds Bank v. Cooke, [1907] 1 K. B. 
 794, and Brocklesby v. Temperance Per. 
 Bldg. Soc, [1895], A. C. 173, followed. 
 
 (3) The note having been pledged as 
 collateral to the general account of the 
 Company, the Bank was entitled to hold 
 it in accordance with the contract, not- 
 withstanding that the fresh advances, 
 which constituted the consideration for 
 the contract, had been paid off. Cox v. 
 Canadian Bank of Commerce, 21 M. R. 1. 
 
 Appeal to Supreme Court dismissed, 
 46 S. C. R. 564. 
 
 4. By defendant as surety— fle-ira- 
 dorsement by payee above defendani's 
 indorsement. _ - 
 
 Defendant being indebted to the 
 plaintiff .gave him his wife's promissory 
 note payable to Watson Bros, or order, 
 and indorsed by defendant. 
 
 The note being unpaid at maturity, 
 the plaintiff, who was the only member of 
 the firm of Watson Bros., indorsed the 
 name of Watson Bros, above defendant's 
 name on the note and then brought this 
 action declaring on a, note in favor of 
 Watson Bros., who indorsed the note to 
 defendant, who indorsed it to the plaintiff. 
 Defendant, amongst other aefences, 
 
 pleaded denying the indorsement by him 
 to the plaintiff, but did not allege that 
 the plaintiff was identical with Watson 
 Bros. 
 
 Held, that, although the identity 
 appeared on the evidence, as it was not 
 pleaded, the plaintiff's title to the note 
 was complete and he was entitled to 
 recover; also, that, if the identity had been 
 pleaded, the plaintiff could have replied 
 special circjunstances that would have 
 destroyed the prima facie effect of the 
 first indorsement by him. Peck v. 
 PUppori, 9 U. C. R. 73; Moffat v. Rees, 
 15 U. C. R. 527; Morris v. Walker. 15 
 Q. B. 589, followed. Watson v. Harvey, 
 10 M. R. 641. 
 
 5. By defendant as surety — Payee's 
 indorsement below defendant's. 
 
 H. being indebted to plaintiff, gave him 
 his promissory note payable to J. L. 
 Wells & Co., and kidorsed by defendant. 
 
 At the trial of an action on this note, 
 the indorsements on it appeared in the 
 following order: defendant,- J. L. Wells & 
 Co., and plaintiff. 
 
 . Held, that the plaintiff might recover 
 against tKe defendant, notwithstanding 
 thajt the note showed no indorsement by 
 the payees to the defendant and then by 
 defendant to plaintiff, and that all the 
 facts and circumstances attendant upon 
 the making, issue and transference of a 
 bill or note may be referred to for the 
 purpose of ascertaining the true relation 
 to each other of the parties who put their 
 signatures upon it, either as makers or 
 indorsers: McDonald v. Whitfield, 8 App. 
 Cas. 733; Watson v. Harvey, 10 M. R. 
 641 Wells V. McCarthy, 10 M. R. 639. 
 
 6. By one Baiik to another— BanJ; 
 
 cheque — Forgery — Ldability as between banks 
 for loss of money paid on forged cheque — • 
 Bills of Exchange Act, R. S. C. 1906, 
 ss, 50, 74, 133 (c). 
 
 One Jones, having stolen a gentiine 
 cheque on the plaintiff Bank for 86, 
 erased the name of the payee and the 
 amount, substituted the fictitious name 
 of William Johnson, and raised the 
 amount to $1000. He then indorsed the 
 name William Johnson and deposited the 
 cheque to his credit in the defendant 
 Bank. The defendants refused to advance 
 more than $25 on the cheque until they 
 should learn that plaintiffs would pay it. 
 Thgy then stamped the name of their 
 bank on the back of the cheque and put 
 it through the clearing house in the usual 
 
95 
 
 BILLS AND NOTES. 
 
 96 
 
 way, after which it was paid by the 
 plaintiffs. Defendants then honored 'the 
 ^ cheques of the forger for $800 more, 
 shortly after which the forgery was 
 discovered. 
 
 Held, that, under the rules of the clear- 
 ing hoiise and the practice among Win- 
 nipeg bankers, the stamping of the name 
 of the defendant bank on the back of the 
 cheque had the legal effect of an indorse- 
 ment in blank by the defendant bank and 
 that the defendants were hable to repay 
 the amount of the cheque to the plaintiffs, 
 either by the direct effect of the statute. 
 Bills of Exchange Act, 1890, s. 24 as 
 amended, ss. 38, 55 (c) (now R. S. C. 
 1906, c. 119, ss. 50, 74, 133 (c)), or because 
 of the. warranty to be implied from their 
 indorsement that the cheque was what it 
 .purported to be and that they were the 
 lawful holders. 
 
 Bank of Ottawa v. Harty, (1905) 12 
 O. L. R. 218, followed. 
 
 Leather v. Simpson, (1871) L. R. 11 Eq. 
 398, a.nd Smith V. Mercer, (1815) 6 Taunt. 
 76, distinguished. 
 
 London and River Plate Bank v. Bank 
 of Liverpool, [1896] 1 Q. B. 7, dissented 
 from. 
 
 Held, also, that the defendants' refusal 
 to pay outmore than $25 until after they 
 knew that plaintiffs had honored the 
 cheque made no difference. 
 
 Union Bank v. Dominion Bank, 17 
 M. R. 68. 
 
 Affirmed, 40 S. C. R. 366. 
 
 7. By unincorporated non-trading 
 Association. 
 
 The indorsement of a promissory note 
 payable to* the order of an unincorporated 
 non-trading association, such as a trade 
 tmion, with the name 'of the association 
 and the signatures of two or more of its 
 officers will not enable the person to 
 whom it is delivered so indorsed to sue 
 the maker upon it. 
 
 There is no vaMd method of indorse- 
 ment of such a'> note, so as to pass a title 
 to it under the Law Merchant, except by 
 the signature of all the members of the 
 association. Cooper v. McDonald, 19 M. 
 R. 1. 
 
 8. Holder in due couiae— Delivery on 
 condition of . signature by another joint 
 maker— Conirqet — Rescission — Elation to 
 affirm coiitract. 
 
 The defendants, thirteen in number, 
 and one Lee, formed a syndicate for the 
 purchase, of a stallion. The vendor's 
 
 agent afterwards^ induced the defendants 
 to sigp an agreement for the purchase and 
 promissory notes for the price on the 
 representation that he would get Lee to 
 put his name also on the notes. The 
 defendants then took possession of the 
 horse and used him for one season and 
 part of another when he died; Shortly 
 after signing the notes the defendants 
 became aware that Lee had refused to 
 sign the notes. They did not ask then 
 for a return of the notes or do anything to 
 indicate that they did not intend to be 
 bound by them. On the contrary, they 
 acted from that time as though the 
 syndicate was composed of themselves 
 alone, ignored Xee in the matter and 
 collected and retained the earnings of the 
 horse for themselves until he. died. 
 
 The vendor discounted the notes with 
 the plaintiffs who proved that they had 
 no notice or knowledge of any fraud or 
 irregularity in obtaining them. 
 
 Held, that the defendants, by their 
 course of conduct, had elected to affirm 
 the purchase, and could not now repudiate 
 their liability on accoimt of any fraud or 
 misrepresentation in obtaining their sig- 
 natures. 
 
 Per DuBTJC, C. J. The plaintiffs, 
 being holders for value without notice of 
 any fraud or irregularity, were entitled to 
 recover against the defendants notwith- 
 standing the defence, set up that they 
 were only to be liable on condition tl;iat 
 Lee joined with them. 
 
 Merchants Bank v. Good, (1890) 6 M. 
 R. 339, followed. 
 
 Awde V Dixon (1851) 6 Ex. 869; 
 Hogarth v. Latham, (1878) 47 L. J. Q. B. 
 339, and Ontario Bank v. Gibson (1887) 3'. 
 M. R. 406, 4 M. R. 440, distinguished. 
 First National Bank v. McLean, 16 M. R. 
 32. 
 
 9. Holder in due course — Onm of 
 
 proof where illegality set up mthoui plea 
 of illegality-^ Note of corporation. 
 
 The plaintiffs sued the defendants on 
 a promissory note executed in proper 
 form, given in favor of one Yates, and 
 indorsed by him to the plaintiffs. The 
 defendants proved that the giving of the 
 note to Ya,tes was for his accommodation 
 and entirely unafithorized, and argued 
 that the plaintiffs were then bound to 
 prove that they were holders in due course, 
 under sections 30 and 88 of the Bills of 
 Exchange Act, but there was no plea of 
 illegality or fraud on the record. 
 
97 
 
 BILLS AND NOTES. 
 
 98 
 
 Held, that without such plea such 
 defence could not be maintained, and it 
 was unnecessary for the plaintiffs to 
 prove that they had given value or were 
 holders in due course. Farmers' and 
 Mechanics' Bank v. Dominion Coal Co., 9 
 M. R, 542. 
 
 10. Holder in due course — Defect in 
 title — Burden of proof — Indorsement before 
 maturity, presumption in favor of. 
 
 Possession of a negotiable bill or note 
 is prima facie evidence of title, and the 
 holder is presumed to have taken it in 
 good faith for value before maturity, in 
 the Usual course of business and without 
 notice of any defect in the title of the 
 transferor: Parkin v. Moon, 7 C. & P. 
 408, and Lewis v. Parker, 4 A. & E. 838. 
 
 Defendant gave the note in question 
 and a number of other notes in payment 
 for a threshing outfit bought from a 
 company through the plaintitf ' as agent, 
 - and the company indorsed the note in 
 question without recourse to the plaintiff 
 in payment of his commission on the sale. 
 Plaintiff at that time had no reason to 
 suspect that *he sale of the machinery 
 would be rescinded or that the company 
 would afterwards take back the possession 
 of the machinery. He was unable to 
 swear positively that he got the note 
 before its maturity, but the presumption 
 in his favor was not displaced by any 
 evidence. 
 
 Held, that plaintiff " was entitled to 
 recover notwithstanding that the company 
 afterwards retook possession of the 
 machinery and the'defendant might have 
 had some defence to an action by the 
 company on the note. 
 
 Smith V. Gqlbraith, 1 W. L. R. 227. 
 
 11. Illegality — Holder in due course — 
 Burden of proof — Bills of Exchange Act, 
 1890, ss. 29, 30. 
 
 Action by the holder of a promissory 
 note made by defendant payable to the 
 order of H. or bearer which had been 
 transferred by delivery before maturity 
 by H. to B., by B. to D. and by D. to 
 the plaintiff. 
 
 The County Court Judge found that 
 the note was affected with illegahty and 
 gave judgment for defendant. 
 
 Hdd, per Riohaeds, J., on appeal to 
 the King's Bench that it should be pre- 
 sumed from this verdict that the trial 
 Judge had found that the plaintiff had 
 failed to satisfy the onus cast on him by 
 sections 29 arid 30 of the Bilk of Exchange^ 
 
 Act 1890 of showing that he or B. or D. 
 was a holder in due course. 
 
 See the report for a statement of the 
 facts proved and the reasons given for 
 dismissing the appeal. 
 
 Pebdub, J., was of opinion that the 
 plaintiff was entitled to a verdict on the 
 evidence. Gibson v. Coates, 1 W. L. R. 
 556. 
 
 12. Liability of indorser to payee— 
 
 Bilh of Exchange Act, R.S.C. 1906, c. 119, 
 s. 131 — Holder in due course — Estoppel. 
 
 1. Under section 131 of the Bills of 
 Exchange Act, R.S.C. 1906, c. 119, a 
 person who indorses a promissory note 
 hot indorsed by the payee at the time 
 may be liable as an indorser to the payee. 
 
 Robinson v. Mann, (1901) 31 S.C.R. 
 484, and McDonough v. Cook, (1909) 19 
 O.L.R. 267, followed in -preference to 
 Jenkins v. Coomber. [1898] 2 Q.B; 168, 
 and cases following it. 
 
 Difference between above section and 
 the corresponding section (56) of the 
 Imperial Act pointed out. . 
 
 2. Although the defeiidant company 
 had made the note in question in pursuance 
 of-, an agreement to assmne the debt of 
 another to the plaintiff company; yet, as 
 there was a good and valuable consider- 
 ation given for that assuinption, the 
 plaintiffs were holders in due co'urse and 
 the defendant company was liable upon 
 the note. 
 
 3. The other defendants being directors 
 of the defendant company, having in- 
 dorsed the note and induced the plaintiffs 
 to enter into and perform the agreement 
 in consideration of which the note was 
 given, were estopped from disputing the 
 validity of this transaction or setting up 
 that the defendant company had not 
 power to give the note: Bills of Exchange 
 Act, s. 133. 
 
 McDonough v. Cook, supra at pp. 272, 
 274, and Lloyds Bank v. Cooke, [1907] 
 1 K.B. 794, followed. Knecktel Furniture 
 Co. V. Ideal House Furnishers, 19 IM. R. 
 652. 
 
 13. Pleading — Waiver of presentmerit — ■ 
 "Notes of mine" — Appropriation of pay- 
 ments. 
 
 A note payable to the order of the 
 defendant and indorsed "Pay to the 
 order of IVIcA., B. & Co." (the plaintiffs) 
 may be declared upon as indorsed by the 
 defendant to the plaintiffs, altfiough the 
 name of another indorser appeatrs below 
 defendant's signature; . there being no 
 
99 
 
 BILLS AND NOTES. 
 
 100 
 
 explanation of the circumstances under 
 which this other name was signed. 
 
 Qumre. — Whether under an allegation 
 of presentment for payment and notice of 
 dishonor the plaintftf can prove waiver of 
 presentment and notice. 
 
 The phrase "Notes of mine" is wide 
 enough to cover notes indorsed as well as 
 made. 
 
 The principles of appropriation of pay- 
 ment discussed. 
 
 MeArthur v. McMillan, 3 M. R. 152. 
 
 Affirmed, 3 M. R. 377. 
 
 IX. Lost Bills and Notes. 
 See Pkactice, XXVIII,- 15. 
 
 X. Pbbsbntmbnt and Notice 
 
 OF DiSHONOK. 
 
 l.llmpossibility of presentment — 
 
 Form and contents. 
 
 If the place at which money is payable 
 under a simple contract ceases to exist, 
 it is not necessary that any demand for 
 payment be made to enable the creditor 
 to maintain an action. "^ 
 
 Per Taylor, C.J.-If the place at whi_ph 
 aj^promissory note is payable ceases to 
 exist, personal presentment must be made. 
 
 A promissory note was preceded by the 
 words, "To collaterally secure the ~pay- 
 ment of the money mentioned in an 
 ■assignment of mortgage," etc. ~ 
 
 Held, That the instrument was an 
 agreement inerely and not a promissory 
 note. McJRobbie v. "Torrance, 5 M. R. 114. 
 
 2. Note left at place of payment — 
 
 Constitutional law — 3 & 4 Anne, c. 9. 
 
 if si note be at the place of payment at 
 the time it becomes due, it is sufficiently 
 presented. 
 
 3 & 4 Anne, c. 9, s. 1, enablLttg indorsees 
 of notes to sue the maker or indorser was 
 introduced into Manitoba by 38 Vic. 
 (Man.), c. 12. 
 
 The Act_ 34 Vic. (D.), c. 5, enabUng 
 banks to discount promissory notes, &c., 
 , impUed that notes were negotiable. Mer- 
 chants Bank v. Mulvey, 6 M. R. 467. 
 
 3. Time for mailing notice of dis- 
 honor — Post office box. 
 
 The plaintiffs were the holders of a 
 note endorsed by the defendant, payable 
 at the plaintiff's bank- on ithe 15th of 
 September. 
 
 On the 13th of September a change of 
 managers of the bank had taken place 
 and the new manager, although the note 
 
 - was in the bank during the whole of the 
 15th, knew nothing of its existence until 
 the afternoon of the ' 16th. He then 
 caused the note to be protested and a 
 notice addressed to the defendant put in 
 the post office. This notice was placed 
 in a box rented by the defendant from 
 the post-office • authorities before six 
 o'clock on the same afternoon. 
 
 Held, That there had -been sufficient 
 presentment and notice of dishonor. 
 Union Bank v. McKilligan, 4 M. R. 29. 
 
 4. Waiver of presentment— I/ia6ii% 
 of maker when note not presented at place 
 where payable — Bills of Exchange Act, 
 B.S.C. 1906, c. 119, s.lSd— Holder in due 
 course — Renewal note as acknowledgment of 
 liMlity. on original — Liability of company 
 on note made by officer. 
 
 Action by indorsees of promissory note 
 given by defendant company to the payees 
 for value. ' The plaintffis took the note 
 during its currency as security for an 
 advance to the payees. The note was 
 payable at the Bai& of Hamilton, Win- 
 nipeg. At its maturity the secretary-- 
 treasurer of defendant coinpany went to 
 the office of the payees and gaVe them a 
 renewal note without inquiring for the 
 original.. The payees then negotiated the 
 renewal note and the defendant company 
 
 - afterwards paid it. 
 
 The trial Judge was satisfied upon the 
 evidence that the original note had been 
 presented for payment before action, but 
 he non-suite4 the plaintiffs on the ground 
 that , they, being shareholders in the 
 payee company, were personally bound by 
 the wrongful action of that company in 
 taking the renewal note. 
 
 Hdd, per Pebdoe and Cameron, JJ.A. 
 
 (1) That the non-suit was wrong, as 
 there was nothing to show that the 
 plaintiffs were not holders in due course. 
 
 (2) That the action of the defendants 
 in giving the renewal note and subse- 
 quently paying it amounted to an ac- 
 knowledgment that the original note was 
 made with their authority and that they 
 were Uable on it. 
 
 Per Cameron, J.A. (1) That, under 
 section 183 of the BUls of Exchange Act, 
 presentment of the note for payment 
 before action was not necessary, following 
 Merchants Bank v. Henderson, (1898) 28 
 O.R. 360 ; Freeman v. Canadian Guardian 
 Co., (1908) 17 O.L.R. 296, and dissenting 
 from Warner v. Symon-Kaye, (1894) 27 
 N.S.R., 340, and Jones v. England, (1906) 
 5 W. L. R. 83. 
 
101 
 
 BILLS AND NOTES 
 
 102 
 
 (2) That the defendants were liable on 
 the note although it was not duly made 
 oinder their by-laws, as innocent holders 
 of negotiable securities are not bound to 
 inquire whether certain preliminaries 
 which ought to have been gone through 
 have actually been gone tliough. 
 
 Imperial Bank v. Farmers Trading Co., 
 (1901) 13 M. R. 412, and Re Land Credit 
 Co., (1869) L.R.-4 Ch. 469, followed. 
 
 Per RiCHAKDS, J.A. That it was neces- 
 sary to prove presentment before action 
 and this had not been done. 
 
 Per Perdue, J.A. That there was 
 sufiBcient evidence of presentment before 
 action. ' 
 
 Appeal allowed and verdict entered for 
 plaintiffs with costs. Robertson v. North- 
 western Register Co., 19 M. R. 402. 
 
 6. When to be made as against 
 maker — Indorsee against maker for money 
 paid to his use. 
 
 Held, 1. Evidence is admissible to 
 prove that words now appearing over an 
 indorsement were placed there after 
 delivery and that the true indorsement 
 was not, therefore, restrictive. 
 
 2. A note payable at a particular place 
 must be presented there for payment. As 
 against an indorser, it must be so pre- 
 sented upon the due date. As against 
 the maker, any subsequent presentment 
 will suffice if he have not by the delay 
 been damnified. 
 
 3. If a note be at the place for payment 
 upon the due date, no fin:ther present- 
 ment is necessary. 
 
 4. Anvindorser suing the maker upon 
 the note need not prove presentment and 
 notice to himself, but if he sue for money 
 paid to the use of the maker he must 
 show that he was legally liable, or an 
 express request, to pay. 
 
 5. Evidence not objected to at the trial 
 cannot be objected to in Term. 
 
 6. The plaintiff — ^an indorsee of a 
 note — ^may even at the trial strike out 
 the names of prior indorsers. Biggs v. 
 Wood, 2 M. R. 272. 
 
 6. Where payable. 
 
 Certain promissory notes were made 
 payable at the Imperial Bank of Canada 
 without stating any special place. The 
 notes were dated at Brandon. The head 
 office of the Imperial Bank was at Toronto, 
 but it had a branch office at Brandon and 
 the notes were^resented at that office 
 for pajTnent. 
 
 Held, A sufficient presentment. 
 
 Commercial Bank v. Bissett, 7 M. R, 
 586. 
 
 Distinguished, Taylor v. Gardiner, 8 
 M. R. 310. 
 
 7. Within reasonable time^Promis- 
 sory note payable on demand witK interest 
 half yearly on dates specified — Presentrrnent 
 for payment — Reasonable time — Discharge 
 of indorser — Notice of dishonor — Writ of 
 summons, service of, not equivalent to 
 notice of dishonor. 
 
 A promissory note worded as follows: 
 
 "On demand, months after date, 1 
 
 promise to pay to A. B., or order, the 
 
 sum of with interest at ten per 
 
 cent, payable half yearly on 30th April 
 and 31st October," is a negotiable promis- 
 sory note within the meaning of s. 82 of 
 The Bills of Exchange Act, 1890. 
 
 Such a note was presented for payment 
 and protested about 32 months after its 
 date, three half yearly instalments of 
 interest having been paid in the meantime. 
 
 Held, that there was nothing to show 
 that it was not presented within a reasoii- 
 able time. 
 
 The issue and service of the writ of 
 summons in an action on a promissory 
 note, is not sufficient notice of dishonor 
 to make the indorser liable, although the 
 wiit was served on the same day that the 
 note was dishonored. 
 
 Qucere, whether the plaintiff could 
 recover overdue instalments of interest 
 without having given notice of dishonor 
 on each default in payment. Commercial 
 Bank v. Allan, 10 M. R. 330. 
 
 8. Proof of presentment of promis- 
 sory note payable at a particular 
 place when dispute note does not 
 deny presentment — County Courts Act, 
 R.S.M. 1902, c. 38, ss. 95, 114, 116, 118— 
 Pleading in County Court action. 
 
 Although a promissory note is payable 
 at a particular place, it is not necessary, 
 in an action upon it in a County Court, 
 to allege presentment at that place in 
 the particulars of claim, or to prove 
 presentment at the trial, unless the 
 defendant has expressly set up non- 
 presentment in his dispute note. Teague 
 V. Secular, 17 M. R. 593. 
 
 See Accord and Satisfaction, 3. 
 
 — Banks and Banking, 9. 
 — • Conditional Sale, 7. 
 
 — Company, IV, 15. _ 
 
 — CoTTNTY Court, II, 6. 
 
 — Evidence, 21. 
 
103 
 
 BILLS OF LADING. 
 
 104 
 
 See, FBATIDtTLENT CONVEYANCE, 15. 
 
 — Practice, XXVI, 2. 
 
 — Promissory Notes. 
 
 — Summary Jtidgment, I, 3; II, 4. 
 
 BILLS OF LADING. 
 
 See Railways, III, 2. 
 — Sale of Goods, IV, 3. 
 
 BILLS OF SALE. 
 
 - \.- 
 
 1. Change of possession— JVoiice to 
 creditor. 
 
 If a particular creditor is aware that 
 there has been a sale of chattels and an 
 actual and continued change of possession 
 following it, he cannot be prejudiced by 
 the fact that a written bill of sale or 
 mortgage has not been filed in accordance 
 with the Bills of Sale Act, and the sale or 
 mortgage may be held valid as against 
 his claim, although the requirements of 
 that Act are not fully complied with. 
 Robertson v. Wrenn, 10 M. R. 378. 
 
 2. Immediate delivery — Change of 
 possession — Seizure of horse under execu- 
 tion against vendor—Claim by vendee- 
 Interpleader issue. 
 
 Interpleader issue respecting the right 
 to a staUion. H. acquired the horse 
 in question in March, 1891. During 1891 
 and 1892 printed notices were put up 
 advertising the horse in which it was 
 stated that reference for, particulars was 
 to be had to H., although there was 
 no statement of the ownership of the 
 animal. H. did not, himself, travel with 
 or personally take care of the horse, but 
 arrangements were made in his name 
 with the persons at whose places the 
 horse was put up, and printed forms were 
 used on which was the heading, "D. 
 liope, proprietor." 
 
 Oil 20th June, 1892, plaintiff bought 
 the horse from H., giving his note at 6 
 months for the amount of purchase 
 money, and H. gave him an absolute 
 receipt acknowledging payment of the 
 whole of the purchase money, and ah 
 order for delivery of the horse. The 
 horse was then away in the country and 
 was not brought back to Winnipeg until 
 23rd June, when plaintiff presented the 
 order to C. who took care of the horse, 
 and told him he had bought it, he told C. 
 
 to. change the book containing the forms 
 of contracts by substituting the plaintiff's 
 name for that of H.; he gave X^. charge 
 of the horse and told him to tell everybody 
 that the horse was his, plaintiff's. 
 
 Held, that the transaction must be 
 treated as a real agreement for the sale of 
 the horse to the plaintiff. The plaintiff's 
 note was apparently accepted in payment 
 and there was such a d^very and accep- 
 tance as satisfied the Statute of Frauds. 
 
 But, the sale was void as against the 
 defendant, because of its not having been 
 accompanied by an immediate delivery, 
 and the, possession of the plaintiff jjould 
 not avail to give him a title which the 
 sale did not give, as against the defendant 
 in the issue. Jackson v. Bank of Nova 
 Scotia, 9M. R, 75. 
 
 3. Security for money— Bife of Sale 
 Act, R.S.M. 18Q2, c. 10, ss. 2 arid 3. 
 
 If the transaction between the bar- 
 gainor and the bargainee in a bill of sale 
 filed in apparent compliance with the 
 Bills of Sale Act, R. S. M: c. 10, s. 2 
 is really a transfer to the latter by way of 
 security only for the re-payment of money, 
 and not an absolute sale of the goods ana 
 chattels comprised therein, the bill of 
 sale, in the absence of immediate delivery 
 and actual arid continued change of poss- 
 ession, will be held void under that section. 
 Matheson v. Pollock, 3 B. C. R. 74, and 
 Bathgate v. Merchants Bank, 5 M.R. 
 210, followed. Boddy v. Ashdown, 11 M. 
 
 R. 555. 
 
 ■ ■■ 
 
 4. Statement of consideration. 
 
 The fuU and true consideration for 
 which a bill of sale is given must be set 
 out in it, with substantial acciiiracy, 
 otherwise the bill is void. 
 
 G. being indebted to B., gave his note 
 for the amount, which B. discounted at 
 a chartered bank. As security for the 
 -discount, G. executed a chattel mortgage 
 to the bank. At maturity B. took up 
 the note. Afterwards he procured from 
 G.-a bill of sale of the goods. The bill 
 recited the mortgage and an agreement 
 to sell the goods forSlOO over the mortgage. 
 The expressed consideration was the 
 premises and $100. The $100 was not 
 paid or intended to be paid. 
 
 Held, 1. That the mortgage was void 
 imder the Banking Act. 
 
 2. That, although the debt upon the 
 notes might have been a sufficient con- 
 sideration for the bill of saile, yet,, as that 
 was not the consideration stated, the bill 
 
105 
 
 BONDS. 
 
 106 
 
 was void. Bathgate v. Merchants 'Bank, 
 5 M. R. 210. 
 
 Ses Fraudulent Conveyance, 14. 
 
 BONDS. 
 
 Successive actions on same bond— 
 
 Pleadin^^-Amendment-^Presumption in 
 favor of seal having been affixed with 
 antharity^-Agreement to stifle prosecution — 
 Illegal consideration. 
 
 Only one action can be brought upon 
 a bond with a penalty; but, if the objection 
 is not pleaded to a second action, it 
 cannot be raised at the trial and an 
 amendment raising it shoald not neces- 
 sarily be allowed. 
 
 The defendants had signed the bond in 
 question in this action at the request of 
 one Turner, who was indebted to the 
 plaintiff. They intended the document 
 to be their bond and it purported to be 
 under seal, and it was sealed when handed 
 by Turner to the plaintiff, but they 
 swore that there were no seals upon it 
 when they signed it. ~ They did not, 
 however, say that th^ did not authorize 
 Turner to complete the document and 
 make it what it was intended to be by 
 affixing seals. 
 
 H^, that it should be presumed that' 
 the defendants had authorized Turner to 
 afl5x""the seals for them, and that their 
 defence of alteration of the bond failed. 
 
 Turner had become indebted to the 
 plaintiff under circumstances exposing 
 him to a criminal prosecution in respect 
 of the debt and, at the interview between 
 him and the plaintiff's solicitor respecting 
 a settlement, the latter told him that he 
 was liable to a criminal prosecution; but, 
 outside of this, there was no evidence of 
 a promise or agreement not to prosecute. 
 
 To induce the defendants to give the 
 bond in question. Turner told ,them he 
 was threatened with arrest but for a 
 totally different offence. 
 
 Hdd, distinguishing Jones v. Merioneth- 
 shire, &c., [1892] 1. Ch. 173, that there 
 was not sufficient evidence to warrant a 
 finding that the bond had been given for 
 an illegal consideration, viz., an agree- 
 ment not to prosecute. 
 
 Semble, such a defence, if made out by 
 the evidence, should be given effect to by 
 the Court on appeal, although not pressed 
 at the trial, or mentioned in the praecipe 
 filed for the appeal. 
 
 Scott V. Brown, [1892] 2 Q.B. 724, and 
 Gedgev. Boyal Eiechange, [1900] 2jQ.B. 
 220, followed. Pease v. Bandolph,i21M.. 
 R. 368. 
 
 See Election Petition, IX, 2. 
 — ■ Rectification op Deed, 1. 
 — Vendor and Purchaseb, I, 1. 
 
 BONUS ON MORTGAGE LOAN. 
 
 See Mortgagor and Mortgagee, VI, 1. 
 
 BOYCOTT. 
 
 See Conspiracy in Restraint op 
 Trade, 1. 
 
 BOUNDARIES, CHANGE OF. 
 
 See Local Option, I. 
 
 — Municipality, VIII, 1. 
 
 — Summary Judgment, II, 3. 
 — • Taxation, 3. 
 
 BOUNDARY LINES. 
 
 Survey — Re-survey — Dominion Lands 
 Act, s. 129, 52 Vic, c. 27, s. 7, [D}— Rati- 
 fication — Road allowarice — DominionLands. 
 
 Under sub-section 2 of section 129 of 
 the Dominion Lands Act as re-enacted by 
 52 Vic, c. 27, s. 7, it is necessary that the- 
 Govemor-General-in-Council should first 
 direct the cancellation of the old survey 
 and the making of a new one in case of 
 any gross irregularity or error being 
 discovered in the survey of any township, 
 and the proceedings were held void 
 altogether where a new survey was made 
 on the authority of the Minister of the 
 Interior without a prior Order-in-Council 
 being passed, although such new survey 
 was afterwards ratified by Order-in- 
 Council. - 
 
 Held, also, that, as a number of the 
 parcels of land affected by the new survey 
 had ceased to be Dominion Lands, the 
 new survey was invalid because the Act 
 applies only to Dominion Lands. 
 
 The road allowance between the two 
 parcels of land in dispute had become 
 the property of the Province of Manitoba 
 
107 
 
 BREACH OF CONTRACT. 
 
 108 
 
 by virtue of the Act 39 Vic, c. 20, s. 1, 
 ^D), and for that reason alone it would 
 . be improper to change the boundaries by 
 a new survey not authorized by Provincial 
 legislation. Pockett v. Poole, 11 M. R. 
 508. 
 
 BREACH OF CONTRACT, 
 
 See Contract. 
 
 — Covenants, 6. 
 
 — Damages, 1. 
 
 — Injunction, II, 1, 2. 
 
 — Sale of Goods, II, 3. 
 
 BREACH OF COVENANT. 
 
 See Covenant, 2. 
 
 — Practice, II, 2. 
 
 — Real Property Limitation Act, 1. 
 
 BREACH OF DUTY. 
 
 See Principal and Agent, II, A; V, 4. 
 
 BREACH OF INJUNCTION. 
 
 See Injunction, IV, ] . 
 
 BREACH OF PROMISE OF 
 MARRIAGE. 
 
 Corroborative evidence. 
 
 The corroboration necessary in an 
 action for breach of promise need not go 
 the length of, by itself, proving the 
 promise; it will be sufficient if it supports 
 the plaintiff's evidenfce in respect pf the 
 promise, so as to make it appear reason- 
 ably probable that her testimony that 
 the promise was given is true. 
 
 Circumstances which are as consistent 
 with the non-existence of a promise as 
 they are with the fact of a promise having 
 been given, can scarcely be taken to 
 afford the material corroboration that the 
 Statute requires. Waters v. Bellamy, 5 
 M. R. 246. 
 
 See Evidence, 4. 
 
 BREACH OF STATUTORY DUTY. 
 
 See Negligence, I, 3. 
 — ■ Railways, XI, 4. 
 
 BREACH OF TRUST. 
 
 Constructive notice — Solicitor acting 
 for both ■parties — Purchase far valiie without 
 notice — Occupation of land, how far notice 
 to purchaser- — Redemption — Negligence. 
 
 The defendant Hastings, being soUcitor 
 for the plaintiff Duncan MacArthur, at 
 his recjuest accepted the trusteeship of the 
 land in question for the plaintiff's infant 
 son, John R. MacArthur; but afterwards, 
 as found by the trial Judge, fraudulently 
 conveyed the land to the defendant 
 Stenning, who had been his client, in 
 satisfaction of the sum of $460 part of 
 his then indebtedness to , her. Mrs. 
 Stenning had no notice of the plaintiff's 
 claini and supposed that the land was 
 vacant, although it had a house on it- 
 which, in .fact, had been all the time 
 occupied by tenants paying rent to 
 MacArthur. 
 
 Held, 1. Notice of the plaintiff's claim 
 should not be attributed to Mrs. Stenning 
 on account of her soUcitor's knowledge of 
 the facts; because, in carrjdng out the 
 transaction, the solicitor would na%rally " 
 suppress that knowledge. 
 
 Rolland V. Hart, (1871) L.R. 6 Ch. 
 678, followed. 
 
 2. The occupation of the land by a 
 tenant Effected Mrs. Stenning with con- 
 structive notice only of that tenant'^ 
 rights, and not with notice of the lessor's 
 title or rights. 
 
 Hunt V. Luck, [1902] 1 Ch. 428, followed. 
 
 3. Mrs. Stenning was entitled to be 
 treated as a purchaser for value without 
 notice; and, having the legal estate, her 
 claim should prevail over the prior equity 
 of the plaintiff, but only to the extent 
 of the amount by which she had reduced 
 her claim against, Hastings, as no new or 
 further consideration passed from her to 
 Hastings when she acquired the title. 
 
 4. The action of the plaintiff in con- 
 veying the land to Hastings, and not 
 aiteirwards inquiring what the trustee was 
 tioing with the property, could not be 
 considered as negligence disentitling the 
 plaintiff to relief, in view of the fact that 
 he continued to receive the rents. 
 
 Shropshire, &c, Co. v. The Queen, (1875) 
 L. R. 7 H. L. 507, foUowed. 
 
109 
 
 BREACH OF WARRANTY. 
 
 110 
 
 5. The plaintiff John R. MacArthur 
 was entitled to redeem the land upon 
 payment to Mrs. Stenning of the $460 
 with interest, her subsequent outlays and 
 costs of suit. 
 
 6. The defendant Hastings should pay 
 John R. MacArthur the amount so found 
 due to Mrs. Stenning and the plaintiff's 
 costs. MacArthur v. Hastings, 15 M. R. 
 500. 
 
 BREACH OF WARRANTY. 
 
 Measure of damages — Sale of Goods 
 Act, B.S.M. 1902, c. 152, s. 52 (d). 
 
 Action for damages for breach of a 
 warranty on the sale of a second-hand 
 engine, that the engine was in a good 
 state of repair and in good working order. 
 
 Held, that, under sub-section (d) of 
 section 52 oi The Sale of Goods Act, 
 R.S.M. 1902, c. 152, the proper measure 
 of damages to be allowed is- the amount 
 which at the time of the sale it would 
 have been necessary to expend in order to 
 remove defects which constituted the 
 breach of the warranty, but not including 
 cost of repairs necessitate! by wear and 
 tear or accidents after the plaintiff began 
 to use the engine. 
 
 Cook V. Thomas, (1886) 6 M.R. 286, 
 followedv Sumner v. Dobbin, 16 M. R. 
 151. 
 
 See Contract, XII, 2. 
 
 — Ettoencb, 15. 
 
 — Pleading, VIII, 2. 
 
 — ■ Sale or Goods, IV, 1, 4. 
 
 — Warranty, 1, 2. 
 
 BRIBERY. 
 
 BRIDGE. 
 
 See Constitutional Law, 1. 
 — Expropriation, 2. 
 
 BUILDERS' AND WORKMENS' ACT. 
 
 R. S. M. 1902, c. 14, ss. 3, ^^Employ- 
 ment o/ workmen "by the day"— Priority of 
 claim for wages. 
 
 A workman employed at a rate per 
 hour is not a workman employed "by the 
 day" within the meaning of section 3 of 
 The Builders' and Workmetfs Act, II. S. 
 M. 1902, c. 14, and can have no direct 
 claim against the proprietor, under section 
 4 of the Act, for his wages earned in the 
 erection of a building by his employer 
 for the proprietor. Dunn v. Sedziak, 17 
 M. R. 484. 
 
 Note. — ^The statute has since been 
 amended substituting the words "by 
 time" for "by the day." 
 
 BROKER 
 
 See Principal and Agent, V, 5. 
 
 BUILDING CONTRACT. 
 
 1. Architect's certificate of comple- 
 
 tioOrr-Condition precedent. 
 
 The written contract between the> 
 parties provided that the plaintiffs were 
 to erect and complete, a building for 
 defendant according to certain drawings 
 and specifications by a fixed date aad t6 
 the satisfaction of an architect named in 
 the agreement and certified by him under 
 his hand forthwith after completion. It 
 also provided for payment on the certifi- 
 cates of the architect of 85 per cent, on 
 the work done from time to time, and 
 that the balance unpaid on the completion 
 of the work should become payable 
 within one month after the architect 
 should have certified thereto. 
 
 The architect gave two so-called final 
 certificates, the first of which was in- part 
 as follows: "I hereby certify that Davidson 
 Bros, are entitled to $416.36 in full for 
 above contract and extras, less $4.25, 
 which amount may be held back till the 
 items of work in the following list are 
 done." It proceeded to specify the items 
 covered by the $4.25, and added: "Note — 
 1 consider the guarantee in specification 
 will cover any leak in roof.' ' 
 
 The contractors had in the specification 
 guaranteed the roof for five years against 
 ordinary wear and tear. Annexed to and 
 forming part of the certificate was a 
 statement showing that in arriving at the 
 sum of $416.36 a deduction of $50 had 
 been made for "bad floor, etc." 
 
 The second and last certificate of the 
 architect was as follows: "This is to 
 show that by certificate given by me on 
 
Ill 
 
 BUILDING CONTRACT. 
 
 112 
 
 23rd January, 1900, I certified that 
 Davidson Bros, were entitled to $416.36, 
 from which the amount of $4.25 was 
 deducted to cover some small items left 
 undone. These have now been attended 
 to, and I therefore certify that ^Davidson 
 Bros, are entitled to $416.36 in full of 
 contract and extras." 
 
 Held, that the two certificates should 
 be read together, that being so read they 
 showed that in respect of the floor and 
 roof the work had not been properly 
 completed,, and did not constitute a 
 certificate that the contract work had 
 been completed to the satisfaction of the 
 architect, that such a certificate was a 
 condition precedent to the plaintiffs' right 
 to recover, and that the verdict of the 
 trial judge in favor of defendant should 
 . stand. Davidson v. Francis, 14 M. R. 141. 
 
 2. Completion of work by pro- 
 prietor — Who entitled to difference when 
 cost of completion less than balance of 
 contract price. 
 
 After the plaintiff had done a con- 
 siderable part of the work under a contract 
 with the defendants for the building of 
 a bridge he became unable to proceed 
 with it, and the defendants under a clause 
 in the contract declared it forfeited and 
 completed the work themselves at a cost 
 of about $4000 less than the unpaid 
 balance of the original contract price of 
 the whole work and took over and used 
 the bridge. 
 
 That clause provided for an indemnity 
 o the defendants against all I6ss occa- 
 sioned by the' default of the oontractoi', 
 also that, if the damage to the defendants 
 resulting from such default should be less 
 than the sum due to the contractor under 
 the contract, then the difference' should 
 be payable to the contractor. It also 
 provided that the contractor should have 
 no claim for payment in respect cf the 
 work done after the cancellation of this 
 contract. 
 
 Held, notwithstanding, that the plaintiff 
 was entitled to the full balance of the 
 contract price less the costs and expenses 
 incurred by the defendants in completing 
 the work. 
 
 Banger v. G.W.B., (1854) 5 H.L. Cas. 
 72, followed. Buchanan v. Winnipeg. 
 Stewart v. Winnipeg, 19 M. R. 553. 
 
 3. Delay in completion — Penalty or 
 liquidated damages — Provision for written 
 notice of claim for extra time allowance- 
 
 Ordering extra work after expiration of 
 time for completion. 
 
 The plaintiff's contract bound him to 
 complete a building for defendant within 
 a specified- time and to pay a penalty of 
 $20 a week in pase of delay beyond the 
 time, subject to clauses providing for an 
 extra time allowance in case the plaintiff 
 should be obstructed or delayed "in the 
 prosecution or completion of the work" 
 by the act, neglect, delay or default of 
 the owner or the architect or of any 
 other contractor on the house, but that 
 "no such allowance shall be made unless 
 a claim therefor is presented in writing to 
 the architect within 36 hours of the 
 occurence,of such delay." 
 
 Held, (1) that plaintiff was bound by 
 this last proviso, and was liable for the 
 stipulated penalty, although the delay in 
 completion was entirely owing" to causes 
 beyond his control and a large part of it 
 took place before he commenced his work 
 at aU, as he had failed to give notice in 
 writing to the architect of any claim for 
 extra time allowance. 
 
 Jones V. St. John's College, (1870) L. R. 
 6 Q. B. 115, followed. 
 
 (2) As the trial Judge found that, as a 
 matter of faci, the defendant was not 
 responsibte for any part of the time lost 
 and he suffered from the delay damage to 
 the extent of $20 per week, the case did 
 not come within sub-section (c) of section 
 38 of the King's Bench Act, giving the ^ 
 Court power to relieve against agreements 
 for liquidated damages. 
 
 (3) The allowance of $20 per week 
 should be made only from the time 
 named in the contract for the completion 
 up to the 19th January, 1904, and not 
 up to the date of the actual completion, 
 because defendant ordered some extra 
 work to be done which was only com- 
 menced on the 19th January, and that 
 estopped him from claiming damages for 
 delay beyond that date. 
 
 Holme »■. Guppy, (1838) 3 M. & W. 
 387; Westwood v. Secretary of State' for 
 India, (1863) 7 L. T. 736, and Dodd v. 
 Churton, [1897] 1 Q. B. 562, followed 
 Grey v. Stephens, 16 M. R. 189. 
 
 4. Delay in completion — Termination 
 by owners of the employment of the contractor 
 before completion — Liability of contractor 
 for results of accident caused by his negli- 
 gence. 
 
 The contract in this case contained 
 the" usual provisions for the termination 
 of it by the owner before completion in 
 
113 
 
 BUILDING CONTRACT. 
 
 114 
 
 the event of the contractor making default, 
 and tor payment by the contractor of a 
 fixed amount as Jictuidated damages for 
 every day's delay in completion beyond 
 the time fixed. Upon the happening of 
 an accident and damage to the works, 
 for which the Court held the plaintiffs 
 responsible, they refused to maJce good 
 the damage and the defendants termin- 
 ated the contract and completed the 
 building. 
 
 By the terms of the contract the 
 plaintiffs were not entitled to receive any 
 further payment after their employment 
 had been discontinued until the work was 
 wholly finished unless the defendants 
 shotild be unreasonably dilatory in com- 
 pleting it, and the trial Judge found that 
 they""had not been. Moreover payments 
 were to be made "only upon the written 
 certificate of the architect to the effect 
 that such- payments are due unless the 
 architect is in default in issuing the 
 same," and the trial Judge found that 
 the architect was not in default in refusing 
 a certificate after the damage had occurred. 
 
 The plaintiffs brought this action 
 before the completion of the building and 
 claimed to be entitled to- recover the full 
 amount earned by them up to the time 
 their employment was terminated. 
 
 Held, that their action was premature 
 and should be dismissed with costs. 
 
 The defendants in their counterclaim 
 sought to charge against the plaintiff 
 $100 per day as liquidated damages for 
 delay in completion from the -time fixed, 
 1st April, 1907, but they had not termin- 
 ated the contract until 21st September 
 following and the work was not completed 
 by them until the following spring. 
 
 Held, (1) That- the defendants had 
 'precluded themselves from recovering 
 anything under the pepalty clause by 
 orderiag several complete. changes in the 
 character of portions of the biulding, by 
 ordering a number of important extras 
 after the time fixed for completion, by 
 paying the progress estimates given by 
 the architect up to the time of the can- 
 cellation of the contract and by great 
 delays on the part of the architect in 
 furnishing drawings and specifications of 
 the work. 
 
 Findlay v. Stevens, (1910) 20 O.L.R. 
 334; Dodd v. Churton' [1897] 1 Q.B. 562, 
 and Roberts v. Bury Commissioners, (1870) 
 L. R. 5 C.P. 310, foUowed. 
 
 (2) That the defendants could not 
 recover anything by reason of the plaintiff - 
 having left the floors of the building out 
 
 of level, as the defendants had chosen to 
 complete the building without restoring 
 the level, although thejr could have 
 recovered the expense of it if they had 
 restored the level as thej^ might have done. 
 
 (3) That^the defendants were entitled 
 to recover under their counterclaim any 
 excess of the cost of completing the 
 building according to the original plans 
 and specifications over and above the 
 balance impaid of the original contract 
 price plus the cost of extra work done by 
 the plaintiffs, and also the expense 
 incurred by the defendants in repairing 
 and restoring an adjoining building 
 belonging to a different owner which had 
 been seriously damaged in consequence of 
 
 ' the accident. , 
 
 (4) A contractor for the erection and 
 completion of a building is liable to make 
 good any injury that happens to it during 
 the progress of construction, although the 
 cause of that injury was some defective 
 design or errors on the part of the archi- 
 tect in preparing the specifications for the 
 work, unless these causes have been 
 expressly excepted ty the contract. 
 
 Thorn v. Mayor of London, (1876) 1 
 A.C. 120;Bottoms v. Mayor of York, (1892) 
 Hudson on Building Contracts, vol. II, p^- 
 220, and Hydraulic Engineering Co. v. 
 Spmcer, (1886) 2 T.L.R. 554, followed. 
 
 Per Matheks C.J., in the Court 
 below. In the absence of any provision 
 that, in the event of the owners exercising 
 their power to forfeit the contract, the 
 liquidated damages for delay were still to 
 run till the date of the actual completion, 
 they could not recover such damages for 
 any time beyond the date ol the forfeiture : 
 3 Halsbury's Laws of England, s. 514. 
 
 Yeadon Water Works Co. v. Binns, 
 (1895) 72 L.T. 538, followed. 
 
 Neither would the defendants be 
 entitled to unhquidated damages for delay 
 beyond that date: Hudson on Building, 
 Contracts, vol. 1, p. 543. Grace v. Osier 
 21 M. R. 641. 
 
 5. Substantial completion— Deuia- 
 
 tions from specifications — 'Performance of 
 contract must be exact — Provision incon- 
 sistent with lien — Costs. 
 
 Where work is to be done in a specified 
 manner and to be paid for on completion, 
 and it is done in a different manner, or so 
 defectively as to justify an allowance for 
 the defects, and the party for whom it is 
 done refuses to acquiesce in' the variations 
 or defects or to accept the work, "but 
 simply takes the position that the work- 
 
115 
 
 BUILDING CONTRACT. 
 
 116 
 
 man must perform it according to the 
 express stipulations and perfectly, and 
 interposes no obstacle to this being done, 
 the workman cannot recover anything 
 before this is done. 
 
 At the hearing of a suit to realize a 
 mechanic's lien for the balance of the 
 contract price of the erection of a dwelling 
 house, the J\idge found that there were 
 defects and variations in the construction 
 requiring a deduction of S40 from the 
 total sum of $1400, and made a decree in 
 favor of the plaintiff for payment of the 
 balance of the contract price with a 
 deduction of the $40. ^ 
 
 .The evidence, however, showed that 
 the defendant had not acquiesced in the 
 changes and had complained of the defects. 
 
 Hdd, by thelFuU Court on rehearing, 
 that under such circumstances the plain- 
 tiffs could only recover that portion of 
 the price which was to be paid as the 
 work progressed. 
 
 The contract contained a provision that, 
 if the defendant should fail to pay the 
 J)alance of the price, $1000, on the com- 
 pletion of the building, the plaintiffs were 
 "to become the sole owners of the property 
 until the said $1000 be paid." 
 
 Hdd] that this was not inconsistent 
 with a lien for that part of the contract 
 price which was payable as the work 
 progressed. ' 
 
 The plaintiffs having recovered only 
 $110 by the suit, for which they might 
 Jiave sued in the County Court, and the 
 defendant iaving disputed the whole 
 claim throughout and raised a number of 
 untenable objections, the Court allowed 
 no costs to either party up to and including 
 the decree, but gave the defendant the 
 costs of the rehearing to be set off against 
 the plaintiff's verdict. Brydon v. Luies, 
 9 M. R. 463. 
 
 6. Substantial completion — Unim- 
 portant defects — Waiver of strict perfor- 
 mances-Amendment. 
 
 Action to recover balance of contract 
 price of erection of a dwelling for defend- 
 ant. Objection was made to plaintiff's 
 right to recover on account of the follow- 
 ing defects: 
 
 1. The specifications required that the 
 walls should be 'Taeam filled or bmlt in 
 between the joists on the inside," whereas 
 the plaintiff had only put in one row of 
 ■ bricks above the inner side of the founda- 
 tion wall between the joists to the floor 
 above, thus leaving an empty air space 
 
 between the bricks and the outer wooden 
 wall of the house. 
 
 2. Want of quarter round in the 
 kitchen and bath room. 
 
 3. Want of collar ties to the rafters. 
 The defendant had been in occupation 
 
 of the house for nearly two years without 
 specifically mentioning the 2nd and 3rd 
 defects, to supply which would have cost 
 only about $7, and, when examined for 
 discovery before .the trial, had not men- 
 tioned them. They were raised for the 
 first time at the trial. He hadi however, 
 always objected to the beam filling as not 
 'being in accordance with the specifica- 
 tions, and as causing the freezing of his 
 water pipes, and had often complained 
 about the work as a whole. 
 
 Per Howell, C. J. A. and Perdue, J. 
 A. The manner in which the beam 
 filling was done sufficiently complied with 
 the contract, and the defendant should be 
 held to have waived the requirements as 
 to the quarter round and collar ties." 
 The plaintiff should be allowed to amend 
 if necessary so as to set up such waiver. 
 
 Per Richards, J.A. The beam fiUing 
 or building in -between the joists above 
 the foundation required by the specifica- 
 tion meant such a building in as would 
 fill up the spaces from the wooden walls 
 to the inner line of the foundation, and, 
 as the plaintiff had refused to do the 
 work in that manner, he should not 
 recover. , 
 
 Forman v. Liddesdale, [1900] A. C. 190, 
 referred to. 
 
 Per Phippen, J.A. (Expressing no 
 opinion as to the sufficiency of the beam 
 fiOing.) As it was admitted that the 
 plaintiff had not put in the quarter round^'' 
 or the collar ties, and it was not claimed 
 either by the pleadings or the evidence that 
 the defendant had waived the strict per- 
 formance of the contract or entered into 
 any new agreement with the plaintiff in 
 regard to the work, the plaintiff could not 
 recover, notwithstanding there had been 
 substantial completion of the work in all 
 other respects. 
 
 Brydon v. Lutes. (1891) 9 M. R. 463; 
 and Oldershaw v. Cfamer, (1876) 38 U.C.R. 
 37, followed. 
 
 No amendment of the statement of 
 claim should be allowed, as none was 
 asked for either at the trial or on the 
 hearing of the appeal and there was no 
 evidence directed to any issue of waiver 
 or estoppel. 
 
117 
 
 BUILDINGS. 
 
 118 
 
 The Coxirt being eciually divided, the 
 appeal from the verdict of Cameron, J., 
 in favor of the plaintiff was dismissed 
 without costs. Davis v. O'Brien, 18 M. 
 R. 79. 
 
 7. Substantial completion of work — 
 
 Trifling omissions. 
 
 The plaintiffs contracted to "put in a 
 complete job of steam heating" for the 
 sum of $660. According to the findings of 
 fact, they did the work in a satisfactory 
 manner and within a reasonable time. 
 They had omitted, however, to provide ■ 
 floor and ceiling plates around the pipes. 
 These plates were shown to cost about 
 ten cents each and about $4 for all. 
 
 Held, following Lucas v. Godwin, (1873) 
 3 Bing. N. C, 744, and Stavers v. Curling, 
 (1836) 3 Scott, 755, that the omission of 
 these plates should be considered as so 
 trifling that the plaintiffs should not 
 thereby be deprived of the whole con; 
 sideration of a .contract substantially 
 completed, and that the plaintiffs were 
 entitled to recover. Adams v. McGreevy, 
 17 M. R. 115. 
 
 See Ahbitration and Awabd, 11. 
 — ■ Covenants, 4. 
 
 — Mechanics' Lien, V, 2. 
 
 — Municipality, II, 3. 
 
 — Pbincipal and Agent, III, 2. 
 
 — Sale op Goods, VI, 6. 
 
 BUILDINGS. 
 
 See Mttnicipality, I, 2, 6. 
 — Negligence, IV. 1. 
 
 See Libel, 1. 
 
 — • Liquor License Act, 4. 
 
 — Malicious Pbosecution, 5. 
 
 — Master and Servant, IV, 1. 
 
 — Negligence, V, 1. 
 
 — Partnership, 3. 
 
 — Payment by Cheque. 
 
 — ■ PliEADING, I, 2. 
 
 — Practice, XX, C. 
 
 — Railways, VIII, 3. 
 
 — Real Property Act, II, 5, 6, 9. 
 
 — ■ Real Property Limitation Act, 6. 
 
 — Sale of Goods, II, 1. 
 
 — Sale of Land fob Taxes, IV, 3; V, 
 
 2; VIII, 3. 
 
 — Vendor and Purchaser, VI, 5. 
 
 — Weights and Measures Act, 1. 
 
 — Will, III, 4. 
 
 BUSINESS TAX. 
 
 See Taxation, 1, 2. 
 
 BY-LAW. 
 
 See Corporation, 2. 
 
 — Criminal Law, X, 4. 
 
 — Judicial' District Boards, 1. 
 — t Municipality, I. 
 
 BY-LAW AUTHORIZING 
 ARBITRATION. 
 
 See Expropriation of Land, 3. 
 
 BURDEN OF PROOF. 
 
 See Accident Insurance, 2. 
 
 — Automobile. 
 
 — Bills and Notes, VIII, 10, 11. 
 — • Chose in Action, 1. 
 
 — Conviction, 4. 
 
 — coujjty couet, ii, 4. 
 
 — Election Petition, X, 1, 2. 
 
 — ■ EVIDBNCE, 27. 
 
 — Fi. Fa. Goods, 4. 
 
 — Fixtures, 6. 
 
 — Fraudulent Conveyance, 2, 3, 11, 14 
 
 — Fraudulent Judgment, 3, 4. 
 
 — Garnishment, V, 7. 
 
 — HuSiBAND AND WiFE, I, 4; III, 2. 
 
 — Infant, 3. 
 
 BY-LAW OF MUNICIPALITY. 
 
 See Criminal Law, X, 4. 
 
 — Local Option By-law, I, 2. 
 
 — Mandamus, 1. 
 
 — Municipality, III, 3; V, 1, 2; VI, 2; 
 
 VII, 1. 
 
 — Nuisance, 1, 5. 
 
 — Railways, VIII, 3. 
 
 CANADIAN PACIFIC RAILWAY 
 LANDS. 
 
 1. Exemption from taxation— Afean- 
 
 ing of words "grant from the Crown" in 
 clause 16 of the contract between the Govern- 
 
119 
 
 CANADIAN PACIFIC RAILWAY LANDS. 
 
 120 
 
 ment of Canada and the Railway Company 
 set out in 44 Vic, c. 1 — Meaning of words 
 "taxation by the Dominion" in same clause 
 — Time of vesting of land grant in the 
 Company. 
 
 The words "grant from the Crown" in 
 clause 16 of the contract between the 
 Government of Canada and the promoters 
 of the Canadian Paoifio Railway, ratified 
 by Act of Parliament, 44 Vic, c. 1, mean 
 the letters patent conveying the land, 
 and the twenty years' exemption from 
 taxation provided for in that clause do 
 not begin to run, in respect of any par- 
 ticular parcel, till the date of the letters 
 patent. ^ 
 
 The words "taxation by the Dominion" 
 in the same clause do not include taxation 
 by school corporations created by the 
 Government of the Northwest Territories 
 under powers of legislation conferred 
 upon it by various Acts of Parliament 
 prior to the statute referred to, and, 
 consequently, the Railway Company is 
 not exempted by said clause from taxation 
 of its lands by such a school corporation 
 until such lands shall be included in a 
 Province hereafter to be created. 
 
 Under the contract referred to and the 
 Company's charter of incorporation and 
 the ratifying Act, 44 Vic, c 1, it was not' 
 intended that it should take any vested 
 interest in any specific lands until actual 
 formal conveyance from the Crown by 
 letters patent in the usual course. Rural 
 Municipality of North Cypress v. C. P. R., 
 Rural Municipality of Argyle v. C. P. R., 
 Springdale School District v. C. P. R., 14 
 M. R. 382. 
 
 See next case for decision on appeal 
 to the Supreme Court. 
 
 , Assessment and taxation — Con- 
 stitutional law — Exemptions from taxation — 
 Land subsidies of the Canadian Pacific 
 Railway — -Extension of boundaries of Mani- 
 toba — ■ Construction of Statutes— B. N. 
 A. Acts 1867 and 1871—33 V., c. 3 (D.) 
 —43 v., c. 25 (£>.)- 44 V., c. 14 (£>.)— 44 
 v., cc. 1 and 6 (.3rd Sess.), (Man.)— 
 Construction of Contract — Grant in praesenli 
 — Cav^e of action — Jurisdiction — Waiver. 
 The land subsidy of the Canadian 
 Pacific Railway Company authorized by 
 the Act, 44 Vic.,-c. 1 (D.), is- not a' grant _ 
 in prcBsenti and, consequently, the period 
 of twenty years of exemption from taxa- 
 tion of such lands, provided by the six- 
 teenth section of the contract for the 
 construction of the Canadian Pacific 
 Railway, laegins from the date of the 
 
 actual issue of letters patent of grant 
 from the Crown, from time to time, after 
 they have been earned, selected, surveyed, 
 allotted and accepted by the Canadian 
 Pacific Railway Company. ^ 
 
 The exemption was from taxation "by 
 the Dominion, or any Province hereafter 
 to be established or any municipal cor- 
 poration therein." 
 
 Held, that when, in 1881, a portion of 
 the North- West Territories in which this 
 exemption attached was added to Mani- 
 toba the latter was a province "thereafter 
 established" and such added territory 
 continued to be' subject to the -said 
 exemption from taxation. 
 
 The limitations in respect of legislation 
 affecting the territory so added to Mani- 
 toba, by virtue of the Dominion Act, 44 
 Vic, -c, 14, - upon the terms and con- 
 ditions assented to—by the Manitoba 
 _Acts, 44 Vic, (3rd Sess.), cc 1 and 6, 
 are constitutional hmitations of the 
 powers of the Legislature of Manitoba in 
 respect of sueh Added territory and em- 
 brace the previous legislation of the 
 Parliament of Canada relating to the 
 Canadian Pacific Railway and the land 
 subsidy in aid of its construction. 
 
 Taxation of any kind attempted to be 
 laid upon any part of such land subsidy 
 by the North-West Council, the North- 
 West Legislative Assembly or any muni- 
 cipal or school corporation therein^ is 
 Dominion taxation within the meaning of 
 the sixteenth clause of the Canadian 
 Pacific Railway contract providing for 
 exemption from taxation. 
 
 ^Per Taschereau, C.J. — In the case of 
 the Springdale School District, as the 
 whole cause of action arose in the North- 
 West Territories, the Court of King's 
 Bench for Manitoba had no -jurisdiction 
 to entertain the action or to render the 
 judgment appealed from in that case and 
 such want of jurisdiction could not be 
 waived. Rural Municipality of North 
 Cypress v. C. P. R. Rural Municipality 
 of Argyle v. C. P. R. C. P. R. v. Spring- 
 dale School District, No. 23, o/ the North- 
 West Territories, 35 S.C.R. 550. 
 
 2. License to hold lands — Ultra vires. 
 
 The Canadian Pacific Railway-Company 
 has power, without taking out the Ucense 
 required by the statutes of this Province, 
 to take, hold, acquire, dispose of, sell, or 
 contract to sell or grant, the lands sit- 
 uated in-the territory added to Manitoba 
 in 1881, which have been granted and are 
 to be granted to the Company as part of 
 
21 
 
 CANCELLATION OF AGREEMENT. 
 
 122 
 
 its subsidy ior, the construction and 
 operation of its railway, under 44 Vic, 
 c. 1. (D. 1891). 
 
 49 Vic, c. 11. (M. 1886), and 53 Vic, 
 e. 23 (M. 1890), are vltra vires in so far 
 as they affect the C. P. R. Co., in respect 
 of any of the above mentioned lands. 
 Canadian Pacific Railway Company Re, 
 7 M. R. 389. 
 
 3. Sale of land for taxes — "Sold or 
 occupied" — Constitutional law. 
 
 By reason of the legislation extending 
 the limits of the Provincey the Legislative 
 Assembly is bound to regard Dominion 
 legislation with reference to theCanadian 
 Pacific Railway Company. 
 
 By statute the lands of the Company 
 were to be free from taxation for a certain 
 
 geriod unless "sold or occupied." The 
 lompany made an agreement for sale of 
 certain of the lands upon certain condi- 
 tions. The conditions not having been- 
 performed) the Company cancelled the 
 agreement, as by its terms it was entitled 
 to do. There never was any actual 
 occupation, of the land. 
 
 Held, That the land had never been 
 sold or occupied, and that it was, there- 
 fore, not subject to municipal taxation. 
 C. P. R. v. Burnett, 5 M. R. 395. 
 
 jSee Sale of Land toe Taxes, X, 2. 
 
 CANCELLATION OF AGREEMENT. 
 
 See Vendor and Purchaser, VII, 7. 
 
 CANCELLATION OF CONTRACT. 
 
 See Contract, II, 2; V, 2. ~^ 
 — • Jurisdiction, 4. 
 
 — Registered Judgment, 5. 
 
 — Vendor and Purchaser, II; VI, 12; 
 
 VII, 2. 
 
 CANCELLATION OF CROWN 
 PATENT. 
 
 See Crown Patent, 1. 
 
 CAPIAS. 
 
 1. Applicjition for ca. re.— Sufficiency 
 of affidavit. 
 
 Held, The statute Con. Stat. Man., c. 
 37, s. 73, does not require that any par- 
 ticular words should be contained in the 
 affidavit used on an application for a 
 ca. re., but only that such facts and cir- 
 cumstances be shown as will -satisfy a 
 judge that the case is one proper for a 
 writ tolssue. O'Connor v. Kyle, 2 M. R. 
 220. 
 
 2. Deputy prothonotary, powers of 
 
 — Signing and sealing unfits — Defects in 
 capias — Amendment — Intention to defraud. 
 Held, 1. Writs must be both signed 
 and sealed. 
 
 2. The authority of the deputy pro- 
 thonotary with respect to the signing of 
 writs is co-extensive with tha* of the 
 prothonotary. 
 
 3. Writs may be signed by the deputy 
 prothonotary in his own name. 
 
 4. Deviations, in a writ of capias, from 
 the form prescribed, do not vitiate the 
 writ,- unless they affect the substance or 
 are calculated to mislead. 
 
 5. It is not necessary to state the cause 
 of action in a writ of capias. 
 
 6. The omission of the words "to wit" 
 is unimportant. 
 
 7. The writ should show against whonj 
 it is issued and that distinctly and in 
 terms. An amendment, however, was 
 
 Eermitted, the writ taken as a whole not 
 eing capable of misconstruction. 
 
 8. An intention to defraud creditors 
 may be inferred from a purpose to leave 
 the Province -without showing any con- 
 sideration for creditors or any desire to 
 pay off the indebtedness^'at all events 
 where it does not appear that the intended 
 departure was with the expectation of 
 the more qilickly paying off debts. 
 
 9. A judge in chambers has jurisdiction 
 to order the discharge of a defendant 
 arrested under a,j:a. re., either upon the 
 merits or upon technical grounds. He 
 has no power to set aside a writ upon the 
 grouild that the judge should not have 
 been satisfied with the material upon 
 which it was granted. 
 
 10. An application in chambers for a 
 discharge is no bar to a subsequent 
 appheation to the court to set aside the 
 order. Green v. Hammond^ 3 M. R. 97 
 
123 
 
 CAPITAL OR INCOME. 
 
 124 
 
 3. Evidence on application for 6ia- 
 
 chaxge— Construction of stat-utes. 
 
 On an application for the discharge of 
 the defendant, who had been arrested 
 under a writ of ca. sa., plaintiff proposed 
 to read in opposition to the motion, (1.) 
 The crcfss-examination of the defendant 
 upon his affidavit filed in support of the 
 appUcation; (2.) his examination as . a 
 judgment debtor; and (3.) certain 
 affidavits. 
 
 Hdd, by the Full Co^u^;, reversing 
 the order of Wallbridge, C.J. 
 
 That the evidence tendered should have 
 been received. 
 
 Qvare; Would depositions of the de- 
 iendant taken at the trial of another 
 action be admissible. 
 
 A statute prescribed that upon an 
 ajiplication the judge, "upon hearing read" 
 certain material, might make an order, 
 
 Hdd, that the statute did not exclude 
 the use of material other than that 
 specifically mentioned. Keeler v. Hazel- 
 wood, 2 M. R. 149. 
 
 4. Cause of action doubtful — Mia- v 
 nomer. 
 
 The affidavit upon which a capias 
 
 • issued disclosed a good cause of action, 
 
 but examination upOn it rendered success 
 
 very doubtful. Upon a motion to set 
 
 aside the writ, 
 
 Hdd, That the Court should not inter- 
 fere unless it was very clear that the 
 plaintiff must fail. 
 
 The affidavit gave the defendant's 
 name as "J. !E(erkwin Johnson." His 
 proper name was "Berkwin Johnson," 
 but he had been sued and had pleaded as 
 "J. B. Johnson," and admitted that he 
 frequently used the "J" as a distinguishing 
 letfe. In the order and writ the name 
 was "J. B. Johnson." 
 
 Held, That the order and writ were 
 defective, but might be amended upon 
 payment of costs. Anderson y. Johnson, 
 GM.R. 113. 
 
 5. Discharge of Prisoner — ■ Action 
 upon County Court Judgment. 
 
 1. A capias will not be set aside on the 
 ground that the plaintiff has no cause of 
 action, unless that fact clearly appears. 
 
 2. Where the debt is sworn at S135, 
 bail ordered at $200 is not excessive. 
 
 3. Senible. An action will lie upon a 
 County Court judgment. Boyd v. Irwin, 
 3M. R.90. 
 
 V 6. TTame of defendant not in full — 
 
 Part of cause of action assigned to plaintiff 
 by another creditor. 
 
 ■The defendant- was arrested under a 
 writ of capias. In the writ and in the 
 affidavits to hold to bail, the defendant 
 was called Daniel F. Freeman. His true 
 name was Daniel Foster Freeman. 
 
 Held, Sufficient. 
 
 The C.ourt will not interfere on the 
 ground of the cause of action being in- 
 sufficiently stated, unless it is very clear 
 that the plaintiff has no cause of action. 
 
 The statute provides that no writ of 
 capias shall be issued for a cause of action 
 less than $100. The -debt owing by de- 
 fendant to plaintiff was under $100, and 
 the plaintiff procured an assignment to 
 himself of a debt owing by defendant to 
 another creditor, the two together amount- 
 ing to more than $100. On the joint 
 indebtedness he obtained a writ of capias. 
 - Held, Unobjectionable. Bryan v. Free- 
 man, 7 M. R. 57. , 
 
 CAPITAL OR INCOME. 
 
 See Will, I, 3; II, 1, 2; III, 1. 
 
 CARNAL KNOWLEDGE. 
 
 See Criminal Law, IV, 1, 2. 
 
 CARRIERS. 
 Liens and Charges. 
 
 Connecting Lines— Con/roci with First 
 Carrier — Bight of Last Carrier to Freight — 
 lAen for Freight.] 
 
 When goods are carried by several 
 successive carriers, under a contract made 
 with the ffi-st to carry the goods the 
 whole distance, the intermediate and last 
 carriers are, in the absence pf special con- 
 ditions, the agents of the first, and there 
 is no privity between thein and the con- 
 signor or consignee, and .therefore they 
 cannot claim freight either by impUed 
 contract or lien, beyond the amount 
 contracted for by. the first carrier. 
 
 The last carrier may, as agent for the 
 first with whom the contract was made, 
 collect the freight due, to the-first, either 
 under contract or by asserting a lien on 
 the goods. 
 
125 
 
 CASE RESERVED. 
 
 126 
 
 The plaintiff shipped goods at St. John's, 
 Quebec, by tlje Grand Trunk Railway Co., 
 consigned to himseU at St. Norbert, 
 Manitoba, taking a bill of lading showing 
 the mode of transportation, by several 
 connecting lines to Winnipeg, and paid 
 the freight in advance. When the plaint- 
 iff demanded the goods at Winnipeg, the 
 defendants, who were the last of the 
 carriers, claimed a lien thereon for charges 
 paid by them to intermediate carriers 
 from whom they had received them, and 
 for freight for carriage by their own line. 
 
 Held, that they were not entitled to 
 the amounts claimed. Trottier v. Red 
 River Transportation Co., T. W., 255. 
 
 CASK RESERVED. 
 
 See Cbiminal Law, XIV, 4; XVII, 1. 
 
 CASE STATED BY MAGISTRATE. 
 
 See Criminal Law, XVII, 10. 
 
 CAUSE OF ACTION. 
 
 See Administration, 4. 
 
 — Counterclaim, 2. 
 
 — CouNTT Court, I, 8. 
 — ■ Jurisdiction, 1, 7, 8. 
 
 — Lord Campbell's Act. 
 ^ Pleading, XI, 6. 
 
 CAVEAT. 
 
 See Affidavit. 
 
 — Conditional Sale, 5. 
 
 — Homestead, 1. 
 
 — Real Property Act, I, III, 1. 
 
 CAVEAT EMPTOR. 
 
 See Misrepresentation, IV, 1. 
 — Sale op Goods, VI, 1. 
 
 CERTIFICATE OF BAPTISM. 
 
 See Title to Land, 4. 
 
 CERTIFICATE OF CONVICTION. 
 
 See LicjuoR License! Act, 6. 
 
 CERTIFICATE OF JUDGMENT. 
 
 - See Pleading, IV, 1. 
 — Registered Judgment, 4, 8. 
 
 CERTIFICATE OF STATE 
 OF CAUSE. 
 
 iSee Practice, V, 1. 
 
 CERTIFICATE OF TITLE. 
 
 See Mortgagor and Mortgagee, 1, 3. 
 
 — Real Property Act, IV, 2; V, 2, 
 
 — Vendor and Purchaser, VI, 9. 
 
 CERTIORARI. 
 
 1. Jurisdiction of Judge in Cham- 
 bers — Conviction for breach of a municipal 
 by-law. . 
 
 A Judge ia Chambers has jurisdiction 
 to order the issue of a writ of certiorari 
 to bring up the record of a conviction for 
 a breach of a municipal by-law, if the 
 appUcation is made when neither the 
 Court of Appeal nor the FuU Court of 
 King's Bench is sitting. But all further 
 proceedings after the return of the writ 
 must be taken in one or other of these 
 courts. 
 
 Reg. V. Beale, (1896) 11 M.R. 448; Reg. 
 V. Crothers, (1897) 11 M.R. 567, and /n 
 re Dupas, (1899) 12 M.R. 654, referred to. 
 Re Hunter, 16 M. R. 489. 
 
 2. Practice in — County Judge or magis- 
 trates — Amendment of notice. 
 
 S., having been convicted before magis- 
 trates, took proceedings to appeal to the 
 County Judge and procured the papers 
 to.be sent to his clerk. Afterwards and 
 before any proceeding by the judge, he 
 had the papers returned to the convicting 
 justices. Upon notice to the justices of 
 an appUcation for a certiorari to be 
 directed to them he moved for the writ. 
 
 Held, 1. That the return of the papers 
 to the justices was irregular and that the 
 
127 
 
 CHALLENGING JUROR. 
 
 128 
 
 csrtiorari should go to the County Judge, 
 he being the legal custodian of the papers 
 sent-to him for the purpose of the appeal. 
 
 2. That the notice for a certiorari to be 
 directed to the convicting justices could 
 not be amended. 
 
 It was then contended that the statute 
 13 Geo. 11, c. 18j s. 5, entitles the convict- 
 ing justices only to the six days notice, 
 and that the County Court Judge was not 
 , entitled to any notice of motion for the 
 writ and that the notice to the justices 
 might be treated as a nullity and the 
 order made for the writ to go directed 
 to the County Court Judge. Bijt: 
 
 Held, that, although the justices only 
 may be entitled to the statutory notice, 
 yet, where the records of the conviction 
 have passed into the custody of another 
 officer not entitled to notice, the justices 
 ought to have notice of the motion for 
 the writ proposed to be directed to such 
 officer, and that a new motion must be 
 made for^ certiorari to the County Judge 
 and notice thereof given to the justices. 
 Present application dismissed without 
 costs. 
 
 It is not necessary that the afiidavits 
 by which objections are raised should be 
 sworn and filed before service of the 
 notice on the magistrates. The notice 
 must show, who the party moving is. 
 
 The practice of arguing the validity of 
 th^e conviction upon the appHcation for 
 the certiorari does not apply, except when 
 the parties consent. 
 
 The pendency pi an appeal to the 
 County Judge does not interfere with 
 certiorari'i unless, at all even|;s, the question 
 of jmrisdiction is raised upon the appeal. 
 Reg. V. Starkey, 6 M. R. 588. 
 
 3. Summary Conviction — Proceeding 
 loithout summons — Waiver. 
 
 A statute providing that there should 
 be "no appeal" against a conviction, 
 Held, Not to take away the. right of 
 certiorari. 
 
 Unless dispensed with by statute or 
 waived, there must be some previous 
 summons or notice, to the party charged, 
 of the hearing of the charge against hun. 
 
 This may be waived by appearing, 
 pleading and defending. But asking an 
 adjournment for the purpose of procuring 
 evidence is not necessarily a waiver. Reg. 
 V. Vrooman, 3 M. R. 509. 
 
 See CoNSTiTUTioNAii Law, 4. 
 
 — Conviction, 1, 5. 
 
 — Costs, XIII, 20. 
 
 See Criminal Law, 1, 1; XII, 1; XIII, 3, ?• 
 — ■ Liquor License Act, 4, 7. 
 
 — NuL TiBL Record, 1. 
 
 — Practice, XXVIII, 3. 
 
 — Prohibition, III, 2. 
 
 — Summary Conviction. 
 
 CHALLENGING JUROR. 
 
 See Criminal Law, XIV, 1. 
 — ; JuRT Trial, I, 2. 
 
 CHAMPERTY. 
 
 See Half-Breed Lands Act, 2. 
 
 CHANGE OF POSSESSION. 
 
 See Fraudulent Conveyance, 14. 
 — Sale op Goods, I, 1, 2. 
 
 CHARACTER— EVIDENCE AS TO. 
 
 See Evidence, 5. 
 
 — False Imprisonment, 3. 
 
 CHARGE ON LAND. 
 
 See Church Lands Act, 1. 
 
 — Conditional. Sale, 5. 
 
 — Contract, XV, 5. 
 
 — ■ Description op Land, 1. 
 
 '^ Dominion Lands Act, 2, 3. 
 
 — Estoppel, 4. 
 
 — Exemptions, 10. 
 
 — • Fraudulent Conveyance, 5. 
 — ■ Infant, 7. 
 
 — Registry Act, 3. 
 
 — Will, I, 1. 
 
 CHARGING ORDER 
 
 1. Election — Deposit by candidate. 
 
 The deposit of $200 made by M., a 
 ^andidate at an election for the Legis- 
 lature of Manitoba, was paid into court 
 by the Clerk of the Executive Council 
 under a garnishing order issued in a suit 
 
129 
 
 CHATTEL MORTGAGE. 
 
 130 
 
 against M. This order was afterwards 
 set aside. Afterwards H., who had a 
 judgment against M., appUed for a charg- 
 ing order under the provisions of 1 & 2 
 Vic. c. 110, s. 14. 
 
 Held, that the money was not within 
 the purview of the statute, and could not 
 be charged." Howe v. Martin, 8 M. R. 
 533. 
 
 2. Style of matter — Notice o} reading 
 affidavit. 
 
 A solicitor's petition for a charging 
 order should be intituled in the matter 
 of the Act. 
 
 The petition or notice must show upon 
 what material it is grounded. Wishart v. 
 Bonneau. 5 M. R. 132. 
 
 See Gaknishment, V, 5. 
 
 — Practice, XXVIII, 30. 
 
 — Solicitor's Lien for Costs. 
 
 CHATTEL MORTGAGE. 
 
 I. Affidavits. 
 
 II. On Growing Crops. 
 
 III. Possession Under. 
 
 IV. Purchaser WITH Notice OF. 
 
 V. MlBCELLANBOnS CaSES. 
 
 I. Affidavits. 
 
 1. Authority of agent to make — 
 
 Word "him" omitted. 
 
 A chattel mortgage is good though not 
 executed by the mortgagee, and though 
 the word "him" be omitted at the con- 
 clusion of the affidavit of bona fides. 
 
 Held, that the manager of the branch 
 of an incorporated Bank to which a 
 chattel mortgage is made for a debt due 
 the Bank at that branch is an agent 
 authorized to make the affidavit of bona 
 fides, under 34 Vic, u. 17. Ontario Bank 
 
 V. Miner, T. W., 167. 
 
 2. Blank in affidavit of bona fides. 
 
 The affidavit of bona fides attached to 
 a chattel mortgage contained the follow- 
 ing: ''the mortgagor in the foregoing bill 
 of sale by way of mortgage is justly and 
 truly indebted to me this deponent 
 Alexander Mclntyre, the mortgagee there- 
 in named, in the sum of dollars 
 
 mentioned therein.' ' 
 
 Held, insufficient. Mclntyre v. Union 
 Bank, 2 M. R. 305. 
 
 3. Jurat to affidavit — Bills of Sale and 
 Chattel Mortgage Act, R.S.M. 1902, c. 11, 
 s. & — Meaning of word "sworn." 
 
 1. The affidavit of bona Ades on a 
 chattel mortgage is sufficient, although 
 it purports to be the joint affidavit of 
 two mortgagees _and the jurat does not 
 show that they were severally sworn: 
 Moyer v. Dauidson, (1858) 7 U.C.C.P. 521. 
 
 2. The insertion in the affidavit of a 
 clause reading, "That I am the duly 
 authorized agent of the mortgagee," was 
 an apparent mistake and did not vitiate 
 it, although it was the affidavit of the 
 mortgagees themselves. 
 
 3. The fact that it is stated in the jurat 
 that the affidavit has been "sworn," 
 whereas the deponents affirmed, is not a 
 fatal objection, as by the Interpretation 
 Act the expressions "swear" and "sworn" 
 respectively include "affirm solemnly" 
 and "affirmed solemnly." 
 
 4. The Bills of Sale and Chattel 
 Mortgage Act, R.S.M. Ifl02, c. 11, s. 5, 
 does not require that the occupation of 
 the mortgagee should be stated in the 
 affidavit of bona fides. Brodie v. Ruttan, 
 (1858) 16 U.C.R. 207, followed. Dyck v. 
 Graening, 17 M. R. 158. 
 
 i. Affidavit of execution — Bills of 
 Sale Act — Affidavit sworn before mortgagee 
 as Commissioner. 
 
 Under The Bills of Sale Act, R.S.M., 
 c. 10, a mortgage is not rendered invalid_ 
 or void by reason^ of the affidavit of exe- 
 cution being sworn before the mortgagee 
 himself, he being a. Commissioner for 
 taking affidavits in The Queen's Bench. 
 
 Seal V. Claridge, (1881) 7 Q.B.D. 516, 
 distinguished. Inch v. Simon, 12 M. R. 1 
 
 5. Signature to jurat — Affidavit of 
 execution. 
 
 A chattel mortgage is invalid and of no 
 effect as against the execution creditors of 
 the mortgagor, where the jurat on the 
 affidavit of execution filed with the mort- 
 gage has not been signed by the com- 
 missioner before whom it was sworn, 
 although the mortgage was executed in 
 duplicate and the witness had signed and 
 sworn to the affidavits of execution on 
 both orig^^als, and the commissioner had 
 ■ signed the jurat on one of the originals, 
 omitting by inadvertence to sign the. 
 other, and both had been sent to the 
 clerk of the County Court for him to file 
 one, and return the other certified, the 
 clerk having retained the one with the 
 defective affidavit. 
 
131 
 
 CHATTEL, MORTGAGE. 
 
 132 
 
 The signature of a person having 
 authority to administer the oath is an 
 essential part of sa affidavit. Inman v. 
 Rae. Ramsay, Claimant, 10 M. R. 411. 
 
 6. Affidavit for renewal— Words hav- 
 ing same meaning as those in form pre- 
 scribed — Ovmership of offspring of mares 
 covered by mortgage-^Rerrwval of chattels 
 out of division, — Subsequent purchaser — 
 Bills of Sale and Chattel Mortgage Act, 
 R.S.M. 1902, c. ir, ss. 20, 29. 
 
 1. The legal estate in the offspring of 
 mares comprised in a chattel mortgage 
 covering them and also "the increase" 
 from them is in the mortgagee, and title 
 to such offspring cannot be acquired by 
 one who purchases them in good faith for 
 value although he receives delivery from 
 the mortgagor before the mortgagee 
 attempts to get possession. 
 
 Dillaree v. Doyle, (1878) 43 U.C.R. 
 442, and Temple v. Nicholson, (1881) 
 Cassels Sup. Ct. Dig- 114, followed. 
 
 2. Section 20 of the BUls of Sale and 
 Chattel Mortgage Act, R.S.M. 1902, c. 
 11, is sufficiently complied with by the 
 use of the expression "kept on foot," in 
 the mortgagee's affidavit lor renewal of a 
 chattel mortgage, instead of the, words 
 "kept alive" used in that sec|;ion, as the 
 two expressions mean th? same thing. 
 
 Emerson v Bannerman, (1891) 19 
 S. C. R. 1, foUowed. 
 
 3. The "subsequent purchaser" men- 
 tioned in section 29 of the Act, against 
 whom a chattel mortgage will cease to-be 
 vaUd upon goods - removed out of the 
 division where it is registered, unless a 
 certified copy is registered in the division 
 to which the goods have been removed 
 within six youths after the removal, 
 must be one who purchased after the 
 expiration of. such period of six months. 
 
 Hulbert v. Peterson, (1905) 36 S. C. R. 
 324, followed. Ropex v. Scott. Wallace 
 V. Scott. Galbraith v. Scott, 16 M. R. 594. 
 
 II. On Growing Crops. 
 
 1. Priority — Mortgage of crops to be_ 
 grown. 
 
 A chattel mortgage covering growing 
 
 crops or crops to be grown doe* not come 
 
 within the provisions of The Bills of Sale 
 
 -Act, R.S.M. , c. ,10, so as to need filing 
 
 under the Act to preserve its vaHdity. 
 
 Such a mortgage cannot prevail over 
 a prior execution in the hands of the 
 sheriff against the goods of the mortgagor. 
 Clifford V. Logan, 9 lyi, R. 423. 
 
 2. Affidavit of bona t.A.eB— Forms — 
 Deviation from prescribed forms — Interpre- 
 tation Act, R. S. M., c. 78, s. 8, .s-s (uw)— 
 Action against sheriff — Evidence_ — Jiidg- 
 ment, proof of — Right of action for'price of 
 goods when property not passed — Appeal 
 from County Court — Motion to strike , out 
 necessary — Q. B. Act, 1895, Rule 168, (6), 
 (d) — Seed grain mortgage. ^ 
 
 In an action by the plaintiff claiming 
 damages from the defendant as sheriff 
 for the^ seizure of the grain grown 6n the 
 lands of one Murray under an execution 
 in his hands, the plaintiff claimed the 
 grain by virtue of a chattel mortgage for 
 the purchase money of seed grain supplied 
 to Murray in the spring of the same year. 
 Murray, being in want of seed at that 
 time, applied to the plaintiff, who gave 
 him an order on a firm of grain dealers 
 for the amount required, and took the 
 mortgage in question, which was Com- 
 pleted and registered before Murray 
 actually got the grain. The dealers after- 
 wards suppUed the grain to Murray atid 
 charged the price to the plaintiff, who 
 paid it. 
 
 •The affidavit of bona fides attached to 
 the mortgage contained a statement that 
 the mortgage was taken "for seed grain," 
 but did not contain the full statement 
 required by the statute, 57 Vic, c. 1, s. 2, 
 "that the same, is taken to secure the 
 purchase price of seed grain." 
 
 The defendant gave no evidence of the 
 judgment against Murray, on which the 
 execution in his hands had been issued. 
 
 Held, Taylor, C. J., dissenting, that 
 the chattel mortgage had really been 
 taken to secure the purchase price of seed- 
 grain within the meaning of the statute 
 and not merely as security for money 
 advanced by the plaintiff to_ Murray to 
 purchase the grain, and was, ' therefore; 
 good and valid as against the mortgagor, 
 and that no affidavit or registration was 
 necessary to protect the plaintiff's rights 
 as against the mortgagor. 
 
 Held, also, unanimously, that in a case 
 like the present where some third party 
 brings an action 'against the sheriff for 
 seizure of goods under an execution and 
 estabUshes a prima facie case of title as 
 against the execution debtor, the sheriff 
 must prove a judgment as well .as an 
 execution: White v. Morris, 11 C. B. 
 1015; Atkinson on Sheriffs, 6th ed.' 304, 
 followed; McLean v. Hannon, 3 S. C. R. 
 706, and Crowe v. Adams, 21 S. C. R. 
 342, distinguished. i 
 
133 
 
 CHATTEL MORTGAGE. 
 
 134 
 
 Held, also, Ddbuc," J., dissenting, that 
 notwithstanding section 8, sub-sec. (uu) 
 of the Interpretation Act, E,. S. M., c. 
 78, the affidavit of the mortgagee did not 
 sufficiently comply with the statute, and 
 that the mortgage would, therefore, not 
 have been sustained as against the de- 
 fendant representing a creditor if he had 
 given evidence of the judgment. 
 
 Per KiLLAM, J. There may be a right 
 of action, and the relation of debtor and 
 creditor may exist for the price of goods, 
 although the property has not passed, if 
 the parties have .made an agreement to 
 that effect: Waierous v. Wilson, 11 M. 
 R., at p. 295. 
 
 When an appeal from a County Court 
 is set down for hearing before the FuU 
 Court, a m6tion to strike it out must be 
 made under Rule 168 (6) of the Queen's 
 Bench Act, 1895, within the time there 
 limited, and no objections to the pro- 
 ceedings Wd steps leading up to the appeal 
 can be entertained at the hearing: Rule 
 168 (d). Kirchhoffer v. Clement, 11 M. 
 R. 460. 
 
 3. Seed grain — Afidavit of bona fides-r 
 Landlord and Tenant — Distress for, rent — < 
 Bills of Sale and Chattel Mortgdge Act, 
 B. S. Af. 1902, c. 11, ss. 12, 39. 
 
 1. Under a lease for a yeaT, dated 6th 
 April, reserving as rent one-third of the 
 crops and providing that the lessee should 
 thresh the grain and draw it to the 
 elevator or cars to be stored and shipped 
 as might be agreed between, the parties 
 in the name of the lessor, but fixing no 
 time when i,hat was to be done, there is 
 no rent due until the end of the year and 
 a distress by the landlord in November 
 following is illegaL 
 
 2. A distress for rent is unlawful if the 
 tenant is not in possession at the time: 
 Bell on Landlord and Tenant, p. 271. 
 
 3. A chattel mortgage will not be held 
 void, under sfection 12 of. The BiUs of 
 Sale and Chattel Mortgage Act, R. S. M. 
 1902, c. 11, because the affidavit of bona 
 fides made by an agent stated that he 
 had "a knowledge of all the facts connected 
 
 ■ with the said mortgage," instead of say- 
 ing, in the words of the section, that he 
 was "aware of aU the circumstances." 
 
 Emerson v. Bannerman, (1891) 19 S. C. 
 R. 1, and Rogers v. Carroll (1899) 30 0. R. 
 328 foUowed. 
 
 4. It is no objection to a mortgage on 
 growing crops to secure the price of seed 
 
 grain supplied that the grain had not 
 been sold to the mortgagor by the mort- 
 gagee himself, but was purchased by him 
 for the mortgagor from a third party. 
 
 Kirchhoffer v. Clement, (1896) 11 M. R. 
 460, followed. 
 
 5. Under section 39 of the Act, it is a 
 fatal objection to a mortgage on growing 
 crops or crops to be grown, if it is taken 
 for anything beyond the price of the seed 
 grain furnished and interest thereon. 
 Meighen v. Armstrong, 16 M. R. 5. 
 
 III. Possession Under. 
 
 1. Void chattel mortgage^Ba:emp- 
 tiona a personal privilege. 
 
 Held, 1. Independently of 46 & 47 Vic, 
 c. 30, (which is not retrospective), a writ 
 of execution against goods binds from its 
 delivery to the sherifi, except as against 
 the title of any person acquired bona fide 
 and for a valuable consideration before 
 the actual seizure, provided such person 
 had not, at the time he acquired such 
 title, notice that the writ, or any other 
 writ by virtue of which the goods might 
 be seized or attached, had been delivered 
 to, and remained unexecuted in the hands 
 of, the sherifi. 
 
 2. A chattel mortgagee whose mortgage 
 was prior to an execution, but was void 
 as against it for non-compliance with the 
 Act, cannot, by taking possession after the 
 deUvery of the writ to the sheriff, claim 
 to be a purchaser for value without 
 notice of the writ.' 
 
 3. Exemption from seizure under exe- 
 cution is a privilege that can be claimed 
 by the debtor only. Young v. Short, 3 
 M. R. 302. 
 
 2. Change of possession— BiZZs of 
 
 Sale Act, R.S.M., c. 10, s. 2— Sale of Goods 
 Act, 1896, (M.) ss./ 4, 18, ZS—Sale of 
 unascertained or future goods by descrip- 
 tion — Affidavit of bona fides. 
 
 The defendant in February, 1898, 
 while visiting the camp of one Ryan, who 
 was then engaged in cutting cordwood on 
 a certain limit, entered into a verbal con- 
 tract with Ryan by which the latter was 
 to dehver about 85 cords of wood on the 
 station grounds at Molson on the C. P. R., 
 at a point indicated by defendant, in 
 pajTnent of a debt. During the following 
 month Ryan haxiled out and piled about 
 85 cords of the wood in the place indi- 
 cated and notified the defendant thereof. 
 He also hauled out and piled in different 
 
135 
 
 CHATTEL MORTGAGE. 
 
 136 
 
 parts of the same grounds about 1,500 
 cords besides. 
 - _ The .plaintiff J to whom also Ryan was 
 indebted, obtamed from him a chattel 
 mortgage, dated 7th April, 1898, covering 
 the wood delivered for defendant and a 
 large quantity of other wood piled at 
 the^ same station. This mortgage was 
 registered in the proper office on the 14th 
 of the same jmonth. 
 
 A few days after, the defendant went 
 to Molson, accepted the 85 cords in ques- 
 tion, and had it shipped away, when the 
 plaintiff replevied all he could find of it. 
 
 Held,^ (1) DuBtrc. J., dissenting, that 
 the facts brought the case within rule 5 
 of section 18 of The Sale of Goods Act, 
 1896, and that there had been a contract 
 for the sale of unascertained or future 
 goods by. description, and a sufficient 
 appropriation afterwards made by the 
 -vendor of goods of that description and 
 in a deliverable shape with the assent' of 
 the buyer to pass the property as soon as"* 
 delivered at the station grounds, and 
 tliat such was the result notwithstanding 
 the value exceeded $50, as section 4 of 
 the Act' only provides that such a contract 
 shall not be enforceable by action and 
 replaces section 17 of the Statute of 
 P^auds. 
 
 ^(2) That acceptance of the wood by 
 defendant sufficient to satisfy section 33 
 of The Sale of Goods Act, was not a con- 
 dition precedent to the passing of the 
 property. 
 
 (3) KiLLAM, J., dissenting, that the 
 facts, although showing an immediate 
 delivery by Ryan to defendant within the 
 meaning of section 2 of The Bills of Sale 
 Act, R. S. M., c. 10, did not warrant the 
 conclusion that there had been the actual 
 change of possession necessary to satisfy 
 that statute, which must be such a change 
 as "is open and reasonably sufficient to 
 afford jjubhc notice thereof, as expressly 
 provided in ther corresponding Ontario 
 Act, and therefore that the plaintiff's 
 chattel mortgage was entitled to prevail 
 over defendant's title. 
 
 Held, also, per Dubuc, J., following 
 Marthinson v. Patterson, (1892) 19 A. R. 
 188, and Martin v. Sampson, (1896) 24 
 A. R. 1, that an error in the statement of 
 the indebtedness in the affidavit of bona, 
 fides sworn to by the plaintiff and attached 
 to the chattel mortgage was not, in the 
 absence of fraud, fatal to its vaUdity. 
 Eernkart v. McCutcheon, 12 M. R. 394. 
 
 IV. PtmCHASEB WITH NoTICE OP. 
 
 1. Chattel mortgage not renewed. 
 
 Defendant held a chattel mortgage upon 
 some oxen. It was filed but after the 
 lapse of two years not refiled. Plaintiff 
 after that period bought the oxen with 
 notice that the mortgage was not paid. 
 
 Held, That as against the plaintiff 
 the mortgage was vaUd' and effectual. 
 
 King v. Kuhn, 4 M. R. 413. 
 
 Overruled. Rof v. Krecker, 8 M. R. 230. 
 
 2. Mortgagee in good faith. — Where 
 mortgage to be filed — Where goods "situate." 
 
 A second chattel mortgage made in 
 good faith, and for valuable consideration, 
 takes priority over a prior unfiled chattel 
 mortgage, even if the second mortgagee 
 has actual notice of the prior mortgage. 
 
 If a mortgage is taken for a fair con- 
 sideration, and not for a collusive purpose, 
 the grantee is a mortgagee "in good faith" 
 witlun the meaning of the statute, and 
 notice of a prior unfiled mortgage is not 
 material. 
 
 King V. Kuhn, 4 M. R. 413, overruled. 
 
 A chattel mortgage must be filed with 
 the Clerk of the County Court in the 
 Judicial Divifion in which the mortgagor 
 resides, and in which the chattels are 
 ordinarily k6pt and used by him. The 
 fact that the chattels are temporarily in 
 another Judicial Division at the time the 
 mortgage is made cannot make the filing 
 of the mortgage in that Division effectual. 
 
 H. had his. residence and domicile in 
 the Judicial Division of Manchester, 
 where he usually kept the horses in 
 question. He mortgaged these horses to 
 K. The mortgage was executed and filed 
 in another Judicial Division. The horses 
 were, in fact, for a temporary purpose in 
 the other Division when the mortgage 
 was executed. 
 
 Held, that the Division in which the 
 horses could be said to be "situated," was 
 that of their owner's residence and 
 domicile at which they were themselves 
 usually kept, and that their being, by 
 accident, and for a merely temporary 
 purpose, in another Division when the' 
 mortgage was executed, did not render it 
 proper to file it there. Roff v. Krecker, 
 8 M. U 230. 
 
 y. MiSCELLANEOtrS CaSES^ 
 
 1. After acquired goods — Purchase, 
 of business and property subject to liabilities 
 
 I- 
 
137 
 
 CHATTEL- MORTGAGE. 
 
 138 
 
 o/ vendor — Estoppel in pais — Description 
 of goods covered by chattel mortgage. 
 
 The plaintiff Company in May, 1907, 
 in pursuance of a previous agreement 
 purchased the business, plant and stock 
 m trade of Lyons Btob.\ subject to their 
 debts and liabiUties. One of these was 
 a loan of $4,000 from the defendants 
 secured by a chattel mortgage of all the 
 plant and stock in trade -of Lyone Bros. 
 This chattel mortgage contained a pro- 
 vision that it should cover all after- 
 acquired goods and chattels brought upon 
 the premises owned or occupied by the 
 plaintiff Company or used in connection 
 with their business during the currency 
 of the mortgage. 
 
 The plaintffi Company had been in- 
 corporated prior to the date of the chattel 
 mortgage and Lyone Bros, were the 
 , principal promoters and became its prpsi- 
 dent and vice-president respectively, 
 being in fact the oontroUing share- 
 holders. $2104.64 of the money lent by 
 the defendants to Lyone Bros, was 
 handed over to the plaintiff Company ajjd 
 by it applied towards payment of the 
 debts of Lyone Bros. The plaintiff 
 Company paid an instalment of the in- 
 terest due to defendants on the$4,000 loan. 
 
 Held, (1) That the provision in the 
 chattel mortgage as to the after-acquired 
 goods was as binding upon the plaintiff 
 Company as purchasers of the mortgaged 
 property with notice of it as it would be 
 upon the executors or administrators of 
 the mortgagors, and that defendants had 
 a good valid lien and charge upon all 
 after-acquired goods brought upon the 
 premises in question by the plaintiff 
 Company. 
 
 Mitchell V. Winslow, 2 Story, 630, 
 followed. 
 
 (2) That the plaintiff Company was 
 under the circumstances estopped from 
 disputing such lien and charge: Pickard 
 V, Sears, (1837) 6 A. & E. 469; Freeman v. 
 Cooke, (1848) 18 L. J. Ex. 119, and 
 defendants were entitled to show in evi- 
 dence the facts constituting such estoppel 
 although it had not been pleaded, as an 
 estoppel in pais need not be pleaded to 
 make it obhgatory: Freeman v. Cooke, 
 supra. 
 
 (3) The mortgage was not void as to 
 the after-acquired goods because of the 
 generality and vagueness of the descrip- 
 tion. 
 
 Lazarus v. Andrade, (1880) 5 C. P. D. 
 318, followed. Imperial Brewers v. Gelin, 
 18 M. R. 283. 
 
 2. Consideration — Debt represented by 
 notes not held by 'mortgagee. 
 
 A. executed a chattel mortgage to F., 
 the consideration being stated as $912.20. 
 It appeared that of this amount $612.20 
 was made up of notes given by A. to F., 
 but then under discount in the Merchants 
 Bank, and not due, and the sum of $300 
 advanced in cash. The notes were subse- 
 quently taken up by F., and he produced 
 them at the trial. The usual mortgagee's 
 affidavit was indorsed upon the mortgage, 
 stating that the mortgagor was justly and 
 truly indebted to the mortgagee in the 
 amount mentioned in the mortgage. 
 
 Heldj by the FuU Court (Taylob, J. 
 dissentmg), affirming the decision of 
 -Wallbridge, C. J., that the mortgage was 
 vaUd. Fish v. Higgins, 2 M. R. 65. 
 
 3. Good in Fart and bad in Part — 
 
 Signature to jurat — Future advances — ■ 
 Possession — Mortgages not within Act — • 
 Landlord and tenant — Distress as against 
 
 The plaintiffs claimed certain horses 
 under a chattel mortgage which was ex- 
 pressed to be void upon (1) repayment of 
 $608.60, already advanced, (2) repayment 
 of further sums to be advanced for the 
 purpose of certain farming operations, (3) 
 "and if the mortgagors do cultivate all- 
 the .broken land upon all the said sections 
 during the present season, and reap and 
 thresh all the grain produced therefrom 
 in a proper and workmanhke manner and 
 after the course of good husbandry, and 
 do deUver for the benefit of the mortgagees 
 at V, not later than the 31st day of March 
 next, one half of aU the grain arising from 
 said sections 23 and 25; and if the mort- 
 gagors shall fall plough the said portions 
 of all the said sections in a proper manner 
 during the present season." No time was 
 fixed for repayment. The mortgage was 
 executed on the 12th May, 1883, and not 
 filed until the 19th, of the same month. 
 The signature of the justice of the peace 
 before^ whom affidavit of execution was 
 sworn was placed over the jurat. 
 
 Held, 1. That the mortgage, although 
 void as to the $608.60 because of the 
 delay in registration, might nevertheless 
 be good as toits other provisions. 
 
 2. That the position of the signature of 
 the justice of the peace did not vitiate 
 the mortgage. 
 
 3. As to the future advances the mort- 
 gage would be invaUd under the Act 
 because the time of repayment was not 
 stated-to be within two years. 
 
139 
 
 CHATTEL MORTGAGE. 
 
 140 
 
 4. Possession taken by the mortgagees 
 with knowledge of an execution ia the 
 sheriff's hands will not uphold an other- 
 wise invalid chattel mortgage. 
 
 5. The mortgage, so far as it related to . 
 the delivery of 'one half of the crop and 
 the fall ploughing, was not within the 
 statute at aU and was therefore valid 
 without registration. 
 
 A lease provided as part of the rent 
 that the lessors should fall plough the 
 land. For default, the landlords on the 
 1st of December, distrained certain horses. 
 A sheriff under an execution against the 
 tenants seized the horses. In an action 
 against the sheriff by the landlords, 
 
 Hdd, that proof of their possession 
 under the lease was not sufficient. Evi- 
 dence should have been given that the 
 period for fall ploughing had expired. 
 Mowat V. Clement, 3 M. R. 585. 
 
 4. Lien note — Assignment for creditors' 
 
 The owner of manufactured articles, 
 which were in his possession free from ai}y 
 lien for the unpaid portion of the pur- 
 chase money, was induced to sign a lien 
 note in favor of the defendant, the man- 
 ufacturer, containing a description of the 
 goods and statement that the property in 
 Siem was to remain in the defendant until 
 paid for in full and that on default the 
 defendant might 'enter and retake them. 
 . HM, in the absence of evidence to 
 
 grove that defendant had obtained the 
 en note by fraud or misrepresentation, 
 that it might be treated as a chattel 
 mortgage on the articles for the debt 
 secured by it as against the person who 
 had signed it. 
 
 The defendant had not put on the 
 articles his name or any other distinguish- 
 ing name so as to comply with section 2 
 of The Lien Notes Act, R. S. M., c, 87. 
 
 Held, notwithstanding, that the lien 
 note was valid as against the maker of it, 
 as the provisions of that section are only 
 for the protection of bona fide purchasers 
 or mortgagees without notice of the claim 
 of the lien holder. 
 
 The lien note was not registered under 
 The Bills of Sale and Chattel Mortgage 
 Act, 63 & 64 Vic, c. 31, and the maker 
 of it, before matiu-ity of the debt, became 
 insolvent and made an assignment to the 
 plaintiff under The Assignments Act, R. 
 S. M., c. 7, for the benefit of his creditors. 
 
 Held, that, for want of such registra- 
 tion, the lien note, being an instrument 
 intended to operate as a mortgage of 
 
 goods which remained in the debtor's 
 possession imtil the assignment, was null 
 and void as against his creditors, including 
 the plaintiff , as his assignee by virtue of 
 paragraph (a) of section 2 of The Bilb of 
 Sale and Chattel Mortgage Abt. 
 
 It was doubtful upon the wording of 
 the assignment whether the debtor had 
 reserved any exemptions to which he 
 would be entitled imder sub-section (/) of 
 section 43 of the Executions Act, R. S. 
 M., c. 53, 'viz.: "The tools.* * * * and 
 necessaries used by the judgment debtor 
 in the practice of his trade, profession or 
 occupatioh, to the value of five hundred 
 dollars," within which description the 
 articles came, and it was not shown that 
 the debtor had ever claimed any of them 
 from the assignee or asked to have any 
 of them set aside as exempt, or that he 
 had not got out of other articles of his 
 estate all his exemptions under that sub- 
 section; and the articles were not shown 
 to have depreciated in value. 
 
 Held, that defendant could not claim 
 the benefit of any. such exemption even 
 if it was reserved by the debtor, in the 
 assignment. Cox v. Schack, 14 M. R. 174. 
 
 6. Mistake in mortgagor's name— 
 
 Addition of deponent An affidavit. 
 
 Abram V,. Becksted executed a chattel 
 mortgage in which his name appeared as 
 Abram B. Becksted. He signed his name 
 correctly. 
 
 Held, that ■ the mortgage was void as 
 against creditors. 
 
 In an affidavit of bona fides of a chattel 
 mortgage the addition of the deponent 
 was stated to be a trader. He was not 
 in fact a trader. 
 
 Held, not to vitiate the mortgage. 
 Van Whart v. Smith, 4 M. R. 421. 
 
 6. Mortgagor selling the goods — 
 
 Pleading. 
 
 The plaintiffs gave to one of the de- 
 fendants a chattel mortgage upon his 
 stock in trade. It contained a covenant 
 that in case the mortgagor should "attempt 
 to sell or dispose of, or in any way Tpsert 
 with the possession of the goods or any 
 of them or to remove the same or any 
 part thereof out of the store and premises 
 * * * without the cpnsent of the mort- 
 gagee * * '^ to such sale, removal or 
 disposal first had and obtained in writing, 
 it shall be lawful for the mortgagee to 
 take possession," &c. The plaintma re- 
 mained in .possession and continued to 
 make sales in the usual course of business. 
 
141 
 
 CHATTELS REAL. 
 
 142 
 
 Shortly afterwards the defendants ob- 
 tained judgment against the plaintiffs and 
 under fi. fa. goods caused the same goods 
 to be seized and sold. The fi. fa. was 
 afterwards set aside as having b^en issued 
 in breach of an agreement. 
 
 In an action in trespass and trover the 
 defendants pleaded .not guilty, and not 
 
 Held, 1. That, under the plea of not 
 possessed the defendants might set up 
 the chattel mortgage and the breach of 
 the covenant not to seU. 
 
 2. That the covenant not to sell was 
 absolute and not subject to the imphed 
 exception, "save in the usual course of 
 business.'" 
 
 3. Trespass may be justified upon any 
 vahd ground, and that, although some 
 invalid reason may have been given at 
 the time of the trespass. 
 
 Qiusre, If a mortgagee rightfully seize, 
 but unlawfully sell, the mortgaged goods 
 is he a trespasser ab initio? 
 
 A chattel mortgage provided that upon 
 certain contingencies the mortgagee might 
 seize the goods", and upon, from and after 
 the seizure the mortgagee might sell, &c., 
 and from and out of the proceeds pay and 
 reimburse himself, "all such sums and 
 suiD. of money as may then be due by 
 virtue of these presents." 
 
 Hdd, that, the mortgagee having' 
 rightfully seized the goods, might lawfully 
 sell them, although the mortgage money 
 might not have been payable. Although 
 not payable it was nevertheless "due." 
 
 Dedmck v. Askdown, 4 M. R. 139. In 
 appeal 15 S. C. R. 227. 
 
 See Pbatidulbnt Prefebencb, I, 1; III, 
 
 5; VI, 2, 4, 5. 
 — Sheriff, 3, 6. 
 
 CHATTBLS REAL. 
 
 See Real Property Act, V. 8. 
 
 CHEQUES. 
 
 Indorser of Cheque diverted from 
 its original purpose. 
 
 H., being indebted to the defendant in 
 the sum of $500, procured him to indorse 
 his (H's) cheque for $1,000, upon a bank 
 at N., out of the proceeds of which the 
 debt was to be paid. H. and the de- 
 
 fendant went to a bank at W. to get the 
 cash for the cheque. H., alone, went into 
 the manager's room and, on his return, 
 informed defendant that the cheque had 
 been left with the manager, who would 
 send it for collection tq N. H. in fact 
 retained the cheque and afterwards 
 transferred it to plamtiff for value. 
 
 Held, that defendant was liable upon 
 the cheque. Arnold v. Caldwell, 1 M. R. 
 81. 
 
 See Banks and Banking, I, 4, 9. 
 — ■ Bills and Notes, VIII, 6, 
 — Pleading, XI, 11. 
 
 CHOSE IN ACTION. 
 
 1. Assignment of book debts with- 
 out writing — Limitation of actions — 
 Appropriation of payments — Weights and 
 Measures Act, R. S. C, c. 104 — Burden of 
 proof of illegality — Objections not raised at 
 trial — Voluntary payment fw goods supplied 
 in violation of the Weights and Measures 
 Act — ■Recovering back same — Burden of 
 proof that purchaser loas not aware of the 
 ill •■ 
 
 1. To constitute an equitable assign- 
 ment of a chose in action neither writing 
 nor any particular form of words is re- 
 quired, but any words or acts from which 
 it is to be inferred that there was an 
 intention to pass the beneficial interest 
 are sufficient. 
 
 2. When a defendant seeks to avoid 
 payment of an account for Ume furnished 
 to him on the ground that it was sold to 
 him by measure and that the measure 
 used was not stamped as required by The 
 Weights and Measures Act, R. S. C, c. 
 104, the onus is on him to prove that the 
 measure was not properly stamped. 
 
 Hanbury v. Chambers, (1894) 10 M. R. 
 167, followed. 
 
 3. Section 21 of that Act does not 
 render it illegal for parties to agree upon 
 a sale by some authorized measure, and 
 then that the quantities should be ascer- 
 tained by authorized weights; and, when 
 lime is ordered by the bushel and supplied 
 by weight, the sale would not be illegal 
 or void if the purchaser knew that such 
 was being done, and the onus is on him 
 to prove that he did not know of it. 
 
 After the passing of the Act, 61. Vic, 
 c. 30, s. 2 (D. 1898), a bushel of Ume was 
 to be determined by weighing, unless a 
 
143 
 
 CHOSE IN ACTION. 
 
 144 
 
 bushel by measure should have been 
 specially agreed upon. 
 
 Hdd, that, as to certain lime furnished 
 by measure after the parsing of the Act 
 of 189'8, the plaintiff was entitled to 
 recover for it on the groufid that the 
 defendant had not raised at the trial the 
 objection that there had been no agree- 
 ment for a determination by measure. 
 
 The defendant had voluntarily made 
 certain pajrcnents on account of certain 
 other sales of lime which were admitted 
 to have been illegal, but he gave no 
 evidence to show that, when he made the 
 payments, he was ignorant of the illegaUty. 
 
 Held, that he could not recover bstck 
 the amount of such payments. Hughes 
 V. Chambers, 14 M. R. 163. 
 
 2. Assignment ot— Money received by^ 
 _, .defendant for the use of plaintiff. 
 
 A directed B, his\ debtor, in writing to 
 pay the money to C, and directed C to 
 pay the money when collected to his 
 creditor D. C undertook to do so and 
 received the money from B, and informed 
 D that he had^ collected a sum of money 
 for him, although the sum he mentioned 
 was not the fuU amount which he had 
 actually collected. 
 
 Held, that there was a complete assign- 
 ment in equity by A to D of the money 
 actually collected from B by C, and that 
 Id could recover the full amount in an 
 action directly against C. 
 
 Morrell v. Wootten, (1852) 16 Beav. 
 197, and Lilly v. Hayes, (1836) 5 A. & 
 E. 548, followed; 
 
 Williams v. Everett, (1811) 14 East, 
 682, -distinguished. Waterloo Manufac- _ 
 turing Co. v. Kirk, 21 M. R. 457. 
 
 3. Assignment of — -Notice to debtors^ 
 Bight of assignee to moneys collected by 
 assignor and handed over to another creditor 
 —Estoppel by conduct — Duty of assignee to 
 notify other creditors of the assignment. 
 
 The plaintiffs had an assignment from 
 one Thomas of all his book debts, notes 
 and other choses in action as security for 
 their claim, but did not notify the debtors 
 or any of the other creditors of Thomas 
 although they knew there were such 
 creditors. They allowed Thomas to col- 
 lect the accounts and pay over the pro- 
 ceeds to them. The defendants, not 
 Imowing of the assignment, and having 
 a large claim against Thomas, induced 
 him to allow ^them to receive the proceeds 
 of the collections of sopie of the debts 
 and a number of the promissory notes 
 
 covered by the assignment, and the plaint- 
 iffs brought this action to recover these 
 moneys and notes including some received 
 after notice of the plaintiffs' claim. 
 
 Held,' that the defendants were equit- 
 able assignees of all such moneys and 
 notes as they had reduced^ into possession 
 before receiving notice of the assignment 
 and were entitled to retain them, but ' 
 that the plaintiffs were entitled to judg- 
 ment for all collections of book debts 
 made by the defendants after receipt of 
 such notice. 
 
 Held, also, that there was no estoppel 
 against the plaintiffs by reason of their 
 failure to notify the defendants of their 
 assignment. 
 
 Troughton v. Gitley, (1766) Amb., 630, 
 and subsequent cases in which it was 
 followed, distinguished. Bank of British 
 North America v. Wood, 19 M. R. 633. 
 
 4. Assignment of — Prior equitahle^ 
 claim — Estoppel — Costs. 
 
 The plaintiffs authorized the defendant 
 McLaws to purchase in his own name, 
 but as trustee for them, certain shares in 
 a company from the defendant Walker, 
 the price being payable by instalments as 
 provided for in an agreement between 
 McLaws and Walker. They furnished 
 the money to McLaws to make the pay- 
 ments, and did not disclose to Walker 
 their interest in the shares. 
 
 Afterwards McLaws procured from the 
 defendant Smith a loan of $2830, giving 
 as security an assignment of all his 
 interest in the agreement with Walker 
 respecting the said shares and handing 
 over the original agreement to Walker. 
 Smith had at that time no knowledge of 
 the plaintiffs' interest in the shares. 
 
 Held, that the plaintiffs were estopped, 
 from setting up their prior equitable title 
 as against Smith and could only get the 
 shares from Walker on payment to Smith 
 of the amount he had lent to McLaws on 
 the security referred to with interest. 
 
 Quebec Bank v. Taggart, (1896) 27 O. R. 
 162, and Goodwin v. Robarts, (1876) 1 
 A.C. 476, followed. 
 
 Plaintiffs had before action offered to 
 
 Eay Smith the amount of the said loan, 
 ut he demanded other sums which 
 McLaws owed him. There was no actual 
 tender by the plaintiffs, but juch a tender, 
 if made, would have been refused by 
 Smith, and on that ground the trial 
 Judge refused to give him costs as against 
 the plaintiffs. Wellband v. Walker, 20 
 M. R. 510. , 
 
145 
 
 CHURCH BUILDING— OWNERSHIP OF. 
 
 146 
 
 6. Aasigniuent -ot— Bight o/ assignee 
 to site in his own name — Assignments Act, 
 R. S. M., c. 1, 3. 3. 
 
 A person to whom debts and choses in 
 action have been assigned by an instni- 
 ment in writing may, under The Assign- 
 ments Act, R. S. M., 0. 1, s. 3, bring an 
 action thereon in his own name against 
 the debtor, although they have been 
 transferred to him only for the purpose of 
 joining a number of claims in one suit, 
 and he has no beneficial interest in them. 
 
 Wood V. McAlvine, (1877) 1 A. R. 234, 
 distinguished. Mitssen v. Great North- 
 west Cmtral By. Co. 12 M. R. 514. 
 
 See Banks and Banking, 5. 
 
 CHURCH BUILDINO— 
 OWNERSHIP OF. 
 
 See Criminal Law, X, 1. 
 
 CHURCH LANDS ACT. 
 
 1. Death of judge after hearing and 
 before judgment— Sote of church prop- 
 erty — Con. Stat. Man., c. 50 — Purchaser 
 raising obstacle to completion of title — 
 Personal order against trustees for revay- 
 ment of purchase money — lAen — Misrepre- 
 , sentation. 
 
 After witnesses had been examined and 
 the cause heard, but before judgment, the 
 judge died. The cause was ordered to be 
 set down for argument before the Full 
 'Court. 
 
 Trustees of a chm-ch made an agreement 
 for the purchase of three lots. In the 
 agreement they were described as "Trus- 
 itees of the F. C. Church, Winnipeg," but 
 there was no provision in it as to the 
 appointment of successors in the trust, 
 nor were any trusts set out. The same 
 trustees made a verbal contract for the 
 sale of an adjoining lot. AU the lots 
 were intended to be used as a site for a 
 church. . 
 
 Held, that the provisions of C. S. M., 
 c. 50, applied to the property and that 
 the trustees could not sell save in accord- 
 ance with the provisions of that Act. 
 
 After the trustees had contracted to sell 
 and after the purchaser had rescinded the 
 contract because of non-compliance with 
 the Act, the trustees applied for legislation 
 
 confirming the sale. This application was 
 opposed by the purchaser. 
 
 Held, that the purchaser was never- 
 theless entitled to insist upon the 
 objection. 
 
 After the contract and after payment 
 of part of the purchase money, the pur- 
 chaser rescinded upon the ground above 
 mentioned and also because of a misrep- 
 resentation made to her by one of the 
 trustees. The other trustees were un- 
 aware of the misrepresentation. They 
 did not receive any portion of the purchase 
 money. It was appUed in the erefction of 
 a church upon other land. 
 
 Held, that the purchaser was entitled 
 to a personal order for repayment against 
 the offending trustee, and to a lien upon 
 both properties, but not to a personal 
 order against the innocent trustees. 
 
 Weight of -evidence upon question of 
 misrepresentation discussed. Cummins v. 
 Trustees of the Congregational Church, 4 
 M. R. 374. 
 
 2. Sale of Church Lands. 
 
 On a sale of Church lands under R. S. 
 M.. c. 20, the congregation or religious 
 body must be notified, not only of the 
 fact that a sal^ has been made, but also 
 of the time at which the Court will be 
 applied to, to sanction the execution of 
 the deed. Be Methodist Church, Manitou, 
 8 M. R. 136. 
 
 CIVIL ACTION PENDING. 
 
 See SoLiciTOE, 6. 
 
 CIVIL OR CRIMINAL MATTER. 
 
 See Practice, XXVIII, 3. 
 
 CIVIL OR CRIMINAL 
 PROCEEDINGS. 
 
 See Magistrate. 
 
 — Quo Warranto, 2. 
 
 CLOSING UP STREET. 
 
 See Municipality, I, 5; V, 2. 
 
147 CLOUD UPON TITLE. 
 
 CLOUD UPON TITLE. COMMON COUNTS. 
 
 148 
 
 See Sale oi' Land fob Taxes, IX, 2. 
 
 See Pleading, XI, 4. 
 
 COLLATERAL AGREEMENT. 
 
 See Sale of Goods, VI, 3. 
 
 COMMON GAMING HOUSE. 
 
 iSee Constitutional Law, 3. 
 — Cbiminal Law, XIII, 3. 
 
 COLLATERAL SECURITY. 
 
 See Pledge. 
 
 COMMON LAW. 
 
 See Railways, XI, 2. 
 
 COLLATERAL VERBAL 
 AGREEMENT. 
 
 See Company, IV, 11. 
 ■ — Conditional Sale, 1. 
 
 — Contract, VI, 2; XV,- 3. 
 
 — Evidence, 16, 17, 18, 21, 22. 
 
 — Vendor and Purchaser, VI, 1. 
 
 COLLUSIVE SETTLEMENT 
 OF SUIT. 
 
 See Solicitor and Client, III, 1. 
 
 COLOR OF RIGHT. 
 
 See Landlord and Tenant, III, 1. 
 
 COMMISSION ON SALE OF LAND. 
 
 - See Appeal prom Coxlntt Court, V, 3. 
 
 — Contract, V, 3. 
 
 — Inteepleadbr, IX, 2. 
 
 — Princieal and Agent, II. 
 
 COMMON CARRIER. 
 
 See Bailment, 2. 
 
 — Interpleader, I, 1, 2. 
 — ■ NsGLiaENCB, VI, 4, 
 
 — • Pleading, XI, 6, 8. 
 
 — Railways, II, 1, 2, 3; III. 
 
 COMPANY. 
 
 ^. - 1. Liability in Respect of Shares. 
 II. Powers op Manager. 
 
 III. Seal op Company. 
 
 IV. Miscellaneous Gases. 
 
 I. Liability in Respect op Shares. 
 
 1. AgreeQient to take shares — 
 
 Withdrawal before notice^ of allotment — . 
 Notice of withdrawal given to agent of 
 company. 
 
 1. An agreement to take shares in a 
 company, although aooonipanied by the 
 giving of a promissory note in part pay- 
 ment, is nothing more than an appUoation 
 for the shares and is not binding on the 
 applicant until acceptance by the com- 
 pany and notice thereof given to him; 
 and, if the apphcant ^ves notice of with- 
 drawal of his appUcation before iiotice of 
 acceptance reaches him, he will be re- 
 leased from any obUgation under his 
 agreement or under the promissory note 
 in the hands of the company or in the 
 hands of any person having no better 
 right to it than the company would have 
 had. 
 
 2., Notice of such withdrawal, if given 
 to the general agent of the company who 
 procured the subscriptions, will be suffi- 
 cient notice to the company. Kruger v. 
 Harwood, 16 M. R. 433. 
 
 2. Agreement to take shares— -Lio- 
 W,i1/y of shareholders for amount of 
 unpaid stock. 
 
 The defendant signed the following 
 memorandum, which was written upon a 
 page of a book, kept as a minute book of 
 the meetings of various persons who in- 
 tended forming a company: 
 
149 
 
 COMPANY. 
 
 150 
 
 "We, the undersigned, do hereby agree 
 to pay for the amount of stock after our 
 respective names, and we further agree 
 and bind ourselves to abide by the by-laws, 
 rules, and regulations of the association." 
 
 The defendant did not sign the petition 
 for letters patent, nor any memorandum 
 of association, but paid $10 on account of 
 his subscription for a share. 
 
 In an action by the plaintiff, a creditor 
 of the company, for unpaid calls, 
 
 HeW,\that the defendant was not liable. 
 Allan V. Om-don, 1 M. R. 132. 
 
 3. Agreemenit with company after 
 subscription for shares — Payment other- 
 wise than in cash — Manitoba Joint Stock 
 Companies Act, R. S. M. 1902, c. 30, ss. 
 46, 51, 61 — Set-off of debts in winding up. 
 
 1. After a person has subscribed in the 
 ordinary manner for shares in a company 
 incorporated by letters patent under The 
 Manitoba Joint Stock Companies Act, 
 R. S. M. 1902, c. 30, and they have been 
 allotted to him, it is not competent for 
 the Company to release him from his 
 liability to pay for the shares iiLcash by 
 entering into an agreement, even under 
 seal, to issue to him fuUy paid and non- 
 assessable shares in consideration of his 
 covenants to do something in the future. 
 
 When such an agreement included, with 
 such covenants, a transfer of assets of 
 doubtful value, but the circumstances 
 surrounding the agreement were such as 
 to make it a fraud upon the company, it 
 was held void and that th6 subscribers 
 for thejhares should be settled upon the 
 list of oontributories in the winding-up of 
 the company for the fuU amount of their 
 
 gf)gT*PS 
 
 Elkington's case, (1867) L. R. 2 Ch. 
 511, and Pellatt's case. (1867) L. R. 2 Ch. 
 527, followed. \ 
 
 , Chapman's Case. [1895] 1 Ch. 771, Hood 
 V. Eden, (1905) 36 S. C. R. 476; Re Hess, 
 (1894) 23 S. C. R. 644, and Re Wragg, 
 [1897] 1 Ch. 796, distinguished. 
 
 3. The validity of such an agreement 
 may be inquired into on the appUoation 
 before the Judge to settle the list. It .is 
 not necessary to .bring an independent 
 suit to set it aside. 
 
 Be Eddystone Marine Insurance Co., 
 [1893] ,3 Ch. 9, and Re Wragg, supra, 
 followed. 
 
 4. Subscribers for shares in the com- 
 pany axe not entitled in the winding-up 
 to set-off, against their Uability to pay up 
 the shares, claims for goods suppUed to the 
 company under such an agreement. 
 
 In re London Celluloid Co., (1888) 39 
 Ch. D. 190; Maritime Bank v. Troop, 
 (1888) 16 S. C. R. 456; McNeill's Case, 
 (1905) 10 O. L. R. 219, and In re Para- 
 guassu Steam Tramroad Co., Blaclc & Co's. 
 Case, (1872) L. R. 8 Ch. 254, followed. 
 
 Jones & Moore Electric Company, Re and 
 Jones & Moore's Case, 18 M^R. 549. 
 
 Appealed to Supreme Court, but settled 
 prior to argument. 
 
 4. Allotment of promotion stbck — 
 
 Declaration of dividend impairing capital — 
 Manitoba Joint Stock Companies Act, B. 
 S. M. 1902, c. 30, s. 32. 
 
 1. An allotment of $3000 promotion 
 stock in a company incorporated under 
 The Manitoba Joint Stock Companies Act, 
 R. S. M. 1902, c. 30, as fully paid stock, 
 made after incorporation in favor of one 
 of the incorporators, whose original sub- 
 scription was for $4000, for the alleged 
 consideration of a transfer of good mil, 
 will not, in a proceeding under the Do- 
 minion Winding Up Act; be any defence 
 against an application by the liquidator 
 to place such subscriber on the list of 
 contributories for the fuU amount not 
 actually paid in cash. 
 
 In re Jones & Moore Electric Co., (1909) 
 18 M. R. 549, foUowed. 
 
 2. The declaration of ^ dividend when 
 the company is insolvent, contrary to 
 section 32 of the Act, and the application 
 of such dividend in payment of shares in 
 full cannot be allowed to stand, and, in 
 the winding, up, the shareholders ar? 
 entitled to no credit in respect thereof, 
 Re Northern Constructions, limited, 19 
 M. R. 528. 
 
 6. For calls on stock— Allotm,ent— 
 Manitoba Joint Stock Companies Act, R. 
 S: M. 1902, c. 30, ss. 27, 53— Certificate of 
 indebtedness under section 53 of the Act as 
 evidences-Validity of acts of bocerd of 
 directors when some of their number dis- 
 qualified — Election of directors without 
 ballotting. 
 
 1. Subscribers for shares in the stock 
 of a company who have already paid one 
 call cannot be heard to deny the allotment 
 of their shares. 
 
 2. The production of a certificate of 
 indebtedness for unpaid calls on stock in 
 a company incorporated by letters patent 
 under The Manitoba 'Joint Stock Com- 
 panies Act, R. S. M. 1902, c. 30, made in 
 accordance with section 53 of the Act, is 
 prima facie evidence of notice of the call 
 
151 
 
 COMPANY. 
 
 152 
 
 as well as of the other matters referred 
 to in that section. 
 
 3. The presence on the board of direc- 
 tors of such a company of three who were 
 not qualified, by reason of being in arrears 
 in respect of unpaid calls at the time of 
 their election, is not sufficient to invali- 
 date the acts of the board if done by a 
 legal quorum of properly qualified direc- 
 tors. 
 
 , Scadding -v. Lorant, (1851) 3 H.L.C. 
 443; Sank o/ lAmrpool v. Bigelow, (1878) 
 12 N.S.R. 236, and Munster v. Cammel 
 Co., (1882)'21 Ch.. D. 183, followed., 
 
 4. Although the Act requires that the 
 election of directors shall be by ballot, an 
 election by unanimous vote without 
 ballotting will be vaUd if no more than 
 the necessary number are nominated. 
 Morden Woolen Mills Co. v. Heckels, 17 
 M. R. 557. 
 
 II. PowEBs OP Manager. 
 
 1. Authority to pled^re goods — Goods 
 with warehouseman — Passing of property — 
 Registration of bill of sale. 
 
 When goods are held by a warehouse- 
 man, an assignment or order for delivery 
 does not pass the property until the 
 warehouseman has assented to hold the 
 goods as the agent of the purchaser. 
 
 Registration of a bill of sale is un- 
 necessary when the goods are in the hands 
 of a warehouseman who becomes the 
 agent ^of the transferee and agrees to 
 hold the goods for him. 
 
 Upon AppbaIi — 
 
 Held, 1. That the authority of^ a 
 manager of a company, carrjdng on the 
 business of the manufacture and sale of 
 farm utensils, to pledge the goods of the 
 company, for a present debt and future 
 advances, will not be assumed, but must 
 be proved. 
 
 2. And that a statute, providing that 
 every contract, &c., made, &c., oti behalf 
 of the company by any officer, &c., of the 
 company, in general accordance with his 
 powers as such officer under the by-laws 
 of the company, shall be binding upon 
 the company, does not obviate the 
 ifecessity of proof that the contract is 
 one in general accordance with the powers 
 of the officer. ■ Jones v. Henderson, 3 M. 
 R. 433. 
 
 2. Authority to sell land — Powers of 
 ■ general manager — Contract not under seal-— 
 Commencing business contrary to require- 
 ment of statute — First directors — Manitoba 
 
 Joint Stock Companies Act, B.S.M. 1902, 
 c, 30, ss. 22, 26, 31, 64. 
 
 1. A company incorporated by letters 
 patent under the Manitoba Joint Stock 
 Companies Act, R.S.M. 1902, c. 30, for 
 the purpose of buying and dealing in land, 
 wiU, by the combined effect of sections 
 26, 31 and 64 of the Act, be bound by a 
 contract for the sale of land signed on its 
 behalf by one of the persons named in the 
 letters patent as the provisional directors 
 of the company representing himself, with 
 the acquiescence and knowledge of the 
 other directors, to be the general manager, 
 although no proceedings, subsequent to 
 the issue of the letters patent, had been 
 taken to organize the company, no by-laws 
 had been adopted and no directors elected, 
 if the purchaser deals with the company in 
 ignorance of the absence of- these form- 
 ahties. 
 
 Allen V. Ontario & Rainy River Ry. Co., 
 (1899) 29 O.R. 510, followed. 
 
 2. The Act speaks only of first directors 
 and contains nothing to indicate that 
 their authority is only temporary of 
 limited, and, therefore, though called pro- 
 visional in the letters patent, the persons 
 named were, under section 26 of the Act, 
 directors of the company with aU the 
 powers and duties set out in sections 31, 
 64 and other sections of the Act. 
 
 Johnstone v. Wade, (1908) 11 O.W.R. 
 602, foUowed. 
 
 MonarchLifev.Brophy, [1907] 14 O.L.R. 
 1, distinguished. 
 
 3. Under section 64 of the Act, the 
 contract need not be under seal, nor was 
 it necessary to prove that it was made in 
 pursuance of any by-law or special reso- 
 lution or order. 
 
 Thompson v. Brantford Electric By. Co., 
 (1898) 25 A.R. 340, and Mahoney v. East 
 Holyford, (1875) L.R. 7 H.L. 809, followed. 
 
 4. It makes no difference in such a case 
 that the company had commenced busi- 
 ness in violation of section 22 of the Act, 
 ten per cent, of the authorized capital not 
 havmg been subscribed, nor ten per cent, 
 of the subscribed capital paid up, for that 
 provision should be held to be directory 
 and not mandatory, as far as concerns 
 deaMngs with strangers ignorant that it 
 had not been compUed with. 
 
 Maxwell on Statutes, 556; Masten on 
 Company Law, 564; Dictum of Lord 
 Hatherley in Mahoney v. East Holyford, 
 supra, at p. 894, followed. 
 
 Pierce v. Jersey Waterworks Co., (1870) 
 L.R. 5 Ex. 209, distinguished. MiMawan v. 
 German Canadian Land Co., 19 M. R. 667. 
 
153 
 
 COMPANY. 
 
 154 
 
 III. Seal of Company. 
 
 1. Employment of chief engineer — 
 
 Necessity for seal. 
 
 To a declaration alleging a contract of 
 hiring by the plaintiff with the defendant 
 Company as their chief engineer, the de- 
 fendants pleaded that they did not make 
 any contract with the i)laintiff under their 
 corporate seal, as required by law. 
 
 Held, on demiurer, that the plea was 
 badj for, as the employment of a chief 
 engmeer was a matter of necessity, the 
 contract might lawfully be made without 
 seal. Murdoch v. Manitoba S. W. Col. 
 I Co., T. W., 334. 
 
 2. Employment of pro-visional en- 
 gineer — Corporation — Contract under seal 
 — Hire of servant or employee. ' 
 
 Plaintiff, a civil engineer, was engaged, 
 by defendants as provisional engineer at 
 $300 per month. The employment com— 
 raenced on 9th of Augus , 1882, he was 
 dismissed on 16th of December, 1883 and 
 paid up to that date. He sued for wrongful 
 dismissal and claimed wages up to 9th of 
 February, the earUest period at which his 
 service could have been terminated by a 
 month's notice. 
 
 Held', that, as the plaintiff was an 
 important oflScial, his engagement was not 
 binding upon the corporation, not being 
 under its corporate seal. Armstrong v. 
 Portage, Westboume and N. W. By. Co., 
 1 M. R. 344. 
 
 See tHte next case. 
 
 3. Employment of chief engineer— 
 
 Contract — Usual expenses, what included 
 in. 
 
 "The plaintiff was'Snga^ged by the presi- 
 dent of the defendant railway company to 
 act as chief engineer of the railway at a 
 salary of $250 per month besides his 
 "usual expenses," and served in that 
 capacity for about nineteen months. 
 
 Held, that he was entitled to recover 
 at the fate agreed on for his services, 
 although there was no contract under seal. 
 
 Bemardin v. North Dufferin, (1891) 19 
 S. C. R. 581, followed. 
 
 Held, also, that the plaintiff's board 
 while at his headquarters was not in- 
 cluded in the "usual expenses" which he 
 was to receive jn addition to his salary, 
 but sums paid out for board while away 
 from his usual quarters on the company's 
 work would be so included. Forrest v. 
 Great Northwest Central By. Co., 12 M. R. 
 472. 
 
 4. Pleading — "Permanent" official. 
 
 By resolution the defendants appointed 
 the plaintiff their "permanent land com- 
 missioner," at a certain salary. The 
 secretary of the company wrote a letter 
 to the plaintiff informing him of the 
 appointment and at his request affixed the 
 corporate seal to the letter. 
 
 The plaintiff sued in assumpsit for 
 wrongful dismissal. 
 
 Held, that by his pleading he was 
 estopped from setting up the hiring as 
 under seal. 
 
 Qucere, As to the meaning of the 
 word "permanent." 
 
 Qv,CBre, Whether as a matter of law 
 the hiring was under seaj. 
 
 Upon the evidence, — 
 
 Held, that the origiaal a^rejement had 
 been superceded and tenmnated by a 
 subsequent agreement. Belch v. Mani- 
 toba & North-Western By. Co., 4 M. R. 
 198. 
 
 IV. Miscellaneous Cases. 
 
 1. Agreenient prior to charter — ■ 
 
 Batification. 
 
 Prior to the granting of the defendant's 
 charter, S., who afterwards became its 
 manager, made a verbal agreement with 
 the plaintiff with reference- to the land of 
 the plaintiff. Subsequently and after a 
 charter a written agreement was pre- 
 pared. The parties to it were the plaintiff 
 of the one part and B. and D. (who were 
 shareholders in the company) of- the 
 other part. It was signed, "Dominion 
 City Brick Company, Aubrey Smith, 
 manager", but the company's name 
 appeared in no other part of the docu- 
 ment. Held, that the company was not 
 bound by the verbal agreement, because 
 made previous to its charter, and therefore 
 incapable of ratification. 2. That the 
 company was no party to, and was not 
 liable under, the written agreement. 
 Waddell y. Dominion City Brick Company, 
 5 M. R. 119. 
 
 2. Assignment of chose in action — 
 
 Trading corporation acting as trustee — 
 Assignments Act, B. S. Mf c. 7, s. 3 — ■ 
 Objection by debtor to assignment. 
 
 A trading corporation created by 
 Letters Patent under The Manitoba 
 Joint Stock Companies Act has power to 
 take an -assignment of a chose in action 
 and hold and collect it by suit for the 
 benefit of the assignor: In re Bockwood, 
 &c.. Agricultural Society, (1899) 12 M.R. 
 
155 
 
 COMRANY 
 
 156 
 
 655; The Queen v. -Reed, (1880) 5 Q.B.D. 
 483, and Ashhury Railway Carriage Co. v. 
 Rich/B; (1875) L.R. 7 H.L. 653, dis- 
 tinguished. 
 
 A debtor, who has no interest in an 
 assignment of the claim against him and 
 is in no way prejudiced by it, cannot 
 raise any objection to the competency of 
 the assignee to take the assignment and 
 to sue upon the claim: Walker v. Bradford 
 Old Bank, (1884) 12 Q.B.D. 511, followed. 
 Stobart v. Forbes, 13 M. R. 184. 
 
 ' 3. Costs of procuring Act of incor- 
 poration — Liability of company for — 
 Appropriation of payments — Mar- 
 shalling of assets. 
 
 1. A company incorporated by a special 
 Act is not liable for the expenses of pro- 
 curing its incorporation in the absence of 
 a provision in the Act that it shall be so 
 liable, unless after incorporation it agrees 
 to pay such expenses; and solicitors have 
 no equitable claim against a company for 
 the costs of procuring such an Act on the 
 ground that the company has taken the 
 benefit of their services. 
 
 In re English and Colonial Produce Co., 
 [1906] 2'Gh. 4S5, followe'd. 
 
 2. Where, however, the company has 
 made a payment on account to its sphci- 
 tors, they may be permitted to appropriate 
 such pajnnent to their claim for pre- 
 incorporation costs, as was done in the 
 above cited case. 
 
 The Company, which was in process of 
 winding up, was a mutual hail insurance 
 company and the Act permitted the 
 directors to make assessments annually to 
 cover only losses by hail during the crop 
 season and the expenses for the year, and 
 no assessment could be made to pay any 
 part of the solicitors' bill, part of which 
 was for work done for the Company after 
 incorporation. There was, however, a 
 reserve fund accumulated under the Act 
 which might "be applied by the directors 
 to pay off such UabiUties of the Company 
 as may not be provided for out of the 
 ordinary receipts for the same or any 
 succeeding year." ^ 
 
 Held, that those creditors for the pay- 
 ment of whose- claims an assessment could 
 be made should be compelled, in the first 
 place, to have recourse to that method of 
 payment so as to leave the reserve fund 
 available as far as possible to pay such 
 portion of the solicitors' bill as the Com- 
 pany was hable for, that the assessment 
 already made should stand, the proceeds 
 <o be applied first ,in payment of the 
 
 ■ claims against the Company other than 
 the costs in question, and that any re- 
 maining debts, including the amount 
 found due on taxation to the solicitors for 
 services subsequent to the incorporation, 
 should rank pro rata on the reserve fund, 
 after payment of the receiver's costs. 
 Crown Mutual Hail Ins. Co., Be, 18 M. 
 R. 51. 
 
 4, Dissolution of company — Action 
 against bankrupt — Practice — Procedure — 
 Garnishee order — Pleading. 
 
 A company claiming that it is abso- 
 lutely defunct cannot be heard to make 
 an application to the Court, and its 
 receiver has no locus standi to be heard 
 on that ground. 
 
 Proceedings in bankruptcy and ev^ a 
 discharge under the insolvency laws" of 
 another country are not necessarily a bar 
 to an action against the insolvent, and. if 
 they are a bar they should be pleaded. 
 They cannot be set up on an application 
 to stay proceedings in the action. 
 
 Where it was alleged that the right to 
 moneys attached^in the hands of a garni- 
 shee and owing to a foreign company had 
 passed to a receiver of the company by 
 virtue of a winding-up, order made in the 
 foreign country by the Court having 
 jurisdiction there before the date of the 
 attaching order, , 
 
 Hdd, that the^ question of the vaUdity 
 of the attaching order as against the 
 receiver or other creditors shoulc^ not be 
 determined on a chamber application to 
 set the order aside, but in some more 
 formal proceeding. Brand v. Green, 12 
 M. R. 337. 
 
 6. In$ipeotion of Company by order 
 of Court — Appointment ■ of inspector to 
 investigate affairs of company — Manitoba 
 Joint Stock Companies Act, R. S: M. 1902, 
 s. 81 added by i & 5'EdwardYIl. c. 5, s. 
 1 — Objects for which appointment made — 
 Mismanagement of company^ — Winding-up 
 company. 
 
 The object of section 81, added to The 
 Manitoba Joint Stock Companies Act, 
 R. S. M. 1902, c. 30, by 4 & 5 Edward 
 VII, c. 5, providing for the appointment 
 by a Judge, if he deems it necessary, of 
 an inspector to examine and report on 
 the affairs of a joint stock company in- 
 corporated under the Act, on the appli-, 
 cation of shareholders, is simply that 
 facts and circumstances not otherwise 
 open may be disclosed to those concerned., 
 
157 
 
 COMPANY. 
 
 158 
 
 7w re The Grosvenor Hotel Co., (1897) 
 76 L. T. 337, foUowed. 
 
 A Judge, therefore, should not make 
 such an order unless' it is made to appear 
 that there is reason on substantial grounds 
 to believe that material information re- 
 garding the affairs or management of the 
 company ip being concealed or withheld 
 from shareholders whose interests entitle 
 them to the .disclosure, and it is not 
 sufficient to adduce facts merely tending 
 to show mismanagement by the directors^ 
 Re Town Topics Company, 20 M. R. 574. 
 
 6. Issuing shares at a discount — 
 
 Manitoba Joint Stock Companies Act, 
 sections 30 cfe 33. 
 
 Under The Manitoba Joint Stock 
 Companies Act, R. S. M., c. 25, ss. 30 & 
 33, it" is competent for the directors of a 
 Company to issue shares of its stock at 
 a discount, without the authority of a 
 general' meeting of the company, provided 
 that the issue is bona fide and the discount 
 is not greater than has been fixed by a 
 resolution passed at a previous general 
 meeting (if any). 
 
 This decision, however, applies only as 
 between the company and a shareholder, 
 and has no reference to questions arising 
 between creditoi-s and shareholders or in 
 case of a winding up. 
 
 The difference between our Act and 
 the EngUsh Joint Stock Companies Act, 
 under which Ex parte Daniell, 22 Beav. 
 46, was decided, pointed- out. 
 
 The defendant company had made an 
 agreement with the Edison Electric Co. 
 i^ot to issue any shares at a discount. 
 
 Held, that this did not affect the 
 validity of the issue of shares to the 
 plaintiff at a discount, though the Edison 
 Company might sue for damages for 
 breach of contract. Walsh v. North West 
 Electric Co., 11 M. R. 629. 
 
 Reversed, 29 S. C. R. 33. See next 
 case. 
 
 7. Issuing shares at a discount — 
 
 Directors — By-law — : Ultra vires — Calls for 
 unpaidbalances — Contributories — Trustees- 
 Powers — Contract — Fraud— -Breach of trust 
 — Statute, construction of — C. S. M., c. 9, 
 Div. 7— iJ. S. M. C.25, ss . 30, 33. ' 
 
 The directors of a joint stock company 
 incorporated in Manitoba have no powers 
 under the provisions of The Manitoba 
 Joint Stock Companies Incorporation 
 Act to make allotments of the capital 
 stock of the company at a rate per share 
 below the face value, and any by-law or 
 
 resolution of the directors assuming to 
 make such allotment without the sanction 
 of a general meeting of shareholders of 
 the company is invalid. ' 
 
 A bjr-law or resolution of the directors 
 of a joint stock company which operates 
 unequally towards the interests of any 
 class of the shareholders is invalid and 
 ultra vires of the company's powers. 
 
 Where shares in the capital stock of a 
 joint stock company have been illegally 
 issued below par the holder of the shares 
 is not thereby relieved from UabiUty for 
 calls for th^ unpaid balance of their par 
 ^ value. 
 
 Judgment of the Court of Queen's 
 Bench for Manitoba (11 M. R. 629) 
 reversed, Taschbreau, J., dissenting. 
 
 North West Electric Co. v. Walsh, 29 
 S. C. R. 33. 
 
 8, Liability of Directors for wages — 
 
 Manitoba Joint Stock Companies Act', 
 R.S.M. 1902, c. 30, ss. 27, 33. 
 
 1. Persons who accept transfers of 
 shares in a company incorporated under 
 the Manitoba Joint Stock Companies Act, 
 R.S.M. 1902, c. 30, and are elected and 
 act as directors of the company, cannot 
 escape the UabiUty for wages of employees 
 imposed upon directors by section 33 of 
 the Act by showing that they do not hold 
 the shares absolutely in their own right, 
 but only as security or in trust, notwith- 
 standing that, under section 27 of the 
 Act, such persons are not legally quaUfied 
 to be directors. 
 
 2. The provisions of secti6n 33 are 
 remedial and not penal in their nature, 
 being only the withholding from directors, 
 in respect of wages, of the freedom which 
 the' statute would otherwise give them 
 from personal Uabihty for all debts of the _ 
 company. Macdonald v. Drake, 16 M. R. 
 220. 
 
 9. Liability of promoters for return 
 of money paid for unallotted shares , 
 
 The plaintiff subscribed for stock on 
 the terms of a letter written to him by 
 the secretary of a committee of promoters 
 of /a projected Company, and paid half 
 the amount of his subscription. The 
 money was forwarded by the conamittee 
 to the incorporators of the Company; 
 which was incorporated under the laws of 
 Minnesota. No stock having been allot- 
 ted to the plaintiff, he brought an action 
 against the committee for the amount 
 paid, declaring upon the common indebi- 
 
COMPANY. 
 
 160 
 
 tatus counts. A non-suit was entered at 
 the trial. ' 
 
 Held (WooDi C. J., .dissenting), that 
 the non-suit was right. Breden v. Lyon, 
 T. W., 50. 
 
 10. Lien on shares for debt due to 
 Company — Power to make by-law pro- 
 viding for lien — Estoppel — Waiver. 
 
 A company incorporated , under The 
 Manitoba Joint Stock Companies Act, 
 R. S. M. 1902, c. 30, has, by virtue of 
 section 41 of the Act, power to make a 
 by-law providing that a hen shall exist 
 upon the shares of any stockholder for 
 any debt or liability to the company; and, 
 if such by-law has been passed, the com- 
 pany may maintain such hen as against 
 an execution creditor of a stockholder 
 whose shares have been fieized by the 
 sheriff under execution. 
 
 Child V. Hudson's Bay Co., (1723) 2 P. 
 Wms. 207, and Socieie Canadi&nne Fran- 
 caise v. Daveluy, (1891) 20 S. C. R. 449, 
 followed. 
 
 The shares in question, which were not 
 fully paid up, stood in the name of the 
 defendant's wife, but plaintiff on 1st 
 of May, 1907, recovered judgment 
 against the defendaiit, his wife and the\ 
 company declaring that the said shares 
 were the absolute property of the defend- 
 ant Mitchell and available under execution 
 in satisfaction of the plaintiff's judgment. 
 At that time a note given to the company 
 for the balance due on the shares was 
 held by the bank in which it -had been 
 discounted; but, before the time of the 
 seizure of the shares by the sheriff, that 
 note had fallen due and had been taken 
 up by the company. 
 
 Held, that, at the time of the recovery 
 of the 'last mentioned, judgment, there was 
 no debt due from Mitchell or his wife to 
 the company for which the company 
 could then have set up a hen, and it was 
 not estopped by the judgment from setting 
 up the lien as soon as it had taken up 
 the note. 
 
 Held, also, that the right to the hen 
 had not been waived or lost by the taking 
 and discounting of a promissory note for 
 the debt for which the lien was claimed. 
 Montgomery v. Mitchell, 18 M. R. 37. 
 
 11, Misnomer — • Pleading — Collateral 
 agreement. 
 
 Held, that misnomer of a plaintiff 
 corporation is not a ground for non-suit. 
 The defendant must object, by application 
 
 in chambers, to compel the plaintiff to 
 amend. 
 
 Held, that, where defendants move for 
 a non-suit upon the ground of misnomer, 
 the fact of incorporation of the plaintiff 
 company is admitted. 
 
 Semble, that the question whether the 
 plaintiff corporation does, or does not,_ 
 exist inust be raised by plea. ~ 
 
 Held, that, where there is a written but 
 unsealed agreement between a corporation 
 and an individual, parol evidence cannot 
 be given of a verbal collateral contract 
 (of the nature of that set out in the 
 pleadings) made at the same time by the 
 corporation. Great North Western Tele- 
 graph Co. V. McLaren,/!^ M. R. 358. * 
 1 
 
 12. RiglLt of action — Suit by share- 
 holder on behalf of himself and all othei- 
 shareholders — Refusal of company to take 
 proceedings— ^Demurrer . 
 
 Demurrer to plaintiff's bill, filed" on 
 behalf of himseK and aU other shareholders 
 of the H. B. R. "Company against Lloyd's 
 Banking Company, The West Cumberland 
 Iron Company, and the H. B. R. Com- 
 pany^ praying to have it declared, that 
 certain bonds of the Company, purporting 
 to have been issued by the Company and 
 deposited with The West Cumberland 
 Company by the president of the H. B. R. 
 Company as security for the payment of 
 certain acceptances of the H.~B. R. 
 Company and afterwards deUvered by 
 The West Cumberland Company to 
 Lloyd's Banking Company, were not a 
 charge upon the property and assets of 
 the H. B. R. Company or their land grant, 
 because it was ultra vires of the Company 
 to issue them, and because their issue was 
 not authorized by the Company, and that 
 Lloyd's Banking Company were not 
 lawful holders of the bonds, and that 
 they -might be ordered to deUver them iip, 
 and be restrained from disposing of them. 
 
 The bill alleged that the plaintiff had 
 been a shareholder since before 1886, and 
 was recognized by the railway company 
 as such; that he had repeatedly called 
 upon the directors and officers of the 
 railway company to take proceedings to 
 prevent the sale of the bonds, and to have 
 it declared that they were not properly 
 issued, but the Company and its directors 
 and officers had refused to take any such 
 proceedings. 
 
 Held, that the demurrer should be 
 allowed because the suit should have been 
 brought by the railway company, and the 
 plaintiff did not allege any sufficient 
 
161 
 
 COMPANY. 
 
 162 
 
 reason why it had not been so brought 
 and could not himself maintain the suit. 
 Foss V. Harbottle, 2 Hare, 491, and 
 Gray v. Lewis, L. R. 8 Ch. 1035, foUowed. 
 ~ " 7ie V.Lloyd, 11 C. L. T. Occ. N. 121. 
 
 13. "Shareholder" — What constitutes 
 — Manitoba joint Stock Companies Act, 
 amendment of 1905 — Appointment of in- 
 spector. I 
 
 A shareholder in a company need not 
 be the actual holder of a stock certificate. 
 
 Under a provision added to The Mani- 
 toba Joint Stock Companies Act- by 
 chapter 5 of the statutes of 1905,"not less 
 than one-fifth in value of the shareholders 
 of the opmpany" may apply for the 
 appointment of an inspector: — 
 
 Held, that two men who owned shares, 
 standing in the name- of a trust company 
 as bare trustees, were "shareholders" 
 within the meaning of the enactment. Be 
 Kootenay Valley Fruit Lands Co., 18 W. L. 
 R. 145. 
 
 14. Street Railway Company — Cor- 
 porate powers — ■ Municipality — ■ Use of 
 streets for poles and wires carrying electric 
 current — Agreement to keep power houses 
 within city limits — Forfeiture — ■ 
 Waiver — ■ Injunction — Estoppel — - 
 Meaning and scope of words "operation, 
 conduct and management" of a street rail- 
 way — - Parties to action — Pleading — 
 Amendment. 
 
 It was a term of the agreement between 
 the plaintiffs and the Winnipeg Electric 
 Street Railway Company that the Com- 
 pany would place and keep within the 
 city limits all their engines, machinery, 
 power houses, etc., for their street railway 
 system, and the agreement further pro- 
 vided that, in so far as its terms and 
 conditipns related to the operation, con- 
 duct and management of the railway 
 system, the same and the fulfilment of 
 same should be conditions precedent to 
 the continued enjoyment of the privileges 
 and rights of the Company. In 1904, 
 the above named Company amalgamated, 
 under the name of the defendants, with 
 the Winnipeg General Power Company 
 which had, under its charter powers, 
 constructed a hydro-electric plant at Lac 
 du Bonnet. on the Winnipeg River and a 
 line of poles and wires for the transmission 
 of the electric current to the City. The 
 Power Company's Act of Incorporation 
 gave it the right to erect poles and wires 
 in the streets of the City for the purpose 
 of conveying electric current for lighting. 
 
 heating or supplying motive power with 
 the consent of the council. No such con- 
 sent was ever given or asked for, but 
 after the amalgamation the defendants 
 discontinued the use of their steam power 
 plant in the City, and operated their 
 street railway system by power derived 
 from the alternating current brought into 
 the City from the power plant at Lac du 
 Bonnet and changed at a transforming 
 station in the City into the direct current 
 used for propelling the cars. 
 
 Held, RicHABDS, J. A., dissenting, that 
 there had been no breach of the term of 
 the agreement first above referred to, 
 that there was nothing in the agreement 
 requiring the defendants to generate their 
 own power for the purpose of operating 
 their cars, that they would have the right 
 to purchase power for that purpose from 
 any other company, and that the power 
 used in propelling the cars was in fact 
 generated within the City hmits. 
 
 Per Mathers, J., in the Court below. 
 There was a distinct breach of the agree- 
 ment for which an action for damages 
 would he, but the keeping of the power 
 houses within the City was not a condition 
 or term relating to the "operation, conduct 
 and management" of the railway system, 
 and therefore there was no forfeiture of 
 the rights and privileges of the defendants. 
 Moreover, if the agreement had fuU^ 
 provided for such forfeiture, the City had 
 waived it by afterwards passing by-laws 
 fixing schedules for the running of the 
 cars, by caUing on the Company to pro- 
 ceed at once with the construction and 
 operation of new Unes, which were 
 accordingly built and subsequently oper- 
 ated at great expense to the Company, 
 and by accepting five per cent of the 
 gross earnings of the Company payable 
 under the agreement, all these things 
 ha-ving been done after the plaintiffs had 
 full knowledge of the alleged breach of 
 the agreement. 
 
 The defendants through the amalga- 
 mation with the Power Company had 
 also acquired the right to develop electric 
 energy outside the City and to distribute 
 it in the City through poles and wires 
 for Ughting and commercial power pur- 
 poses, but only with the consent of the 
 City council; and their own Act of Incor- 
 poration empowered them to furnish 
 light and power and use the streets for 
 those purposes, but only when authorized 
 by a by-law of the City. 
 
 Held, (1) As no such consent had been 
 given or by-law passed, the plaintiffs were 
 
163 
 
 COMPANY. 
 
 164 
 
 entitled to an injunction to prevent the 
 defendants from erecting, maintaining or 
 re-erecting poles or wires on the streets, 
 lanes or highways of the City for the 
 transmission of electric energy for any 
 purpose other than for their street railway 
 and requiring the defendants, upon due 
 notice, to remove all such poles and wires 
 now used by them for any such other 
 purpose. 
 
 (2) The City was not estopped from 
 applying for the injunction by having 
 applied for, taken and paid for power 
 transmitted with its knowledge, over the 
 poles and wires objected to, from the 
 plant outside the City without its consent 
 and against its protest. 
 
 (3) The issue by the .City engineer of 
 a permit for the erection of the poles and 
 wires objected to, intended only to 
 authorize tfie use of them for electric 
 lighting purposes, did not obviate the 
 necessity of the consent of the City being 
 obtained for the transmission of current 
 for power purposes. Such a permit 
 amounted to no more than a hcense to 
 erect the poles and wires which might be 
 revoked at any time. 
 
 The Manitoba Electric and Gas Light 
 Company, incorporated in 1880 by special 
 Act of the Legislature, had power to use 
 the streets of the City for carrying on the 
 business of electric and gas lighting 
 within the City with the authority of the 
 Council and upon obtaining permits from 
 the City engineer. It carried on this 
 business with the necessary authority 
 until 1898, when it conveyed by deed its 
 systems of gas and electric light works 
 and also "all franchises, rights, powers, 
 assets, plant and appliances" to the 
 Winnipeg Electric Street Railway Co. 
 
 The Gas Company's Act gave it power 
 to alienate "any of its personal property, 
 lands, tenements, rights and franchises or 
 interest therein as it might see fit." 
 
 The defendants had also, in 1900, 
 acquired by deed from the Northwest 
 Electric Company, which had been in- 
 corporated by letters patent under The 
 Joint Stock Companies Act, its system of 
 electric lighting and power works which 
 it had been operating in the City under 
 conditions similar to those of the Gas 
 Company, and also all its "franchises, 
 rights, powers," &o. 
 
 Held, that neither the Gas Company 
 nor the Electric Company had power to 
 alienate its corporate powers, and that the 
 defendants had not, by said deeds, 
 acquired any right to erect or maintain 
 
 poles and wires in the streets of the City 
 for purposes of electric lighting, heating 
 or power, unless authorized to do so by 
 by-law of the City, although those com- 
 panies, which were now defunct, had 
 formerly acquired and exercised such 
 rights. 
 
 Held, also, that the Attorney General 
 was not a necessary party to the action. 
 
 Fenelon Falls v. Victoria Ry, Co., 29 
 Gr. 4, followed. 
 
 Wallasey Local Board v. Graeey,(18S7) 
 36 Ch. D. 593, distinguished. 
 
 The ratification by Act of the Legis- 
 lature of the by-law of the City providing 
 for the agreement between it and the 
 Company gave the terms of the by-law 
 the force of a statute, and thereafter the 
 plaintiffs could not by any action of theirs 
 lose their right to insist upon the Com- 
 pany complying with the terms of the 
 statute and the by-law, or give the 
 defendants any additional rights by 
 estoppel, waiver or acquiescence. 
 
 Pembroke v. Canada Central Ry. Co., 
 (1883) 3 O. R. 503; Port Arthur v. Fort 
 William, (1898) 25 A. R. 522, and Toronto 
 V. Toronto Ry. Co., (1906) 12 O. L. R. 
 534, distinguished. 
 
 The parties being unable to agree on 
 settling the minutes of the judgment to 
 be entered, the matter was afterwards 
 brought before the Court, when counsel 
 for defendants for the first time pointed 
 out that the relief granted went beyond 
 that asked for by the statement of claun. 
 
 Held, that the statement of claim 
 should not be amended at this stage, 
 although asked for by the plaintiffs, but 
 that, under . all the circumstances, the 
 judgment should stand. City of Winni-peg 
 V. Winnipeg Electric Railway Co., 20 M. 
 R. 337. 
 
 Reversed, ^ippeal of defendants allowed; 
 cross appeal of plaintiffs dismissed, and 
 action dismissed. [1912] A. C. 355. 
 
 16. Trading Coinpany— Lui&i2% on 
 
 promissory note signed by managing di- 
 rector — ■ The Manitoba Joint Stock 
 Companies Act, R. S. M., c. 25, s. 62. 
 
 The defendant Company was incor- 
 porated by Letters Patent under The 
 Manitoba Joint Stock Companies Act, 
 R. S. M., 0. 25, for the purpose of carrying 
 on a trading business, and plaintiffs sued 
 as indorsee of three promissory notes 
 given by the managing director of the 
 Company in its name to one Crighton for 
 tea ordered from him but never delivered. 
 
165 
 
 COMPENSATION FOR LAND INJURIOUSLY AFFECTED. 
 
 166 
 
 There was no by-law, resolution or 
 other act expressly dining the powers or 
 duties of the managing director, but the 
 evidence showed that the course of busi- 
 ness, of the Company was such that he 
 had frequently given similar promissory 
 notes -which had been paid by the Com- 
 pany's cheques without objection on the 
 part of the other directors or the auditors. 
 
 Held, that the notes sued on had been 
 made in general accordance with the 
 powers of the managing director within 
 the meaning of section 62 of the Act knd 
 were binding on the Company. Imperial 
 Bank v. Farmers' Trading Co., 13 M. R. 
 412. 
 
 See Bills and Notes, X, 4. 
 
 — Conditional Sale, 7. 
 — • Contempt of CotrET, 2. 
 
 — COHPORATION, 5. 
 
 — Costs, XIII, 11. 
 
 — ■ Examination of Jttdgment Dbbtok, 
 
 3. 
 — • Malicious Prosecution, 2. 
 
 — Master and Servant, IV, 1, 2, 4. 
 — ■ Practice, II, 3, 4. 
 
 — Production of Documents, 11. 
 
 — Real Property Act, I, 2. 
 — ■ Scire Facias. 
 
 — Security for Costs, IV, 1, 2. 
 
 — Summary Conviction. 
 
 — Winding-up, I, 3; II, 2; IV, 1, 3, 5, 8. 
 
 COMPENSATION FOR LAND 
 INJURIOUSLY AFFECTED. 
 
 See Municipality, I, 5; VIII, 2. 
 — Railways, XI, 1.- 
 
 COMPENSATION IN RESPECT 
 OF DEATH. 
 
 See Lord Campbell's Act, 3. 
 
 COMPLETION OF CONTRACT. 
 
 See Mechanic's Lien, I; III; VII, 1, 2; 
 X, 1. " 
 
 COMPUTATION OF TIME. 
 
 See Time, 1, 2. 
 
 — Winding-up, I, 3 
 
 CONCEALED FRAUD. 
 
 See Misrepresentation, III, 3; 
 
 CONCEALMENT OF GOODS. 
 
 See Criminal Law, XVII, 6. 
 
 CONDITION. 
 
 See Accident Insuhancb, 2. 
 — Fire Insurance, 1. 
 — ^ Railways, VIII, 1. 
 
 CONDITION PRECEDENT. 
 
 See Building Contract, 1. 
 — ■ Bailment, 2. 
 
 — Contract, IX, 1. 
 
 — Crown Lands, 2. 
 
 — ■ Fire Insurance, 1, 5. 
 
 — ■ Half Breed Lands Act, 3. 
 
 — Pleading, XI, 4. 
 
 — Sale of Goods, IV, 1. 
 
 — • Summary Judgment, II, 2. 
 
 CONDITION PROTECTING 
 PURCHASERS. 
 
 See Mortgagor and Mortgagee, 'IV, 1. 
 
 CONDITIONAL APPROVAL. 
 
 See Municipality, I, 1. 
 
 CONDITIONAL LIABILITY. 
 
 See Garnishment, V, 2. 
 
 CONDITIONAL SALE. 
 
 1. Collateral verbal agreement—Lien 
 
 note — Verbal agreement at time of sale to 
 give lien note afterwards — Prie/rity as be- 
 tween chattel mortgage and lien note — 
 The Sak of Goods Act, R.S.M. 1902, c. 
 152, s. 26. 
 
167 
 
 CONDITIONAL SALE. 
 
 168 
 
 A lien note given for the price of 
 chattels sold on credit, with the verbal 
 stipulation that the title to and property 
 in the goods should not pass until payment 
 of the price in fuU, should, under sub- 
 section (b) of section 26 of The Sale of 
 Goods Act, R.S.M. 1902, c. 152^ be 
 signed before or at the time of the dehvery 
 of the chattels, or so soon thereafter as to 
 form part of one transaction; otherwise 
 the purchaser, by making a subsequent 
 sale or mortgage of the chattels to a third 
 party without notice of the lien, may 
 confer a title to the chattels on such 
 third party which will, under sub-section 
 (a) of the same section, cut out that of 
 the original vendor even although he has 
 meantime procured such hen note to be 
 signed by his vendee. Collom v. McGrath, 
 15 M. R. 96. 
 
 2. Dealer disposing of horses in the 
 ordinary course of his business— SoZe 
 of Goods Act, R.S.M. 1902, c. 152, s. 26— 
 Lien notes. 
 
 When a person makes a conditional 
 sale of a team of horses and deUvers them 
 to one whom he knows to be a dealer in 
 horses and to be buying them for the 
 purpose of re-selling them at a profit, 
 although he takes an agreement in the 
 form usually called a lien note on the 
 horses to secure the price, he thereby 
 clothes the purchaser with implied author- 
 ity to sell the horses and to transfer a 
 good title free from the hen to a bona fide 
 purchaser who has no notice or knowledge 
 of the' existence of the hen. Such sub- 
 purchaser, therefore, is not bound to 
 give up the horses to the holder of the 
 lien note, though it be not paid; and, if 
 he does, he cannot recover afterwards in 
 an action for breach of warranty of title 
 against one who has not been guilty of 
 fraud. 
 
 The decisions in the cases of grantors 
 of bills of sale and chattel mortgages who 
 remain in possession of the goods and sell 
 them in the ordinary course of their 
 business, as in National Mercantile Bank 
 V. Hampsan, (1889) 5 Q.B.D. 177; 
 WcHker v. Clay, (1880) 49 L.J.Q.B 560,. 
 and Dedrick v. Ashdoum, (1888) 15 S.C.R. 
 227, apply also in the case of claims -under 
 lien notes. The reason for applsdng the 
 doctrine of implied authority in the latter 
 case is stronger than in the former, 
 because lien notes are not registered and 
 a purchaser of horses has no means of 
 ascertaining whether they are incumbered 
 or not. 
 
 When the implied authority to sell 
 exists, a good title may be transferred 
 independently of sub-section (o) of section 
 26 of the Sale of Goods Act, R.S.M. 1902, 
 c. 152; and sub-section (b) of the same 
 section, which only excepts goods pur- 
 chased under lien notes from the operation 
 of sub-section (a), does not prevent the 
 application of the principle referred to. 
 Brett V. Foorsen, 17 M. R. 241. 
 
 3. Dealer disposing of horses in the 
 ordinary course of his business— 
 
 Evidence — New trial — lAen note. 
 
 The pla'ntiff's claim was for damages 
 for the seiziu'e by the defendants of a 
 team of horses which he bought from one 
 Brett. The defendants had sold the 
 horses to one Foorsen taking a hen note 
 for the purchase money. The plaintiff 
 purchased without any notice or knowl- 
 edge of the existence of this hen note and 
 gave full value. 
 
 The trial Judge found that the defend- 
 ants, when they sold to Foorsen, knew 
 that his business, was that of a horse 
 dealer and that he would re-sell in the 
 ordinary course of his business and, in all 
 likehhood, to an innocent purchaser, and, 
 following Brett v. Foorsen, 17 M.R. 241, 
 gave plaintiff a verdict. 
 
 Held, on appeal, that this verdict must 
 be set aside because the plaintiff had 
 failed to give any evidence of his title to 
 the horses other than that he had pur- 
 chased for value from Brett and had 
 given no evidence of the sale to Foorsen 
 or of the sale by Foorsen to Brett. 
 
 Plaintiff allowed a new trial on payment 
 of costs of the former trial and of the 
 appeal. Pelekaise v. McLean, 18 M. R. 
 421. 
 
 4. Lien Notes Act, R. S. M. 1892, c. 
 87, s. 2, construction of — Constritction 
 of bailment — Right of possession — Cliattels 
 other than manufactured goods. 
 
 A promissory note given for the price 
 of a horse provided that the title, owner- 
 ship, right of property and right of pos- 
 session in the property for which the note 
 was given should remain in the vendor or 
 holder of the note, until the note should 
 be fuUy paid. 
 
 Held, that this instrument was neither 
 a receipt note, nor a hire receipt, nor an 
 order for chattels within the meaning of 
 The Lien Notes Act, R. S. M., c. 87, s. 2, 
 and that an endorsee of the note was 
 entitled to the horse as against an innocent 
 purchaser for value. 
 
169 
 
 CONDITIONAL SALE. 
 
 170 
 
 Semble. The above mentioned statute 
 does hot make all receipt notes, hire 
 receipts and orders for chattels mentioned 
 in it, except those taken for manufactured 
 goods having the manufacturer's name or 
 some other distinguishing name painted 
 or printed thereon, invalid and void as 
 against purchasers in good faith. Suther- 
 land v. Mannix, 8 M. R. 541. 
 
 5. Lien Notes Act, R. S. M. 1902,. c. 
 99, ss. 4, 7, construction ot— Charge on 
 land created by agreement separate from 
 order for chattel — Caveat. 
 
 Section 4 of The Lien Notes Act, R. S. 
 M. 1902, c. 99, does not forbid the regis- 
 tration of a separate document creating a 
 charge on the land of the person signing 
 it for a named sum of money or of a 
 caveat founded on such document, al- 
 though it is really given to secure the pur- 
 chase money of a chattel bought by 
 him under a conditional sale agreement 
 simultaneously entered into, if the docu- 
 ment registered does not contain as a 
 portion thereof and has not annexed 
 thereto or indorsed thereon any order, 
 contract or agreement for the purchase or 
 delivery of any chattel; and section 7 of 
 the Act only makes void an instrument, 
 the registration of which is forbidden by 
 section 4. Smith v. American-Abell En- 
 gine & Thresher Co., 17 M. R. 5. 
 
 6. Principal and agent — Sale of i 
 — Judgment unsatisfied no bar to plaintiff's 
 claim against third party. 
 
 In an action of replevin to recover from 
 defendant a drill and a gang plough 
 purchased by him from one Reid, it 
 appeared that -Reid had a place of business 
 at Neepawa, and was acting as agent for 
 plaintiff in the sale of the driU, but the 
 plough had been bought by him from the 
 plaintiff for the purpose of reseUing 
 
 The property in both articles was by 
 agreement between the plaintiff and Reid 
 to remain in the plaintiff until payment 
 was made in full, and the names of the 
 makers were painted or stamped on the 
 articles so as to satisfy the provisions of 
 The Lien Notes Act. Reid had accepted 
 a horse valued at $75 in part payment 
 for the drill, and another horse valued at 
 $4X1 in part payment for the plough. No 
 part of the consideration for the sale of 
 either article ever reached the plaintiff, 
 and the sales had not been ratified by 
 him. 
 
 The defendant was aware that Reid 
 was only a machine agent, and he knew 
 
 when he bought the drUl that the real 
 owner of it was the plaintiff; but he 
 claimed that he did not know that any 
 person but Reid had any ownership in 
 the plough. 
 
 The facts showed, however, in the 
 opinion of the Judge who tried the case, 
 that the defendant was not a bona fide 
 purchaser in the ordinary course of busi- 
 ness, but that the circumstances put him 
 upon inquiry as to the ownership of the 
 plough. 
 
 Held, that the plaintiff was entitled to 
 recover both the .plough and the drill. 
 
 The plaintiff had recovered judgment 
 against Reid for the amount of a certain 
 note, which included the price of the 
 plough, but the judgment was wholly 
 unsatisfied. 
 
 Held, that this was no bar to the 
 plaintiff's claim to recover the plough 
 from the defendant. Wesbrook v. Wil- 
 loughby, 10 M. R. 690. 
 
 7. Purchaser without notice— Powers 
 
 of Joint Stock Company — -Promissory note 
 of Conipany — Authority of Manager of 
 Company to sign note. 
 
 Plaintiff sold a buggy to the Gold Seal 
 Oyster Company, which was incorpor- 
 ated under 'The Manitoba Joint Stock 
 Companies Act, for the purpose of carrying 
 on (amongst other things) a retail business 
 in the sale of oysters, fish and poultry in 
 the City of Winnipeg The sale was a 
 conditional one, and the plaintiff took a 
 note for the amount of the piu'chaae 
 money signed "G()ld Seal Oyster Co. 
 T. H. Jones, Sec.-Treas." The buggy 
 was used in the business of the Company 
 for the deHvery of goods and soUciting of 
 orders, although it was sometimes used by 
 the managei: of the Company for pleasure 
 driving. The note contained the pro- 
 vision that the property in the buggy and 
 the right of possession should not pass 
 from the plamtiff until payment of the 
 amount in full. 
 
 The defendant afterwards purchased 
 the buggy from Jones, the manager of the 
 Company. He did not know that plaintiff 
 had any claim on it. 
 
 Held, (1), That the purchase of the 
 buggy and the giving of the note for it, 
 were within the corporate powers of the 
 Company. (2) That ia the absence of 
 evidence to the contrary it should be 
 presumed that the manager -of the Com- 
 pany had authority to purchase the buggy 
 and to sign the note therefor. (3) And 
 that the defence of purchase for value" 
 
171 
 
 CONDITIONS OF INSURANCE. 
 
 172 
 
 without notice could not prevail against 
 the plaintiff's title. Boyce v. McDonald, 
 9 M. R. 297, 
 
 See CoNTHACT, III, 1, 2. 
 
 — FlXTtJEES, 2, 3. 
 
 — ■ Replevin, 5. 
 
 — Sale of Goods, VI, 4. 
 ^ Warranty, 2. 
 
 CONDITIONS OF INSURANCE. 
 
 See Principal and Surety, 3. 
 
 CONDUCT MONEY. 
 
 See Examination op Judgment Debtor, 
 2. 
 
 CONFESSING JUDGMENT. 
 
 See Fraudulent Judgment, 1. 
 
 CONFESSIONS. 
 
 See Criminal Law, VI, 1, 2 
 ^ Extradition, 2. 
 
 CONFIDENTIAL 
 COMMUNICATIONS. 
 
 See Scandalous Matter. 
 
 CONFLICT OP EVIDENCE. 
 
 Appeal from County Court, V. 3. 
 
 CONFLICT OF LAWS 
 
 1. Foreign bankrupt — Assets in Mani- 
 toba of foreign bankrupt---Garnishment — 
 Quern's Bench Act, 1895, Bvle 196 Qi). 
 
 A debt owing by a resident of this 
 Province to a foreign corporation, though 
 payable at its place of business in a 
 foreigp state", is nevertheless an asset of 
 sudh corporation in Manitoba within the 
 meaning of Rule 196 (A) of The Queen's 
 Bench Act, 1896, as added to by 61 Vic, 
 
 c. 13, so as to give the Court jurisdiction / 
 to entertain an action which cbuld not 
 otherwise be brought iu this Province. 
 
 Blackwood v. The Queen, (1882) 8 A. C. 
 82; The Commissioner of Stamps v. Hope, 
 [1891] A. C. 476; and Tn re Maudslay, 
 [1900] 1 Ch. 602, followed. 
 
 But when proceedings in bankruptcy 
 had been commenced against the foreign 
 corporation and a temporary receiver of 
 all its assets appointed before the com- 
 mencement of the action here, in which a 
 garnishing order had been made attaching 
 such debt, it was held that such debt had 
 ceased to be an asset in Manitoba such 
 as would confer jurisdiction on the Court 
 in the action under the above mentioned 
 Rule and that the action should be 
 dismissed with costs. 
 
 It is an estabUshed principle of English 
 law that the attachment or assignment by 
 involuntary proceedings under the bank- 
 ruptcy laws of a foreign country in which 
 a bankrupt is domiciled affects or transfers 
 the title to his purely personal property 
 in England unless the rights of citizens 
 under some special statute are prejudicially 
 affected; and such principle should be 
 adopted here. 
 
 In re Oriental Inland Steam Co., (1874) 
 L. R. 9 Ch. 557; Sill v. Worswick, (1791) 
 1 H. Bl. 665, followed. 
 
 Held, also, that, at the commencement 
 of the action, the company had not assets 
 in Manitoba which might be rendered 
 liable to any judgment to be recovered, 
 because the debt attached was not one 
 which the defendant could properly at 
 that time, and without violating the. 
 rights of Others, deal with: Roberts v. 
 Death, (1881) 8 Q. B. D. 319; Badeky v. 
 The Consolidated Bank, (1888) 38 Ch. D. 
 238, and Bertrand v. Heaman, (1895) 11 
 M. R., at p. 208, followed. Brand v. 
 Green, 13 M. R. 101. 
 
 Distinguished, Bank of Nova Scotia v. 
 Booth, 19 M. R. 471. 
 
 2. Lex loci contractus^/ 
 
 order for leave to appear — Note payable in 
 "legal tender money" — PUice of payment. 
 , Held, that, upon new material, it is 
 competent for one judge to set aside the 
 order of another. 
 
 2. That the words "payable in legal 
 tender money," in a note, convey no 
 meaning beyond or otherwise than would 
 have been given to the note if these words 
 had been omitted. 
 
 3. Where a note is payable at a par- 
 ticular placfe, but does not contain the 
 
173 
 
 CONSENSUS AD IDEM. 
 
 174 
 
 words "and not otherwise or elsewhere," 
 the lex loci contractus, and not the lex lod, 
 solutionis, prevails. North-Westem Na- 
 tional Bank V. Jarvis, 2 M. R. 53. 
 
 3. Lex loci solutionis — Railway — 
 Pleading — International law. ' 
 
 To a, declaration in contract against a 
 railway company for loss of baggage, the 
 company, as to $100 of the claim, pleaded 
 that the baggage was carried imder a 
 contract whereby "the baggage liability 
 is limited to wearing apparel not exceeding 
 $100 in value." Replication that the 
 contract was made in the State of Maine, 
 that by the law of that State plaintiff 
 (for reasons assigned), was not bomid by 
 the limitations. 
 
 Upon demurrer the replication was held 
 bad. 
 
 A contract made in one country to be 
 performed in another is governed by the 
 iaw of the latter jurisdiction. 
 
 Semble, where there is a contract with 
 a corporation for carriage through several 
 States, with distinct laws, the law of the 
 State where the corporation has its seat 
 and principal office prevails. Brown v. 
 C. P. B., 4 M. R. 396. 
 
 ■Siee Foreign Judgment, 8. 
 — Life Insttbance, 4, 5. 
 — ■ LoKD Campbell's Act, 2. 
 
 CONSOLIDATION OF ACTIONS. 
 
 See Warranty, 5. 
 
 CONSENSUS AD IDEM. 
 
 (See Contract, IX, 2. 
 
 CONSENT ORDER. 
 
 See Practice, XXVIII, 4. 
 
 CONSIDERATION. 
 
 •See Banks and Banking, 7. 
 
 — Bills and Notes, IV, 2, 3, 4, 5. 
 
 — Bills of Sale, 4. 
 
 — Chattel Mortgage, V, 2. 
 
 — Contract, IV, 1, 2: VI, 2; VIII, 1: 
 
 XV, 8. 
 
 — Distress for Rent, 1! 
 
 — Estoppel, 4. 
 
 — FRAtrOtTLENT CONVEYANCE, 22. 
 
 -^ Solicitor and Client, I, 2. 
 
 CONSPIRACY. 
 
 See Trade Unions. 
 
 CONSPIRACY IN RESTRAINT OF 
 TRADE 
 
 1. Agreement to boycott plaintifE in 
 his business. 
 
 Plaintiff and defendants were members 
 of a corporation known as "The Winnipeg 
 Grain and Produce Exchange," and dealt 
 in grain both on their own account and 
 for others on commission. 
 
 The defendants and other members of 
 the Exchange, having come to the con- 
 clusion that the plamtiff was using his 
 position as a member to assist other 
 dealers not members to carry on dealings 
 in grain with members in violation of the 
 rules of the Exchange as to commission, 
 agreed amongst themselves that they 
 would neither sell to nor buy grain from 
 the plaintiff; and the defendants after- 
 wards carried out this agreement, thereby 
 causing loss and damage to the plaintiff 
 in his business as a grain dealer. The 
 defendants in so combining were not 
 actuated by any maUcious feehng towards 
 the plaintiff, but solely by the desire to 
 serve the business interests of themselves 
 and the Hiembers of the Exchange gen-, 
 eraUy, and in the protection of the market 
 created under the rules of the Exchange. 
 They had not attempted to coerce the 
 plaintiff by violence or threats or to 
 induce him or others to break any contract, 
 nor had they tried to induce others to 
 refrain from dealing with the plaintiff. 
 
 Held, that the acts of the defendants 
 were no more than a lawful exercise of 
 their rights, and that there was no con- 
 spiracy to do any illegal act or for any 
 , illegal object or to use any, means that 
 would be unlawful if used by an individual, 
 and that, in the absence of any evidence 
 of maUcious or improper motive, the 
 combination and the pursuit of its objects 
 did not affect any legal right of the 
 plaintiff or operate to do him any legal 
 injury. A combination such as the de- 
 fendants had entered into, although 
 resulting in damage to some person or 
 
175 
 
 CONSPIRACY IN RESTRAINT OF TRADE. 
 
 176 
 
 persons, is actionable only in cases where 
 its object is unlawful, or where, if lawful, 
 such object is attained by unlawful means. 
 The Mogul Steamship Co. v. McGregor, 
 [1892] A. C. 25, and Allen v. Flood, [1898] 
 A. C. 1, followed. Gibbins v. Metcalfe, 
 15 M. R. 560. 
 
 2. Criminal combination — Criminal 
 Code, ss. 496, 498 — Grain Exchange Rules 
 and Regulations — Evidence. 
 
 1. Section 496 of the Criminal Code, 
 R.S.C. 1906, c. 146, must be read along 
 with section 498, and, notwithstanding the 
 absence of the word "unduly" from sub- 
 section (b) of section 498 and its presence 
 in sub-sections (a), (c) and (d), it is only 
 such combinations as contemplate the 
 doing of unlawful acts that are punishable 
 criminally under section 498 (b), although 
 they may to a limited extent restrain or 
 injure trade or commerce in relation to a 
 commodity which is a subject of trade or 
 commerce, and the statute condemns 
 only those restraints which are not 
 justified by any personal interests of the 
 combining parties, but are mere maUcious 
 restraints unconnected with any of their 
 business relations. 
 
 Gihbins v. Metcalfe, (1905) 15 M.R. 
 583; Mogul Steamship Co. v. McGregor, 
 ^892] A. C. 25; Hopkins v. United 
 States, (1898) 171 U.S.R. 594, and United 
 States V. Joint Traffic Association, (1898) 
 ib. 568, followed. 
 
 2. Regulations made by the members 
 of a grain exchange intended, and pri- 
 marily operating, for the proper carrying 
 on of their trade and for the reasonable 
 benefit of the members are not a crime or 
 an illegal conspiracy, even though in- 
 directly, to some extent, they do restrain 
 trade. 
 
 Swaine v. Wilson, (1889) 24 Q.B.D. 
 "252, followed. 
 
 3. None of the by-laws, rules and regu- 
 lations following, adopted and enforced 
 by the members of a grain exchange, 
 although more or less in restraint of trade 
 or commerce in wheat, can be said to be 
 undue restraints so as to render the 
 members punishable under the Code. 
 
 a. A by-law prohibiting the members 
 from charging, on the purchase or selling 
 of grain, less than one cent, per bushel as 
 commission. 
 
 b. A by-law prohibiting members from 
 employing agents to buy ^ain at points 
 where the volume of business was not 
 sufficient to enable them to pay a salary 
 of $50 per month. 
 
 c. A regulation forbidding members 
 from buying track wheat at country 
 points during the market hours on the 
 Exchange (9.30 a.m. to 1.15 p.m.) 
 
 d. An agreement amongst the elevator^ 
 companies that, during a portion of each 
 year towards the close of navigation, 
 they would not have more than 5000 
 bushels of purchased wheat in any one 
 interior elevator at any one time. 
 
 e. An agreement between elevator com- 
 panies for the pooling of receipts at 
 certain points whe^g, from a variety of- 
 causes, there was more elevator capacity 
 than the trade required and the companies 
 found it necessary, in order to cut down 
 expenses and avoid raising the elevator 
 charges, to adopt that agreement. 
 
 4. The above mentioned regulations 
 and acts complained of by the Crown, 
 taken in coimection with their surrounding 
 conditions, made on the whole for a more 
 stable market at the fullest values than 
 if totally um-egulated competition had 
 prevailed, and so were for the public good. 
 
 5. The trial Judge properly rejected as 
 evidence the books of elevator companies 
 with which the accused did not appear to 
 be connected. Rex v. Gage, 18 M. R. 175. 
 
 3. Criminal combination — Illegal 
 contract — Criminal Code, s. 498 (6), (d) — 
 Meaning of word "unduly." 
 
 1. An agreement between two junk 
 dealers, although they controlled nearly 
 the whole trade in junk over a large 
 territory, whereby they fixed the prices 
 at which they would buy and seU junk 
 for a year and agreed to divide equally 
 between them the profits and losses of the 
 business transacted by both during that 
 period, would not be void at common law 
 as being in undue restraint of trade or 
 unduly preventing competition. 
 
 Collins V. Locke, (1879) 4 A. C. 674; 
 Mogul Steamship Co. v. McGregor, [1892] 
 A. C. 25; Nordenfelt v. Maxim Nordenfelt 
 & Co., [1894] A. C. 535; Elliman v. 
 Carrington, [1901] 2 Ch. 275,' and Rex v. 
 Gage, (1908) 18 M. R. 175, foUowed. 
 
 2. An agreement to be punishable as a 
 crime under sub-section (b) of section 
 498 of the Criminal Code as in restraint of 
 trade, or under sub-section (d) as unduly 
 preventing or lessening competition, must 
 be such an agreement as the coxirts 
 would, independently of the statute, 
 declare illegal as being in unreasonable 
 restraint of trade or competition on 
 grounds of pubUo policy and therefore 
 unenf<wceable between the parties; and, 
 
177 
 
 CONSPIRACY TO INJURE. 
 
 178 
 
 if it is not such an agreement, it will be 
 enforceable notwithstanding anything in 
 that section. 
 
 Urmston v. Whitelegg, (1890) 63 L.T. 
 N.S. 455; Rex v. Clarke, (1907) 14 Can. 
 Cr. Cas. 46: Wampole v. Kam, (1906) 11 
 O.L.R. 619, and Rex v. Elliott, (1905) 9 
 O.L.R. 648, distinguished. 
 
 Shragge v. Weidman, 20 M. R. 178. 
 Appealed to Supreme Court, which 
 Court (46 S.C.R.l) overruled'the Court of 
 Appeal in Manitoba and restored the 
 judgment of Mathers, C.J. K.B., (20 M. 
 R. 181) who held, following Rex v. Clark, 
 14 Can. Cr. Cas. 46; Wampole v. Kam, 
 11 O.L.R. 619,and Rex Y.Elliott, 9 O.L.R. 
 ■648, that the agreement was in direct 
 violation of sub-section (d) of section 
 498 of the Criminal Code as unduly 
 preventing competition and, therefore, 
 one which could not be enforced by 
 action between the parties. 
 
 CONSPIRACY TO INJURE. 
 
 See Trade Unions, 1, 2. 
 
 CONSTABLE. 
 
 See False Imprisonment, 1, 2. 
 
 CONSTITUTIONAL LAW 
 
 1. Act to authorize building of 
 bridge over navigable river — Mandamus 
 to purchase bridge — Bridge company — 
 Local charter — Navigable river — Jurisdic- 
 tion of Legislative Assembly. 
 
 By an Act of the Legislature of Mani- 
 toba, 45 Vic, 0. 41, the Brandon Bridge 
 Company was incorporated and empow- 
 ered to build a bridge across the Assini- 
 boine River; and, by another Act, 45 Vic, 
 c 35, incorporating the City of Brandon, 
 power was given to the Mayor and 
 Council to purchase any bridge built, or 
 being built, within the city. 
 
 On an appUcation by. an adjoining land 
 owner for a mandamus to compel the city 
 to purchase the bridge. 
 
 Held, 1 . The Act authorizing the build- 
 ing of the bridge was ultra vires of the 
 Local Legislature. 
 
 2. That the title of the Bridge Com- 
 pany was not such as would be forced 
 upon an unwilling purchaser. Re Brandon 
 Bridge, 2 M. R. 14. 
 
 2. Act respecting evidence in ques- 
 tions afEecting land in Province — Par- 
 liament of Canada— Public document, proof 
 of by certified copy. 
 
 1. Certain provisions of an Act of the 
 Dominion Parliament (46 Vic.,c. 17, s. 2, 
 s.-s. 4) for the reception in evidence of 
 certified copies of documents and records 
 in the Dominion Lands Office are ultra 
 vires, so far as they can be considered to 
 apply to suits merely for the cancellation 
 as clouds upon title of conveyances (not 
 being letters patent from the Crown) 
 registered under the Lands Registration 
 Act. 
 
 2. By the Imperial statute 14 & 15 Vic, 
 c 99, s. 14, certain provision is made for 
 the proof of books and documents of a 
 pubhc nature by the production of an 
 examined copy, ''provided it purport to 
 be signed and certified as a true copy 
 * * * by the officer to whose custody 
 the original is entrusted." 
 
 A copy of a book, within this statute, 
 certified by "A. RusseU, Acting Surveyor- 
 General,' ' the original of which.was proved 
 to be in the Department of the Interior, 
 in the Dominion Lands office, at Ottawa, — 
 
 Held, not sufficient evidence without 
 proof that A. Russell was the officer to 
 whose custody the original had been en- 
 trusted. McKilligan v. Machar, 3 M. R. 
 418. 
 
 3. Act to punish keeping of a 
 gambling house — Ultra vires— Criminal 
 law — British N-orth America Act, s. 91, 
 s-s. 27. 
 
 A "gambling house'' is the same thing 
 as a "common gaming house." 
 
 Keeping a gambhng house is an offence 
 against the general criminal law, conse- 
 quently it can be dealt with only by the 
 Parhament of Canada, and cannot be 
 made an offence by a Provincial Act, or 
 by a municipal by-law, passed under the 
 authority of such an Act. 
 
 Reg V. Wason, 17 A. R. 221, considered 
 and commented on. Reg. v. Shaw, 7 M. 
 R. 518. 
 
 4. Game laws — Ultra vires. 
 
 The Provincial Statute 46 & 47 Vic, c 
 19, as amended by 47 Vic, c 10, s. 25, 
 s-s. (g), regulating the killing and posses- 
 sion of game at certain seasons of the year, 
 is intra vires, being within those clauses 
 of the B. N. A. Act relating to "Property 
 and Civil Rights," and "Matters of a 
 merely local or private nature." 
 
179 
 
 CONSTITUTIONAL LAW. 
 
 180 
 
 The provision that couviotions for 
 offences against the statute should not be 
 removable b^ certiorari is also intra vires. 
 Queen v. Robertson, 3 M. R. 613. 
 
 5. Act respecting interest on overdue 
 taxes — Retrospective statutes. 
 
 By the Act of 1886; " In cities a rate 
 of j| per cent, at the end of each month 
 shall be added upon overdue taxes, the 
 same to commence on the 1st day of 
 January, from and after the ypar in which 
 the rate shall have been levied." 
 
 By the Act of 1888 (May) the provision 
 of 1886 was repealed, and the following 
 substituted: "Upon all taxes remaining 
 due and unpaid on the 31st December, 
 there shall be added a rate of ^ per cent, 
 per month at the beginning of each month 
 thereafter." 
 
 • Certain taxes having been due for the 
 years 1885, 1886 and 1887, 
 
 Held, 1. That the statutes were not 
 retrospective; that no percentage could 
 be added to the 1885 taxes; that none 
 could be added under the 1886 statute 
 after its repeal in May, 1888; and none 
 under the 1888 statute until after the 
 following 31st of D^elnber. 
 
 2. That viewing the whole statute the 
 percentage was in reality interest and so 
 ultra vires of the Legislature. (Affirming 
 ^Taylor, C.J., Kjllam, J., dissenting.) 
 
 Bain, J., founded his opinion on the 
 fact that the interest exceeded 6 per 
 cent, per annum. Schidtz v. Winnipeg, 
 6 M. R. 35. 
 
 But see Morden v. South Dufferin, 19 
 S. C. R. 205. 
 
 6. Interest upon taxes. 
 
 A Provincial statute provided that aU 
 parties paying taxes prior to a certain 
 daite should be entitled to a reduction of 
 ten per cent., and that there should be 
 added to all taxes unpaid upon a certain 
 later date a sum of ten per cent. 
 
 Held, 1. (FoUowing ScMte v. Winnipeg, 
 6 Man. R. 35.) That viewing the whole 
 statute the amount to be added was in 
 reality interest, and as the provision was 
 ultra vires interest .at six per cent, could 
 not be charged. 
 
 2. That the provision as to rebate was 
 intra vires. Morden v. South Dii/ffkrin, 6 
 M. R. 515. 
 
 Reversed, 19 S. C. R. 204. See next 
 cases. 
 
 7. Interest on overdue taxes— B.A^.A. 
 Act, ss. 91 tfe 92 — Interest — Legislative 
 
 authority over — Municipal Act — 49 V., c. 
 62, s. 626, 50 V., c. 10, s. 43 (Man.)— Tax- 
 ation — Penalty for not paying taxes — 
 Additional rate. 
 
 The Municipal Act of Manitoba pro- 
 vides that persons paying taxes before 
 December 1st in cities and December 
 31st in rural mxipicipaUties shall be 
 allowed 10 per cent, discount; that from 
 that date UintU March 1st the taxes shall 
 be payable at par, and after March 1st 
 10 per cent, on the original amount of 
 the tax shall be added. 
 
 Held, reversing the judgment of the 
 Court below, 6 M. R. 515, Gwtnne, J. 
 dissenting, that the 10 per cent, added on 
 Marct 1st is only an additional rate or 
 tax imposed as a penalty for nonpayment 
 which the Local Legidature, under itg 
 authority to legislate with respect to 
 municipal institutions, had power to 
 impose, and it was not "interest" within 
 the meaning of sec. 91 of the B. N. A. 
 Act. Ross V. Torrance, 2 Legal News 
 186, overruled. 
 
 Lynch v. Canada North-West Land 
 Company, Morden v. South Dufferin, 
 Barber v. Gibbins, 19 S. C. R; 204. 
 
 8. Laws in force jn Manitoba — Issiie 
 of patent on false representation. 
 
 Held, 1. Where a patent is issued in 
 error, throujgh the false and fraudulent 
 representations of the patentee, he may 
 be declared to be a trustee- of the land 
 for the party legally entitled thereto. ■ 
 
 2. The laws in force in Manitoba have 
 been as follows: 
 
 Up to 11th April, 1862, the law of 
 England, at the date of the Hudson's Bay 
 Company's Charter. 
 
 On 11th April, 1862, the law of England 
 at the date of Her Majesty's accession 
 was introduced. 
 
 On 7th January, 1864, the law of- 
 England, as it stood at that date, was 
 declared to be the law of Assiniboia. 
 Keating v. Moises, 2 M. R. 47. 
 
 Not followed, Sinclair v. Mulligan, 5 
 M. R. 17. 
 
 9. Laws in force in Assiniboia— 
 
 Evidence. 
 
 The laws as to the transfer of property 
 prior to the incorporation of this territory 
 with Canada were the laws which existed 
 in England at the date of the Charter of 
 the Hudson's Bay Co., 2nd May, 1670, 
 so far as such laws were applicable to the 
 condition of the coimtry. The Statute 
 of Uses was in force. The Statute ot 
 
181 
 
 CONSTITUTIONAL LAW. 
 
 182 
 
 Enrollments (27 Hen. VIII, c. 16) was not. 
 The Statute of Frauds was not in force, 
 not having been passed until after the 
 date of the charter. 
 
 A mere verbal bargain and sale of lands, 
 therefore, was sufficient to pass the title 
 both at law and at equity. 
 
 Article ^53 of the enactments of the 
 Council of Agsiniboia of the 11th April, 
 1862, did not affect the laws of property, 
 but apphed only to the regulation of the 
 proceedings of the Court. 
 
 An agreement for the transfer of land 
 assumed from the actions of the parties 
 apart from any direct evidence of its 
 existence. Sinclair v. Mulligan, 3 M. E. 
 481. 
 
 In appeal, 5 M. R. 19. See next case. 
 
 10. Laws in force in Assiniboia. 
 
 The laws of England as they existed at 
 the date of the charter of the Hudson's 
 Bay, Company, so far as appUcable, 
 formed the body of laws in force in this 
 Territory up to the Assiniboia Ordinance 
 of 11th April, 1862. 
 
 Per Tatlob,C.J. (Affirming Killam, J.) 
 The Ordinances of 11th April, 1862, and 
 7th January, 1864, were limited to regu- 
 lating the proceedings of the Court, and 
 did not introdiice the general laws of 
 England, (Dubttc, J., duhitante). (Keat- 
 ing V. Moises, 2 47, not followed.) 
 
 Per Taylor, C. J. Persons entitled, 
 under the H. B. Co. to estates less than 
 estates in fee simple, are entitled to have 
 such titles confirmed; but are not as of 
 right entitled to a grant from the Crown 
 of a larger estate. Sinclair v. Mvlligan, 
 5 M. R. 17. 
 
 11. Powers of FroTincial Legisla- 
 ture — Appellate jurisdiction of Supreme 
 Court of Canada — Manitoba Act, R.S.M., c. 
 110, s. 36, limiting right of appeal — Ultra 
 vires— British N'orth America Act, 1867, 
 s. lOl.^l 
 
 By s. 101 of the British North America 
 Act, 1867, the Parliament of Canada was 
 authorized to establish the Supreme 
 Court of Canada, the existing statute 
 being R.S.C. 1906, s. 139, ss. 35 and 36 
 of which define its appellate jurisdiction 
 in respect of any final judgment of the 
 highest Court of final resort now or 
 hereafter estabhshed in any Province of 
 Canada. 
 
 The Manitoba Mechanics' and Wage 
 Earners' Lien Act (R.S.M. 1902, c. 110, s: 
 36) applies to the suit utider appeal and 
 enacts that in suits relating to hens the 
 
 judgment of the Manitoba Court o^ 
 King's Bench shall be final and that no 
 appeal shall Ue therefrom: — 
 
 Held, that the Provincial Act could 
 not circumscribe the appellate jurisdiction 
 granted by the Dominion Act. Crovm 
 Grain Co. v. Day, [1908] A. C. 504. 
 
 12. The Liquor Act, 63 & 64 Vic, c. 
 
 22 (M.) — Prohibitory Liquor Legislation- 
 Powers of Provincial Legislatures — Ultra 
 vires — British North America Act, ss. 91 
 and 92. 
 
 Reference under chapter 28 of the 
 Revised Statutes of Manitoba by order 
 of the Lieutenant-Govemor-in-Council 
 for the opinion of the FuU Court on the 
 constitutionaMty of The Liquor Act, 
 chapter 22 of 63 and 64 Victoria (M.) 
 
 Held, that the Act as a whole was 
 beyond the powers of a Provincial Legis- 
 lature, as not falling within any of the 
 ' classes of subjects assigned to Provincial 
 Legislatures by section 92 of the B. N. A. 
 Act, 1867. 
 
 Such legislation cannot fall within the 
 class "Property and Civil.Rights," prop- 
 erty and civil rights being affected only 
 incidentally to the main purpose of the 
 statute. 
 
 It cannot fall within the class "Matters 
 of a merely local or private nature within 
 the Province," because of its directly 
 extending to and affecting interests much 
 wider than those of a merely local or 
 private nature. 
 
 Per Killam, C. J. — The evils at which 
 the Act is directed are intemperance and 
 its results. The remedy is to suppress 
 traffic in certain liquors within the 
 Province except for certain purposes and 
 thereby to restrict consumption. The 
 evils desired to be cured and the general 
 nature of the remedies are the same as in 
 The Canada Temperance Act, and upon 
 the authoritv of Russell v. The Queen, 
 (1882) 7 A. C. 829, such legislation does 
 not fall within the class "Property and 
 Civil Eights." 
 
 Per Killam, C. J. — Such legislation 
 by a Provincial Legislature, if permissible 
 at all, must be so as coming within the 
 class, "Matters of a merely local or private 
 nature in the Province." The subject 
 matter of this legislation may, to some 
 extent, come TSiithih the powers of the 
 Dbminion Parliament or of the Local 
 Legislatures. Whether a particular en- 
 actment on the subject so comes depends 
 on the character of the legislation. This 
 Act, as a whple, is not within the ' 
 
183 
 
 CONSTITUTIONAL LAW 
 
 184 
 
 lative powers of the Province, because it 
 is not confined to dealing with the subject 
 in its local application. 
 
 Attorney-Genetal for Ontario v. Attorney- 
 General for the Dominion, [1896] A. C. 
 348, commented on and distinguished. 
 Re The Liquor Act, 13 M. R. 239. 
 
 Reversed, [1902] A. C- 73. 
 
 13. Public Schools Act — Denomina- 
 tional schools — Right or privilege by prac- 
 tice — Powers of Provincial Legislature to 
 make laws relating to Education — ■ Ultra 
 vires. 
 
 The territory now constituting the 
 Province of Manitoba was admitted into 
 the Canadian Confederation by virtue of 
 The Manitoba Act, 33 Vic, c. 3, (D. 1870) 
 and an Order-in-CouncU issued in pur- 
 suance thereof. Prior to the passage of 
 said Act there were in tha territory a 
 number of effective schools for children. 
 These schools were all denominational 
 schools, some being controlled by the 
 Roijian CathoUc Church, and others by 
 various Protestant denominations. These 
 schools were supported by the various 
 churches, and by voluntary contributions. 
 There were no public schools in the sense 
 oi State schools, and no taxes were levied 
 to support such schools. 
 
 Section 22 of The Manitoba Act pro- 
 vides that "In and for the Province the 
 said Legislature may .exclusively make' 
 laws in relation to education, subject and 
 according to the following provisions: — 
 (1) Notjmig in any such law shall pre- 
 judicially affect any right- or privilege 
 with respect to denominational schools 
 which any class of persons have by law or 
 practice in the Province at the Union." 
 The corresponding provisions of the 
 British North America Act are identical, 
 except that the words "or practice" are 
 omitted from the sub-seclion. 
 
 The Legislature of the new Province in 
 the year 1871 estabUshed a system of 
 public schools, by which there was one 
 Board of Education divided into two 
 sections— a Protestant section and a 
 Roman Catholic section. The school 
 sections throughout the Province were 
 divided into Protestant and Catholic. 
 The Protestant schools were under the 
 control of the Protestant section of the 
 Board, and the Roman CathoUc schools 
 under the control of the Roman Cathohc 
 section of the Board. Taxes were levied 
 for the support "of the Protestant schools 
 on the property of Protestants alone, and 
 for the support of Roman Catholic schools 
 
 on the property of Roman CathoUcs 
 alone. The grant made annually by the 
 Legislature was apportioned between the 
 two classes of schools. This" system under 
 various statutes was relained until the 
 year J.890. In 1890 The Pubhc Schools 
 Act, 53 Vic, .c. 38 (M) was passed, by 
 which all previous statutes relating to 
 education were repealed and a system of 
 non-sectarian schools was estabUshed, for 
 the support of which aU ratepayers. Doth 
 Roman CathoUc and Protestant, were 
 alike taxed. Upon an appUcation to 
 quash two assessment by-laws of the City 
 of Winnipeg, passed in pursuance of The 
 PubUc Schools Act, on the ground that 
 "by the said by-laws the amounts to be 
 levied for school purposes for the Protes- 
 tant and CathoUc schools are united, and 
 one rate levied upon Protestants and 
 Roman CathoUcs aUke for the whole 
 sum," 
 
 Held, affirming the decision of Killam, 
 J., (DuBUC, J., dissenting), 
 
 (1) That The PubUc Schools Act was 
 intra vires of the Legislature of Manitoba. 
 
 (2) That the ParUament of Canada 
 intended, by inserting the words "or 
 practice" in the Manitoba Act, that what- 
 ever any class of persons was at the time 
 of the Union, with the assent of, or at 
 least without objection from, the other 
 members, of the community, in the habit 
 or custom of doing in reference to denom- 
 inational schools should continue, and 
 should not be affected by Provincial 
 legislation. 
 
 (3) That any right or privilege which 
 the Roman CathoUcs had at the time of 
 the Union, with respect to denominational 
 schools, was not taken away or affected 
 by the Act, and can be exercised as fully 
 now as before the Act. 
 
 (4) That the schools estabUshed by The 
 Public Schools Act are not denominational 
 schools, but in the strictest sense pubUc 
 non-sectarian schools. Ex parte Renaud, 
 1 Pugs. N. B. R. 273, discussed arid 
 approved. 
 
 Per DuBUC, J. Having regard to the 
 history of the controversy regarding 
 denominational schools in Canada and 
 the legislation relating thereto, the Par- 
 Uament of Canada, in inserting the words 
 "or practice" in sub-section 1 of section 
 22 of The Manitoba Act, had only one 
 manifest purpose, that is, to protect in 
 their right and privilege as to denomina- 
 tional schools the CathoUcs or Protestants 
 who might, in the future, find themselves 
 in the minority in this Province, and to 
 
185 
 
 CONSTITUTIONAL LAW. 
 
 186 
 
 give a legal itatus to such schools, and 
 therefore The Public Schools Act was 
 ultra vires of the Provincial Legislature, 
 and the by-laws should be quashed. 
 Barrett y.-- Winnipeg, 7 M. R. 273. 
 
 Reversed, 19 S. C. R. 374. 
 
 Restored, [1892] A. C. 445. 
 
 14. Public Schools Act — Denomina- 
 tional schools — Right of Church of England 
 thereto — Right or privilege by practice — 
 Powers of Manitoba Legislature to make 
 laws relating to Education — Ultra vires — 
 Waiver of public right. 
 
 The territory now constituting the 
 Province of Manitoba was admitted into 
 the Canadian Confederation by virtue of 
 the Manitoba Act 33 Vic, c. 3, (D. 1870) 
 and an Order-in-Council issued in pur- 
 suance thereof. Prior to. the passage of 
 said Act there were in the Territory a 
 number of effective schools for children. 
 These schools were all, denominational 
 schools, some being controlled by the 
 Church of England, some by the Roman 
 Catholic Church and others by the Pres- 
 byterian Church. These schools were not 
 public schools in the sense of State schools, 
 and no taxes were levied to support such 
 schools. Section 22 of the Manitoba Act 
 provides that, 
 
 "In and for the Province, the said 
 Legislature may exclusively make laws in 
 relation to education, subject and accord- 
 ing to the following provisions: 
 
 1. Nothing in any such law shall 
 prejudicially affect any right or privilege 
 with respect to denominational schools, 
 which any class of persons have by law or 
 practice in the Province at the Union. 
 
 2. An appeal shall lie to the Governor- 
 General in Council from any Act or 
 decision of the Legislature of the Province, 
 or of any Provincial authority, affecting 
 any right or privilege of the Protestant 
 or Roman Catholic minority of the Queen's 
 subjects in- relation to education." 
 
 The Legislature of the new Province in 
 the year 1871 estabhshed a system of 
 public schools by which there was one 
 Board of Education divided Lato two 
 sections, a Protestant section and a Roman 
 CathoUc section. The school sections 
 throughout the Province were divided 
 into , Protestant and Roman CathoUc. 
 The Protestant schools were under the 
 control of the Protestant section of the 
 Board, and the Roman Cathohc schools 
 under the control of the Roman CathoUc 
 section of the Board. Taxes were levied 
 for the support of the Protestant schools 
 
 on the jroperty of Protestants alone, and 
 for the support of Roman CathoUc schools 
 on the property of Roman CathoUcs alone. 
 
 The grant made annuaUy by the Legis- 
 lature was apportioned between the two 
 classes of schools. This system under 
 various statutes was retained until the 
 year 1890. In 1890 The PubUc Schools 
 Act, 53 Vic, c. 38 (M.) was passed by 
 which all previous statutes relating to 
 education were repealed and a system of 
 non-sectarian schools was established, for 
 the support of which aU ratepayers were 
 aUke taxed. 
 
 Upon an appUcation by a ratepayer 
 who .was a member of the Church of 
 England, to quash a by-law of the City 
 of Winnipeg levying a rate for schools 
 upon aU religious denominations aUke, 
 
 Held, that the members of the Churcn 
 of England are a class of persons who had 
 at the time of the union of Manitoba with 
 Canada a right or privilege with respect 
 to denominational schools by law or 
 practice which has been prejudicially 
 affected by The PubUc Schools Act and 
 that they have equal rights to such 
 schools with Roman CathoUcs. 
 
 Held, also, that the fact of the appUcant 
 having acquiesced for a number of years 
 in a system of schools by which he with 
 other members of the Church of England 
 was taxed for schools common to aU 
 Protestants did not operate as a waiver 
 of this right. 
 
 Held, also, that The PubUc Schools 
 Act is ultra vires. 
 
 Barrett v. The City of Winnipeg, 19 S. C. 
 R. 374, reversing the decision of this Court 
 reported at 7 M. R. 273, followed. Logan 
 V. Winnipeg, 8 M. R. 3. 
 
 Reversed, [1892] A. C. 445. 
 
 15. Act authorizing construction of 
 railway crossing over Dominion rail- 
 way — Manitoba Statutes, 1888; c. 5. 
 
 Chapter 5 of the Statutes of Manitoba, 
 1888, authorizing the Railway Commis- 
 sioner of that Province to construct a 
 railway known as the Portage Extension 
 of the Red River Valley Railway from 
 Winnipeg to Portage la Prairie, is intra 
 vires of the Provincial Legislature and 
 vaUd and effectual so as to confer authority 
 on the said Railway Commissioner to 
 construct such a railway across the Une 
 of the Canadian Pacific Railway, the 
 Railway Committee of the Privy Council 
 for Canada first approving of the mode 
 and place of crossing and giving their 
 directions as to the matters mentioned in 
 
187 
 
 CONSTITUTIONAL LAW. 
 
 188 
 
 sections 174, 175 and 176 of the Dominion 
 Railway Act, 51 Vic, c. 29. 
 
 Decision of the Supreme Court of 
 Canada, 1889. In re Province of Mani- 
 toba and Canadian Pacific Ry. Co., 9 C. L. 
 T. Ooc. N.'126. 
 
 16. Powers of Provincial Legisla- 
 ture— B.Ar .A. Act, 1867, ss. 91 and 92— 
 Hhops Regulation Act, R. S. M. 1902, c. 
 156— Municipal Act, R. S. M. 1902, c. 
 116, s. 527— Winnipeg Charter, 1902, c. 
 77, s. 931 — Ultra vires — By-law requiring 
 closing of , shops at certain hours — Un- 
 reasonabteness and uncertainty as grounds 
 of objection to by-law. 
 
 Rule nisi to quash the conviction of 
 defendant for breach of a by-law of the 
 City of Winnipeg requiring all shops with 
 certain exceptions to be closed after six 
 o'clock p.m., except on certain day^s. 
 The by-law in question was passed in 
 July, 1900, under the Shops Regulation 
 Act, R. S. M. (1892), c. 140, which is now 
 chapter 156 of the R. S. M. 1902, which 
 came into force on 6th March, 1903. In 
 March, 1902, The Winnipeg Charter, 
 being chapter 77 of the Statutes of that 
 year, came into fprce and the new Munici- 
 pal Act, c. 116 of the R. S. M. 1902, 
 eontains a clause, (2a), providing that the 
 City of Winnipeg is not included in the 
 expression "Municipality," when the 
 same occurs in this Act. 
 
 Section 15 of The Shops Regulation 
 Act provides that any by-law passed by 
 a municipal council under the Act shall 
 be deemed to have been passed under and 
 by authority of the Municipal Act and as 
 if the preceding sections of the Act had 
 formed part of the Municipal Act, and 
 that the preceding sections of the Act and 
 the Municipal Act should be read and 
 construed together as if forming one Act. 
 
 Section 931 of the Winnipeg Charter 
 provides that aU inconsistent Acts are 
 repealed in so far as they affect the City 
 of Winnipeg, but all rights, powers and 
 privileges held by the City, and not 
 specifically abrogated by the Act, shall 
 remain in fuU force, virtue and effect in 
 the same manner as if the Act had not 
 been passed; and section 627 of the 
 Municipal Act, R. S. M. 1902, c. 116, 
 provides that the City of Winnipeg shall 
 ret^n and enjoy all rights, powers and 
 privileges which were preserved to it by 
 section 931 of the Charter. 
 
 It was contended on behalf of the de- 
 fendant that the present Shops Regulation 
 Act does not apply to the City of Winni- 
 
 peg by reason of its being incorporated as 
 above in the present Municipal Act, 
 which Act is expressly excluded by section 
 2 (a) from operation in Winnipeg. 
 
 Held, without deciding whether the 
 present Shops Regulation Act applies to 
 the City or not, that the joint effect of 
 section 931 of The Winnipeg Charter 
 and section 527 of The Municipal Act, 
 and of sections 14 and 16 of The Inter- 
 pretation Act, R. S. M. 1902, c. 89, is to 
 retain and keep -in force the by-law in 
 question. 
 
 Held, also, that, as the by-law in 
 question was in strict accordance with the 
 powers conferred by the Legislature in 
 the Act under which it was passed, its 
 provisions 'could not be held to be un- 
 reasonable, uncertain or oppressive, so as 
 to render it invalid or unenforceable. 
 Bryden v. Union Colliery Co., [1899] A. C . 
 580; BeBoylan, 15 O. R. 13, and Simmons 
 V. Mailings, 13 T. L. R. 447, followed. 
 
 Held, also, that the provisions of the 
 Shops Regulation Act are intra vires of 
 the Provincial Legislature, under s. 92 of 
 the British North America Act, 1867, as 
 deaUng with a matter of a merely local 
 and private nature in the Province, and 
 not interfering with the Regulation of 
 Trade and Commerce, assigned to the 
 Dominion ParMament by section 91, to as 
 great an extent as the legislation in 
 question in Attorney (fren. of Ontario v.> 
 Attorney Gen. of Canada, (1896) A. C. 
 348,' and Attorney Gen. of Manitoba v. 
 Manitoba License Holders' Association, 
 [1902] A. C. 77. Stark v. Schuster, 14 M. 
 R. 672. 
 
 17. Act authorizing unequal taxa- 
 tion — Exceptional tax — Resident and non- 
 resident land owners — Exemptions — Ultra 
 vires. 
 
 The Hudson's Bay Co. was incorpor- 
 ated by Royal Charter, and had its head 
 oflBce at London, England, but had in 
 Rupert's Land and the North-West 
 Territory many trading posts. One of 
 the conditions of the surrender of its 
 rights to the«Crown, upon the formation 
 of the Dominion of Canada, contained 
 the following words: "No exceptional 
 tax is to be placed on the Company's 
 land, traide or servants." This con/lition 
 was confirmed in an Imperial Order-in- 
 Council, which had the force of an Imperial 
 Act by The British North America Act, 
 s. 146. By 41 Vic, c 13 (Man.), a tax 
 of one cent per acre was imposed on aU 
 
189 
 
 CONSTRUCTION OF CONTRACT. 
 
 190 
 
 lands of residents of the Province, and a 
 tax of five cents per acre on the lands of 
 all non-residents. By the 30th section 
 "non-resident" was defined to mean any 
 person or corporation not residing per- 
 Tnanently, or not having his or their chief 
 place of DusiBess, in the Province. 
 
 Held, that the 41 Vic, c. 13, was ultra 
 vires, (1) because it transgressed the funda- 
 mental principle of taxation by taxing 
 unequally the lands of non-resident and 
 resident owners; (2) because the tax upon 
 the Company's land was an exceptional 
 tax within the meaning of the above 
 condition of surrender. 
 
 Semble, that, but for the 30th section, 
 the Company might have been held to 
 have a double domicile and to be a resident 
 within the meaning of the Act; but- — 
 
 Held, that it was plainly a non-resident 
 within the Act by virtue of the 30th 
 section. 
 
 Semble, that the imposition of a 
 specific tax per acre on aU lands, instead 
 of a rate upon their value, was unobjec- 
 tionable, considering the state of the 
 Province when the Act was passed, even 
 though owners of improved lands thus 
 obtained a sU^t advantage. 
 
 Held, that the exemption from taxation 
 of pubUc lands held in trust for the Crown 
 was unobjectionable; but that an exemp- 
 tion of 640 acres of the lands of every 
 resident owner was repugnant to the 
 principles of taxation. Hudson's Bay Co. 
 V. Attorney-General, T. W., 209. 
 
 See C. P. R. Lands, 1, 2, 3. 
 
 — Criminal Law, XIV, 4. 
 — ■ Crown Lands, 2. 
 
 — Foreign Court, 2. 
 
 — Injunction, I, 2. 
 — - Law Stamps. 
 
 — Manitoba EvmBNCE Act. 
 
 — • Prohibition of Sale of Liquor. 
 
 — Winding-up, I, 3. 
 
 CONSTRUCTION OF STATUTES. 
 
 See Statutes, Construction of. 
 
 CONSTRUCTION OF CONTRACT. 
 
 See Married "Woman, 2. 
 
 — Mortgagor and Mortgagee, IV, 1. 
 
 — Principal and Agent, II, H. 
 — ■ Principal and Surety, 3. 
 
 — Sale of Goods, V, 1. 
 
 — Sale of Land fob Taxes, X, 2. 
 
 — • Vendor and Purchaser, II, 1, 4 
 VII, 5. 
 
 CONSTRUCTIVE NOTICE 
 
 Knowledge of solicitor when im- 
 puted to client — Priority df equitable 
 claims — Loss of priority by negligence. 
 
 The knowledge of a solicitor that a 
 vendor of land holds it only as trustee 
 will not be imputed to his chent the pur- 
 chaser merely because the client employs 
 a clerk in the solicitor's oflace to prepare 
 the necessary transfer and search the 
 title, when the solicitor is not actually 
 informed of the transaction and the 
 clerk knows nothing of the trust. 
 
 Brovm v. Sweet, (188Q) 7 A. R. 725, 
 followed. 
 
 The plaintiffs purchased a lot of land 
 from the City of Winnipeg and took the 
 agreement of sale in Valle's name. 
 
 Held, that it was gross negligence in 
 them not to file a caveat in the Land 
 Titles office or notify the City that Valle 
 was a trustee for them, and that bjr such 
 negligence they had lost their priority as 
 against a purchaser who had bought 
 from Valle without notice of the trust. 
 N. W. Construction Co. v. Valle, 16 M. R. 
 201. 
 
 See Breach of Trust. 
 
 — Fraudulent Preference, III, 1, 6. 
 — ■ Mortgagor and Mortgagee, V, 3. 
 — ■ Municipality, IV, 7. 
 
 — ■ Partnership, 10. 
 
 — Principal and Agent, V. 2. 
 — ■ Principal and Surety, 4. 
 
 — Registration op Deed. 
 
 — ■ Vendor and Purchaser, VII, 2. 
 
 — Way of Necessity. 
 
 CONTAGIOUS DISEASE. 
 
 See Sale op Goods, VI, 1. 
 
 CONTEMPT OF COURT 
 
 1. Chief Justice sitting in County 
 Court — Persona designata. 
 
 By 42 Vic, c. 1, s. 4 (Man.), it was 
 enacted that the County Courts should be 
 held by the Chief Justice, or by one of 
 
191 
 
 CONTEMPT OF COURT. 
 
 192^ 
 
 the Puisne Judges of the Court of Queen's 
 Bench, until otherwise provided by law. 
 The Chief Justice, sitting in a County 
 Court pursuant to this enactment, rend- 
 ered a decision respecting which the 
 defendant published a hbellous article in 
 his newspaper. 
 
 Held, that- the Chief Justice^ when 
 sitting in the County Court, was perform- 
 ing a judicial act incident to the office of 
 Chief Justice, and was not merely a 
 Judge of the County Court, and that the 
 defendant Was liable to be committed for 
 contempt of Court for his libellous pub- 
 lication. 
 
 Remarks on the extent to which judicial 
 acts may be criticized. Reg. v. Rowe, 
 T. W., 309. 
 
 2. Injunction, disobedience of — No- 
 tice of injunction by telephone and telegraph 
 — -Agents of party enjoined — Ldability of 
 company for contempt committed by its 
 officer. 
 
 The defendant, as returning officer at 
 sin election of a member of the Provincial 
 Legislature, had deposited his return with 
 the Canadian Northern Express Co. at 
 Neepawa, for transmission to the Clerk 
 of the Executive Council at Winnipeg. 
 Later in the same day a Judge of this 
 Court made an interim injunction order 
 restraining the defendant, his servapts 
 and agents from making the return. The 
 defendant was served with the order in 
 sufficient time before the actual delivery 
 to enable him to instruct the Express 
 Company by telegraph or telephone not 
 to deliver the return, but made no effort 
 to do so, saying that he supposed he could 
 not stop the deUvery. 
 
 Held, that the defendant was bound 
 to the utmost diligence in carrying out 
 the order and was" guilty of contempt of 
 court, for which he was ordered to pay 
 the costs of the motion. 
 
 Harding v. Tingley, (1864) 12 W. R. 
 684, followed. 
 
 The officer of the Express Company 
 whose duty it was to attend to the delivery 
 of parcels was notified of the issue of the 
 injupction both by telephone and tele- 
 graph the day it was issued, but never- 
 theless delivered the return the next 
 morning shortly before the~ order itself 
 was served upon him. 
 
 Held, that the Express Company was 
 guilty of a serious contempt of court and 
 could not excuse itself by showing that 
 
 the disobedience was an act of its officer 
 done without instructions or even in 
 breach of duty. 
 
 Stancomb v. Trowbridge Urban Council, 
 [1910] 2 Ch. 190, and Rantzen v. Roths- 
 childs, (1865) 13 L.T. 399, foUowed. 
 Davis V. Barlow, 21 M. R. 265. 
 
 3. Publication of articles reflecting 
 on decision and conduct of Revising 
 Officer under Election Act. 
 
 The publication of newspaper articles 
 reflecting on the conduct of a Revising 
 Officer acting under the Election Act in 
 such a way that they might have been 
 made" the subject of proceedings for libel, 
 but not in the circumstances calculated to 
 obstruct or interfere with the course of 
 jus,tice or the due administration of the 
 law, does not constitute a contempt of 
 court punishable by summary proceedings. 
 
 Skipworth's Case, (1873) L. R. 9 Q. B. 
 at p. 233; Hunt v. Clarke, (1889) 58 L. J. 
 Q. B. 490, and Queen v. Payne, [1896] 1 
 Q. B. 577, followed. Rex v. Bonnar, No. 
 2, 14 M. R. 481. 
 
 4. Refusal of witness to answer 
 question on preliminary investigation 
 before magistrate — Materiality of ques- 
 tion — Committal to gaol for refusal to 
 answer — Habeas Corpus — Criminal Code, 
 s. 585. 
 
 1. Under section 585 of the Criminal 
 Code a magistrate would not be justified 
 in committing a witness to gaol for refusal 
 to answer a question upless it were in 
 some way relevant to the issue, as that 
 section only applies when the refusal is 
 made "without offering any ju«t excuse," 
 and the form of the warrant of commit- 
 ment referred to in that section contains 
 the words, "now refuses toS answer certain 
 questions concerning the premises now 
 put to him." 
 
 2. If B. is charged with making an 
 alteration of a document' received from 
 A., the question put to A., on his examin- 
 ation as a witness on the trial of B.^as to 
 the person from whom he, A.,had received 
 this document, would not be material if 
 the document is produced; but, if it can- 
 not be found, proof of its contents would 
 have to be given, and that might involve, 
 as a part of the claim, information as to 
 the source from which A. had obtained 
 the document, and it could not be held 
 that the question was not in some way 
 material. Re Ayotte, 15 M. R. 156. 
 
193 
 
 CONTINGENCY. 
 
 194 
 
 6. Release on payment of costs — 
 
 Purging contempt. 
 
 A'prisoner committed to gaol' for con- 
 tempt of court in not producing a book 
 which, he had been ordered to produce 
 cannot purge his contempt by showing 
 either that the book has been burnt by 
 some other person without his knowledge 
 or connivance, or that he left it in a 
 certain place and was afterwards unable 
 to find or trace it. 
 
 Under such circumstances a prisoner 
 should not be released unless he pays aU 
 the costs occasioned by his misconduct in 
 connection with the lost book, although 
 an appUcation for release without such 
 payment might be entertained if it were 
 shown that, by reason of poverty, such 
 costs could not be paid. 
 
 In re M., (1877) 46 L.J. Ch. 24, foUowed. 
 
 Monkman v. Sinnott, (1884) 3 M.E. 
 170, distinguished. Cotter v. Osborne, 17 
 M. R. 248. 
 
 See Examination of Judgment Debtor, 
 - 1. 
 
 — Pabliamentary Elections, 3. 
 
 — Practice, XXVIII, 2. 
 
 — Solicitor, 8. 
 
 CONTINGENCY. 
 
 See Municipality, I, 5. 
 
 CONTINUING CAUSE OF ACTION. 
 
 See Municipality, IV, 1. 
 
 
 CONTRACT. 
 
 I. 
 
 Acceptance of Offer 
 
 II. 
 
 Cancellation. 
 
 III. 
 
 Conditional Sale. 
 
 IV. 
 
 Consideration. 
 
 V. 
 
 Construction of. 
 
 VI. 
 
 Evidence. 
 
 VII. 
 
 Misrepresentation. 
 
 VIII. 
 
 Perfohmance of. 
 
 IX. 
 
 Rectification of. 
 
 X. 
 
 Repudiation of. 
 
 XI. 
 
 Rescission of. 
 
 XII.' 
 
 Sale of Goods. 
 
 xiii. 
 
 Uncertainty of Terms. 
 
 XIV. 
 
 Warranty. 
 
 XV. 
 
 Miscellaneous Cases. 
 
 I. Acceptance of Offer. 
 
 1. Option to purchase land—Specific 
 performance. 
 
 If the holder of an option to purchase 
 land, instead of accepting the offer him- 
 self within the time limited, tenders 
 another person as purchaser and asks the 
 vendor to sign a contract of sale to such 
 other person, the vendor is not /bound to 
 sell to such other person, and the holder 
 of the option, if he has delayed accepting 
 it on his own behalf until after the time 
 limited, cannot have specific performance 
 against the vendor. Vanderlip v. Peter- 
 son, 16 M. R. 341. 
 
 2., Reasonable time — Sale of binder — 
 Acceptance. 
 
 In October, 1889, the defendant gave 
 to plaintiffs' agent an order for a binder 
 for which he agreed to pay $190 by two 
 promissory notes. The order contained 
 a proviso as follows "This order is not 
 binding on the Patterson & Bro. Co., 
 (Limited) until received and ratified by 
 them at Winnipeg." The plaintiffs en- 
 tered the order in their books at Winnipeg 
 as being accepted but did not communis 
 cate their acceptance to the defendant 
 until August, 1890, when they wrote him 
 that a binder was ready for him. Before 
 receiving ^this letter the defendant had 
 bought another binder and refused to 
 accept one from plaintiffs or to give the 
 notes. In an action for damages for 
 non-acceptance. 
 
 Held, that the defendant was not liable 
 as the plaintiffs did not communicate 
 their acceptance of the order to him 
 within a reasonable time, and he was 
 entitled to assume that they did not 
 intend to accept. Patterson v. Delorme, 
 7 M. R. 594. 
 
 II. Cancellation. 
 
 1. By new verbal agreement — Statute 
 of Frauds. 
 
 1. If the parties to a written contract 
 enter verbally into a new agreement to be 
 ■substituted for it, such new agreement, 
 although, by reason of the Statute of 
 Frauds, it cannot be enforced, will have 
 the effect of discharging and cancelling 
 the written contract. 
 
 Goss V. Lord Nugent, (1833) 5 B. & Ad. 
 65; Morgan v. Bain, (1874) L.'R. 10 C. P. 
 15, and Ogle v. Lmd Vane, (1868) L. R. 
 3 Q. B. 272, followed. 
 
195 
 
 CONTRACT. 
 
 196 
 
 , 2. In such case* neither party can en- 
 force the new agreement or recover 
 damages as for a breach of the written 
 contract. 
 
 3. Any money or other consideration, 
 however, that may have been paid or 
 given under the substituted agreement by 
 one of the parties to the othesr may be 
 recovered back or its value sued for by 
 such party. Clements v. FairchUd Co., 15 
 M. R. 478. 
 
 2. Damages for breach of contract — 
 
 Agreement for sale of land. 
 
 1. A person who goes into possession of 
 land under an agreement of purchase by 
 instalments is liable for damages for 
 breach of contract if he fails to make the 
 payments stipulated for, even when the 
 vendor has cancelled the agreement for 
 such default in pursuance of one of its 
 provisions, but the vendor could bring no 
 action upon the covenant for payment 
 after such cancellation. 
 
 Fraser v. Ryan, (1987) 24- A. R. 444, 
 and Icely v. Grew, (1836) 6 N. & M. 467, 
 followed. 
 
 2. In such a case the damages allowed 
 should include (1) the value of any crop 
 taken off the land by the purchaser after 
 the cancellation, and (2) the amount of 
 any diminution of the value of the land 
 for which the defendant is responsible, as 
 for example, the cost of summer fallowing 
 again a number of acres which were well 
 summer fallowed when the defendant 
 took possession and of which work he 
 had the benefit. Harvey v. Wiens, 16 
 M. R. 230. 
 
 III. Conditional Sale. 
 
 1. Rescission of contract— ^aperese 
 
 of repairs to engine re-taken on default in 
 ■payment — Expense of resuming possession 
 — Warranty. 
 
 Defendants in March, 1896, gave a 
 written order to plaintiffs for a threshing 
 engine and separator which were.dehvered 
 in the following August'. The order pro- 
 vided for a conditional sale of the machines, 
 for the sum of $2,875, for which, on the 
 usual terms, promissory notes payable at 
 intervals were to be given and that the 
 property in them should remain in the 
 plaintiffs until full payment of the price 
 agreed on, and contained the following 
 warranty: "The above machinery is 
 warranted, with proper usage, to do as 
 good work and to be of as good materials 
 and as durable, with proper care, as any 
 
 of the same class made in Canada 
 
 If the machinery cannot be made to fill 
 the warranty, it is to be immedfately 
 returned by the purchaser to the place 
 where received, free of chirge, and another 
 substituted therefor which shall fill the 
 warranty or the money and notes return- 
 ed. Continued possession shall be evidence 
 of satisfaction." 
 
 The agreement further provided that, 
 on default of payment, the plaintiffs 
 might resume possession of the goods sold 
 atid sell the same and apply the proceeds, 
 after paying the expenses of taking 
 possession and of such sale, towards pay- 
 ment of the amount remaining unpaid 
 and proceed for the balance by suit or 
 otherwise. 
 
 There were some weak or defective 
 parts in tjie machines and plaintiffs, on 
 being notified, sent experts to remedy the 
 defects. They put i^e mach^e in some- 
 wjh,at better shape, but delays were in- 
 curred and defendants claimed that the 
 machines never worked properly. De- 
 fendants, however, used the machines 
 during the threshing seasons of 1896 and 
 1897 and for part of the' season of 1898, 
 when, on one of the pieces breaking, the 
 machine was left in a field where it re- 
 mained unprotected until June, 1900. 
 They had paid about $1,200 of the pur- 
 chase" money when plaintiffs resumed 
 possession of the machines at a cost of 
 $40, made repairs to them at a cost of 
 $465.35, and then entered into a condi- 
 tional re-sale of them to a Mr. Weaver 
 for the sum of $2,000, no part of which 
 had been received by the plaintiffs at the 
 time of bringing the present action to 
 recover the ainount still due by defendants 
 on their original purchase, which was 
 $1,677.09. 
 
 Held, (1) That the defendants, having 
 failed to return the machinery after trial, 
 having used it during three seasons and 
 paid nearly $1,200 on account, were 
 barred, under the terms of the agreement, 
 from claiming that the machinery was not 
 good and that payment therefor should 
 not be enforced. 
 
 (2) That the agreement was not re- 
 scinded by plaintiffs re-taking possession 
 and re-selling. 
 
 Satoyer v. Pringle, (1891) 18 A. R. 218, 
 distinguished. 
 
 Watson Manufacturing Co. v. Sample, 
 (1899) 12 M. R. 3(73, followed. 
 
 (3) The plaintiffs had a right, under the 
 circumstances, to charge the cost of the 
 repairs and of resuming possession against 
 
197 
 
 CONTRACT 
 
 198 
 
 the proceeds of the re-sale, as it was shown 
 hat such repairs had enhanced the value 
 of the machinery, in the state in which it 
 was when the plaintiffs re-took it, by 
 more than their cost. 
 
 A vendor re-taking possession under 
 the terms of such an agreement and in 
 circumstances like those of this case may 
 be deemed in the position of a mortgagee 
 in possession, and such cases as Shepard v 
 Jones, (1882) 21 Ch. D. 469, and Hender- 
 son v. Astwood, [1894] A. C. 150, would 
 apply. 
 
 (4) That the defendants were not 
 entitled to be credited in this action with 
 anything on account of the proceeds of 
 the conditional sale to Weaver, as nothing 
 had yet been received by the plaintiffs on 
 that account. Quare, whether, if the 
 sale to Weaver had been an absolute sale 
 on credit, the defendants would not have 
 been so entitled? 
 
 If the sale to Weaver should be carried 
 out and the money paid to the plaintiffs, 
 defendants would then have their recourse 
 for the amount coming to them out of 
 the proceeds. 
 
 (5) The plaintiffs were not entitled to 
 charge the cpst of . the repairs to the 
 machinery as against the defendants in this 
 action or to deduct the amount from cer- 
 tain sums they had collected in cash on 
 collaterals and by the sale of certain parts 
 of the machinery, which sums must be 
 credited in this action, and must look to 
 the proceeds of the sale of the remainder 
 of the machinery to recoup themselves 
 for the repairs, but they were entitled to 
 deduct from such credit the amount ex- 
 pended by them in re-taking possession 
 of the machinery under the terms of the 
 contract. Abell Engine and Machine 
 Works Co. V. McGvdre, 13 M. R. 454. 
 
 2. Vendor re-taking possession. 
 
 The defendants signed a contract under 
 seal, agreeing to purchase from the 
 plaintiffs certain maqhinery on credit, on 
 the terms that the property in the ma- 
 chines should not pass from the vendors 
 to the proposed purchasers until full pay- 
 ment of the price and any obligation 
 given therefor, and the plaintiffs accepted 
 the order and furnished the machinery as 
 agreed. The defendants after a trial of 
 the machinery rejected it and refused to 
 give the promissory uotes provided for 
 in the contract. The plaintiffs then re- 
 sumed possession of and sold the machin- 
 ery and credited the proceeds on the 
 original purchase money. They then 
 
 filed a bill to realize the balance of the 
 purchase money out of the land described 
 in the order upon which the defendants 
 had given a charge for the indebtedness. 
 The judge who heard the cause found on 
 the facts that the defendants were not 
 warranted in rejecting the machinery. 
 
 Held, that the plaintiffs had themselves 
 rescinded the contract, and that their 
 remedy was limited to a claim for damages 
 for refusing to accept and pay for the 
 machinery and that they could not sue 
 for the price of the same, whether they 
 kept or sold the machinery, and that they 
 had no longer any lien or charge on de- 
 fendant's lands for their claim. McLean 
 V. Dunn, 4 Bing. 772, distinguished; 
 Savryer v. Pringle, 20 O.R. Ill, 18 A. R. 
 218, followed. Sawyer v. Baskeruille, 10 
 M. R. 652. 
 
 IV. Consideration. 
 
 1. Agreement in restraint of trade. 
 
 The defendant, while in the employ- 
 ment of the plaintiffs at a monthly salary, 
 signed, at the request of the plaintiffs, an 
 agreement not under seal that he would 
 not, within one year after the termination 
 of his employment with the Company, 
 engage or be interested in any business or 
 work within Canada or Great Britain in 
 competition with the business of the 
 Company. The defendant expected to 
 be appointed manager of the business at 
 Winnipeg with an increase 'of salary and 
 had reason to believe that a refusal to 
 sign the agreement would be followed by 
 dismissal, but no promises were made to 
 him prior to signing nor was he told that 
 he would be dismissed if he would not 
 sign. It was, however, a condition that 
 he ^ should sign the agreement before 
 having placed in his hands a new price 
 book issued for use in the plaintiffs' busi- 
 ness. He was made temporary manager 
 at Winnipeg shortly after signing, but 
 without any increase of salary or any 
 terms or conditions.. 
 
 Held, that there was no sufficient 
 consideration for the signing of the agree- 
 ment by defendant and that it was not 
 binding upon him. Copeland-Chatlerson 
 Co. V. Hickok, 16 M. R. 610. 
 
 2. Novation — Agreement with A to pay 
 A's debt to B — Equitable assignment of 
 chose in action. 
 
 The defendant's wife having sued him 
 for alimony, they met by arrangement in 
 the office of the wife's soUcitor and in his 
 
199 
 
 CONTRACT. 
 
 200 
 
 presence agreed to become reconciled and 
 to resume cohabitation and to settle the 
 suit, and the defendant, as a part of the 
 settlement, agreed to pay directly to the 
 wife's solicitor her costs of the action, 
 which were than fixed at the sum of $50. 
 This action was brought by the solicitor 
 in a county court to enforce payment of 
 that sum. 
 
 The particulars of thie claim were 
 stated thus: "The plaintiffs claim from 
 the defendant the sum of $50, being the 
 amount of the costs of suit of defendant's 
 wife against the defendant which the 
 defendant agreed to pay as one of the 
 terms of settlement between the said 
 parties." 
 
 Held, that the plaintiffs could not re- 
 cover in an action in that form, as the 
 plaintiffs in such an action would be 
 strangers to~ the contract: Gandy v. Gandy, 
 (1885) 30 Ch. D. 57, Leake on Contracts, p. 
 292; neither could the j^laintiffs sue as 
 cestuis que trustent claiming a beneficial 
 interest under the agreement, for the 
 evidence did not show that the $50 was 
 to be paid to the defendant's wife as 
 trustee for the plaintiffs: In re Empress 
 Engineering Co., (1880) 16 Ch. D. 125; 
 but that there was, under the circum- 
 stances, an equitable assignment of the 
 wife's claim for costs to the sohcitors, 
 which was assented to by the three parties 
 all present together and which enabled 
 the plaintiffs, by an amendment of then- 
 particulars of claim, to maintain an action 
 in their own name for the costs in question. 
 Andrews v. Moodie, 17 M. R. i; 
 
 V. Construction op. 
 
 1. Agreement by agent, not to sell, 
 canvass for, or be interested in the 
 sale of, goods of others in competition 
 with the principal. 
 
 An agreement by an agent with his 
 principal not to sell, canvass Tor, or be 
 interested in the sale of, goods of other 
 persons in competition with the principal 
 is not violated by entering into an agree- 
 ment with a rival manufacturer accepting 
 an agency for the latter, until the agent 
 has actually sold, or canvassed for, or 
 been interested in the sale of, some of the 
 goods of the latter. Oraham v. J. I. Case 
 Threshing Machine Co., (9 M. R. 27. 
 
 2. Cancellation of permit if land 
 sold or leased — Subsequent lease of part 
 of land covered by permit. 
 
 The defendant paid for a permit to cut 
 hay in 1908, on a parcel of land, across 
 which was printed the following: — "This 
 permit becomes cancelled by the sale or 
 lease of the land." Subsequently the 
 plaintiff obtained a lease of half the same 
 parcel. 
 
 Held, that the defendant's permit 
 gave him an actual interest in the land, 
 that the provision for cancellation should 
 be most strictly construed and that, as 
 the land had not been leased but only a 
 part of it, the permit was not cancelled, 
 and the defendant had a right to the hay 
 cut in that year on the whole of the land 
 including some that had been cut by the 
 plaintiff under his lease. Decode v. 
 Barrager, 19 M. R. 34. 
 
 SeeSharpe v. Dundas, 21 M. R. 194. 
 
 3. Condition requiring production 
 of purchaser willing to sign a written 
 agreement to buy land — Commission 
 on sale of land — Refusal of owner to sell. 
 
 The defendant agreed for a good con- 
 sideration that, if the plaintiff would, 
 within a time fixed, produce to him a 
 bona fidi purchaser .willing to enter into 
 an agreement to purchase certain lands at 
 named prices and ready and willing to 
 pay one quarter of the purchase money in 
 cash and who had signed an offer in 
 writing therefor, then he, the defendant, 
 would pay to the plaintiff twenty-five 
 per cent, commission on such purchase 
 price, in case the defendant refused to 
 make the sale. 
 
 On the 13th of March an^l witnin the 
 limited time an agent of the plaintiff re- 
 ceived from A. M. Lewis an offer in 
 writing to purchase the lands in question 
 on the terms and at the prices mentioned 
 in the defendant's agreement, coupled 
 however with the statement that, if not 
 accepted before ten o'clock A. M. on the 
 16th of March, the offer would be with- 
 drawn. The agent at once wrote to the 
 plaintiff infonping him of the offer and 
 its condition and urging haste in com- 
 municating it to the defendant, but with- 
 out disclosing the name of the purchaser. 
 The plaintiff, who lived in Winnipeg, 
 received the letter on the morning of the 
 14th, and made every effort by telegram 
 and letter to induce the defendant, who 
 lived in Gretna, to accept the offer, 
 infonning him fully of the terms of the 
 offer and. its condition, but not giving the 
 name of the purchaser, which the pla-ntiff 
 did not then know himself. 
 
201 
 
 CONTRACT. 
 
 202 
 
 Defendant wrote bj^ first mail to his 
 solicitor in Winnipeg instructing him to 
 see the plaintiEE and make inquiries, and 
 communicate the result by telephpne in 
 the evening of the 15th. The soUcitor 
 met the plaintiff in the afternoon of the 
 15th and ascertained all particulars, in- 
 cluding the name of the purchaser, and 
 spoke to the defendant over the long 
 distance telephone between six and seven 
 o'clock in the evening, when he received 
 instructions to accept the offer; but 
 through some mischance the plaintiff was 
 not informed of this in time to allow him 
 to notify Mr. Lewis of the acceptance 
 before ten o'clock on the 16th and the 
 offer was withdrawn at that hour. 
 
 Plaintiff sued for the twenty-five per 
 cent, commission, contending that he had 
 produced a purchaser in accordance with 
 the agreement, and that, under the cir- 
 cumstances, it should be held that defend- 
 ant had refused to make the sale. 
 
 Held, that plaintiff could not recover. 
 
 Per Howell, C. J. The plaintiff did not 
 produce a bona fide purchaser willing to 
 enter into such an agreement as was 
 referred to. An offer, which had to be 
 accepted in less than' two days after 
 defendant received it, was not an offer 
 contemplated by the agreement. 
 • Per Phippen, J. A. The plaintiff had 
 to produce a purchaser, and neither his 
 telegram nor his letter did this. The 
 earliest production was when the name 
 was mentioned 'to defendant's solicitor, 
 and the solicitor was entitled to a reason- 
 able time to communicate the name to 
 his client. Rogers v. Braun, 16 M. R. 
 580. 
 
 4. ""Deemed to be", meaning of — 
 
 Sale and transfer of right to cut timber — • 
 Priority as between unpaid vendor and 
 bank holding security from ■purchaser on 
 logs cut — Bills of Sale and Chattel Mortgage 
 Act — Bank Act, ss. 88, 89 — Vendor's lien 
 on goods — Cancellation of contract, effect of. 
 By the agreement in question, the 
 plaintiffs sold to one McCutcheon their 
 interest in a certain timber berth for 
 $19,000 payable by instalments. It made 
 use of language ioaplying the transfer of 
 the property in the logs as soon as cut, 
 out contaiaed this proviso, "That in each 
 and every year during the currency of 
 this agreement all logs, lumber, laths, 
 timber, &c, shall be deemed to be the 
 property of the (vendors) unless and 
 until the (purchaser) shall have paid all 
 arrears of principal and interest which may 
 
 be due hereunder and the (purchaser) 
 hereby covenants with the (vendors) not 
 to seU, assign or transfer any such logs, 
 lumber, timber &c., until all arrears due 
 as of such date are fuUy paid and satis- 
 fied." 
 
 Pursuant to another clause in the agree- 
 ment, the plaiatiffs on 4th February, 
 1908, gave notice terminating the agree- 
 ment, and forfeiting McCutcheon's pay- 
 ments previously made for default in 
 payment of the instalment due on 1st 
 January, 1908. The logs in question had 
 been cut before that date and were re- 
 moved from the limit by McCutcheon's 
 assignees who on 31st March, 1908, gave 
 the defendants a security under section 
 88 of the Bank Act for advances. 
 
 Held, (1) The effect of the agreement 
 was to vest the property in the logs in the 
 purchaser as soon as cut, subject to a 
 right of the plaintiffs, on default in any 
 payment, to deal with the logs as if the 
 property therein had become re-vested in 
 them, and that the words "shall be 
 deemed to be" were not equivalent to 
 "shall be" when taken along with the 
 rest of the document. 
 
 (2) The logs in question having been in 
 the possession and ownership of Mc- 
 Cutcheon's assignees until 1st. May, 
 1908, when the plaintiffs first attempted 
 to take possession of them, the Bills of 
 Sale and Chattel Mortgage Act prevented 
 the plaintiffs from acquiring any title to 
 them by virtue of the agreement as 
 against the claim of the defendants. 
 
 (3) The claim of the Bank was vaUd 
 under sub-section 2 of section 89 of the 
 Bank Act as against any hen of the 
 unpaid vendors, it being proved that the 
 Bank had no knowledge of any such lien 
 at the time when the security was taken. 
 
 (4) The plaintiffs had, in fact, under the 
 circumstances, no vendor's lien on the 
 logs in question after they had been re- 
 moved from the limit. 
 
 (5) As the clause in the agreement pro- 
 viding for cancellation of it made no 
 mention of any logs, the consequence of 
 the cancellation was that the logs cut 
 prior to that time remained the property 
 of McCutcheon's assignees wholly un- 
 affected by the cancellation. Mutchen- 
 backer v. Dominion Bank, 21 M. R. 320. 
 
 5. "Money or other property", 
 meaning o£ — Whether real estate included 
 — Ejusdem- generis rule. 
 
 The defendants had, executed agree- 
 ments authorizing the plaintiffs in the 
 
203 
 
 CONTRACT. 
 
 204 
 
 event which happened "to take possession 
 of anjr money or other property" which the 
 plaintiffs might find belonging to the 
 defendants, and "to sell such goods or 
 property" and take such other proceedings 
 as the plaintiffs might deem best, for 
 recovering the amount of the payment 
 made under guarantee bonds issued for 
 the defendants and expenses, &c. 
 
 The agreements also contained the 
 following: "The undersigned agrees to do 
 and execute any deed or thing that the 
 company may deem to be necessary in 
 order to give the company the rights and 
 powers herein expressed or intended to be 
 given." The agreements were on printed 
 forms prepared by the plaintiffs. 
 
 Held, that the plaintiffs were not en- 
 titled, under the agreements, to a lien on 
 any real estate of the defendants for the 
 amount of their claim, and that the words 
 used should not be construed to include 
 land, the rule of ejusdem generis being 
 applicable in this case. London Guaran- 
 tee & Accident Co. v. Gporge, 16 M. R. 132. 
 
 VI. Evidence. 
 
 1. Claim against estate of de;ceased 
 person — Corroboration — Executors and ad- 
 ministrators. 
 
 The plaintiff sued the executors of one 
 Reid for services rendered in taking care 
 of a child of Reid, after his death. She 
 had been engaged by Reid as a nurse to 
 attend him in his last illness, and her 
 evidence was that Reid, previous to his 
 death, asked her to continue in the house 
 and to look after his wife and child, and 
 deceased had said "If anything happens, 
 will you promise that you will stop with 
 her." There was no corroboration of the 
 plaintiff's testimony as to the promises 
 made her by the deceased. 
 
 Held, allowing an appeal from the 
 verdict of a County Court in plaintiff's 
 favor, that the contract ag alleged was 
 open to two constructions: (1) that the 
 plaintiff was to stay with Mrs. Reid if 
 anything happened to the testator, (2) 
 that she was to take care of the child, 
 and, the plaintiff having contended that 
 Reid meant she was to stay with the 
 child and take care of it, each may have 
 intended a different thing, and consequent- 
 ly no contract was clearly proved; also 
 that corroboration of the plaintiff's 
 evidence was necessary in this case. 
 Simpkin v. Paton, 18 M. R. 132. 
 
 2. Collateral verbal agreement — 
 
 Parol evidence — Consideration. 
 
 The defendant having given a written 
 order to the plaintiffs for a binder, it was 
 delivered to him, but he afterwards re- 
 turned it claiming that he was not satisfied 
 with it. 
 
 At the trial the evidence showed' that, 
 either at the time of the negotiations or 
 after the order had been signed, a verbal 
 agreement had been made between the 
 defendant and the plaintiffs' agent to the 
 effect that if the binder did not work to 
 the defendant's satisfaction he might 
 return it. 
 
 Held, following Mason v. Scott, 22 Gr. 
 592, that, if the condition sought to be 
 proved was agreed to at the time of the 
 signing of the order, parol evidence of it 
 could not be received, as it would be a 
 variation of and contradictory to the 
 written contract; and, it subsequent to 
 the signing of the order, no consideration 
 for the plaintiffs entering into it had been 
 proved; and that the plaintiffs' verdict 
 should be upheld. 
 
 Ldndley v. Lacey, 17 C.B.N.S. 578; 
 Morgan v. Griffith, L. R. 6 Ex. 70; ErsUne 
 V. Adeane, L. R. 8 Ch. 756, distinguished, 
 on the ground that in each of these cases 
 the verbal agreement sought to be proved 
 was collateral and on a subject distinct 
 from that to" which the written contract 
 related. Savlts v.'Eaket, 11 M. R. 597. 
 
 Distinguished, Jones v. Green, 14 M. R. 
 
 61. 
 
 VII. MiSHBPHBSENTATION. 
 
 1. Of contents of agreement signed 
 by defendant without reading ^t — 
 
 Consensus ad idem. 
 
 Defendant, negotiating with plaintiffs' 
 agent for the purchase of a stacker, was 
 asked to sign an order for one. The 
 agent filled up a form of order and de- 
 fendant said to him: "Now, if there is 
 anything in this order that binds me to 
 keep the stacker if it does not give satis- 
 faction, I won't sign it," to which the 
 agent rephed that there was not, that he 
 could take the stacker out and keep it 
 ten days, and if it did not give satisfaction 
 he need not settle for it, but could bring 
 it in and leave it on the agent's platform 
 at Boissevain. Defendant then signed 
 the order without reading it, as he was 
 in a hurry to catch a train. 
 
 By the terms of the_ order only one 
 day's trial of the machine was allowed, 
 and the buyer, if it did not give satisfac- 
 
205 
 
 CONTRACT, 
 
 206 
 
 tion, was to return it to the plaintiffs at 
 Carberry. 
 
 There was a printed direction at the 
 top of the order to give the purchaser a 
 duplicate, but none was given to him. 
 
 On receipt of -the machine defendant 
 tried it and, not finding it to work satis- 
 factorily, returned it within ten days to 
 the agent at Boissevain. 
 
 At the trial the agpnt admitted that, 
 at the time the order was signed, he 
 thought it provided for a ten days' trial. 
 
 Held, that there was no such consensus 
 ad idem between the parties as is necessary 
 to create a binding contract and that the 
 verdict of the County Court Judge in 
 favor of defendant in an action by plain- 
 tiffs for the price of the machine should 
 be sustained, and the plaintiff's appeal 
 dismissed with costs. 
 
 Foster v. McKinnon, (1869) L. R. 4 
 C. P. 704; Smith v. Hughes, (1871) L. R. 
 6 Q. B. 597, and Murray v. Jenkins, (1898) 
 28 S.C.R. 565, followed. 
 
 Savlts V. Eaket, (1897) 11 M. R. 597, 
 distinguished. Jones Stacker Co. v. Green, 
 14 M. R. 61. 
 
 2. Equitable relief in County Court 
 Action — Rescission — County Courts Act, 
 B.S.M., 1902, c. 38, s. 61. 
 
 1. Without a rescission of a contract 
 there can be no recovery of amounts paid 
 under it by one party on the ground of 
 alleged misrepresentation by the other 
 party inducing the contract. 
 
 2. County Courts in this Province have 
 no jurisdiction to cancel contracts on the 
 ground of fraud, as sub-section (6) of 
 section 61 of the County Com'ts Act, 
 R.S.M. 1902, c. 38, which confers equitalsle 
 jurisdiction when the subject of the action 
 is "an equitable claim and demand of 
 debt, account or breach of contract, or 
 covenant or money demand, whether pay- 
 able in money or otherwise," does not 
 apply to an action for the cancellation of 
 a contract. Yasne v. Kronsen, 17 M. R. 
 301. 
 
 3. Mutual niista.ke — Innocent misrep- 
 resentation — Rescission of contract — Dam- 
 ages — Costs when fraud charged. 
 
 Plaintiff entered into a contract for the 
 purchase of land from the defendant after 
 the latter had personally shown him 
 what he honestly thought was the land he 
 owned. After payment of certain instal- 
 ments of the purchase money and certain 
 sums of money for taxes and otherwise in 
 c onnection with the land, plaintiff bought 
 
 an outfit of horses, implements, lumber, 
 &c., and took them out to the railway 
 station nearest the land intending to take 
 possession and commence farming oper- 
 ations. He then discovered that the 
 property which he had bought was not 
 the one which had been shown to him, 
 but was gfeatly inferior to it in value. 
 He then brought this action in which he 
 charged the defendant with fraudulent 
 misrepresentation as to the locality of 
 the property. 
 
 Held, (1) Plaintiff was entitled to have 
 the contract rescinded and to repayment 
 of all moneys paid by him under it with 
 interest at five per cent, per annum. 
 
 Adam v. Newhigging,' {l?i9&) 13 A.C. 
 308, follpwed. 
 
 ~ (2) Plaintiff was not entitled to damages, 
 as defendant's misrepresentation had not 
 been fraudulently made. 
 
 (3) Appearances having justified the 
 charge of fraud, though this was not 
 proved, costs should be allowed. Hopkins 
 V. Fuller, 15 M. R. 282. 
 
 VIII. Performance of. 
 
 1. Consideration — Failure to complete 
 contract — Threshers' Lien Act, R.S.M. 
 1902, c. 167. 
 
 The plaintiff was employed to thresh 
 the defendant's crops of wheat, oats, and 
 barley at prices agreed upon. He threshed 
 all the wheat (over 2500 bushels), but left 
 458 bushels of barley and 10 to 15 acres 
 of oats unthreshed. 
 
 Held, that the promise of each party 
 was the consideration for the promise of 
 the other and that payment by the de- 
 fendant was not intended to be conditional 
 upon the threshing of all the crops, so 
 that plaintiff had not, by leaving some of 
 the work undone, forfeited his right to be 
 paid for what he had done, or lost his 
 right to seize under the Threshers' Lien 
 Act, R.S.M. 1902, c. 167, a sufficient 
 quantity of the grain he had threshed 
 from which to realize the amount of his 
 claim. 
 
 BeUini v. Gye, (1876) 1 Q. B. D. 187, 
 followed. HoUingsworth v. Lacharite, 19 
 M. R. 379. 
 
 2. Entire agreement — N cm-perform- 
 ance by plaintiff of the whole agreement, on 
 his part — Liability of defendant conditional 
 on plaintiff's performance of whole agree- 
 ment. 
 
 Plaintiff agreed with defendant, the 
 president of a company, to provide. 
 
207 
 
 CONTRACT. 
 
 208 
 
 within a limited time, $5,000, which he 
 was to use for the purchase of suppUes, 
 and was to arrange for further funds 
 necessary to carry on the business of the 
 company; he was to pay debts owing by 
 the company and to give defendant a 
 mortgage for $7,000. Defendant, on the 
 other hand, undertook to have all the 
 stock in the company transferred to the 
 plaintiff, not later than 1st December, 
 1890, and, in case of his failure to do so, 
 to pay back any moneys advanced by 
 plaiutiif for paying off debts of the com- 
 pany, and for the purpose of carrying on 
 the coiittpany's business. The stock not 
 having been transferred, the plaintiff sued 
 to recover back moneys advanced by hird. 
 Held, that the agreement on the 
 . plaintiff's part was an entire .one, and he 
 had not performed those parts of it which 
 were to be performed by him before the 
 transfer of the stockl 
 
 The liability of defendant to procure a 
 transfer of the stock on 1st December, 
 and to repay advances in default of his 
 procuring such transfer, was conditional 
 upon the plaintiff having duly performed 
 those parts of the agreement to be per- 
 formed by him before that date. Woods 
 V. Matheson, 8 M. R. 158. 
 
 3. Non-payment of instalments of 
 contract price. 
 
 The plaintiff agreed with the defendants 
 to excavate and curb six water tanks, 
 payment to be made weekly to the extent 
 of fifty per cent. 6f the value of the work 
 done, on estimates to be made by the 
 defendants' engineer. The weekly pay- 
 ments having fallen in arrear, the plaintiff 
 stopped work, and the defendants, taking 
 the material and tools left by him, com- 
 pleted it at their own expense. 
 
 ifeM,(McEEAQNBT J., dissenting), that 
 the plaintiff was not entitled to recover 
 anything, either on a special count on the 
 agreement, or on the common counts, 
 though he might recover damages in 
 trespass or trover for the material and 
 tools used by the defendants, Clarke v. 
 Winnipeg, T. W. 56. 
 
 4, Prevented by fire — AccepUmce of 
 insurance money on property destroyed, 
 effect of — Interest — Pleading. 
 
 The plaintiffs were prevented from 
 completing their contract to put an 
 elevator into the defendants' building by 
 a fire which destroyed the building and 
 the partly completed' elevator. The de- 
 
 fendants were not in any way responsible 
 for the fire. 
 
 The second instalment of the contract 
 price was to be paid when the "machine" 
 was in place, but the "machine" had not 
 been put in its place, although its parts 
 had been assembled in the building. 
 
 Held, that the plaintiffs could not re- 
 cover such second instalment or anything 
 further under the contract. 
 
 Fairchild v. Bitstin, (1907) 39 S.C.R. 
 274, and Boss v. Moon, (1907) 17 M.R. 
 24, foUowed. 
 
 The plaintiffs claimed in the alternative 
 that they were entitled to recover the 
 whole price of the elevator quantum 
 meruit, because the defendants had 
 insured it for its full value and had 
 collected and received the full amount of 
 the insurance, having included the value 
 of the elevator in their proofs of loss sent 
 in to the insurance companies, and should, 
 therefore, be deemed to have accepted it. 
 . It appeared, however, that the defend- 
 ants had left the placing of the insurance 
 upon their property i.i the hands of their 
 agent and had not instructed him to 
 insure the elevator, and were not aware, 
 when their proofs of loss were made, that 
 the elevator had been so included, and 
 that their total loss was much in excess of 
 the total insurance. 
 
 Held, that the defendants, having 
 paid $1,400 on the elevator, had an 
 insurable interest in it and a right to 
 receive the insurance money, and that 
 what they had done in connection with 
 the insurance did not constitute an accep- 
 tance of the elevator. 
 
 Interest is not recoverable unless a case 
 for its allowance is made by the statement 
 of claim; but, if such case is made, interest 
 may be allowed imder the prayer for 
 general relief. Fensom v. Bulman, 17 M. 
 R. 307. 
 
 IX. Rectihcation of. 
 
 1. Accord and satisfaction — Construc- 
 tion of contract — Condition precedent — 
 Reconveyance. ' 
 
 The defendant being .indebted to the 
 plaintiffs and other parties, who after- 
 , wards transf eired their claims to the 
 plaintiffs, and being possessed of a certain 
 mining location supposed to contain gold, 
 at a meeting between him and these 
 creditors, held in Winnipeg in July, 1896, 
 a verbal agreement was made providing 
 that the creditors should expend at least 
 $1,000 in development of the property • 
 
209 
 
 CONTRACT. 
 
 210 
 
 which was to be conveyed to two of them 
 as trustees as soon as a written contract 
 would be executed by all parties; that in 
 case it should be shown by such develop- 
 ment that the location was valuable or 
 likely to prove valuable, of which fact 
 the creditors were to be the sole judges, 
 they would procure from the Government 
 of Ontario a charter incorporating the 
 defendant, the creditors and such others 
 as should become shareholders as a body 
 corporate for the purpose of developing 
 and operating the location; that upon 
 the formation of the company the trustees 
 would convey the property to it for a 
 consideration of one half the capital stock 
 of the company fully paid up, one half of 
 which was to be issued to the defendant 
 and the other halt to the creditors; also 
 that the trustees would reconvey the 
 property to the defendant, if the agree- 
 ment should not be carried into effect by 
 the formation of the company within one 
 year from its date; and that, if the mine 
 should prove valuable and be accepted 
 and a company formed, the creditors 
 would accept their half interest in the 
 mine in full of their claims against the 
 defendant, which were then to be treated 
 as discharged. 
 
 The written contract afterwards drawn 
 up and signed by all parties contained the 
 following clause: "Aid it is also agreed 
 that, in the event of the mine proving 
 valuable and being accepted and a com- 
 pany formed, that the parties of the 
 second part" — the creditors — "shall from 
 the proceeds of their half interest in the 
 mine pay the present old indebtedness, 
 amounting to about $7,000, of the party 
 of the first part to them." See the state- 
 ment for the facts in connection with 
 the insertion of this clause. 
 
 The creditors expended a considerable 
 amount of money in the work of develop- 
 ing the mine; and in February, 1897, 
 applied for a charter of incorporation, 
 and in April following a company was 
 formed pursuant to the agreement for the 
 working of the mine, but the evidence 
 showed in the opinion of the Court that 
 the creditors had never been satisfied that 
 the mining location was valuable or likely 
 to prove valuable, and had organized the 
 company at the time they did to avoid 
 the operation of anticipated legislation in 
 the Province of Ontario. 
 
 The defendant claimed that the credi- 
 tors had decided that the property was 
 valuable or likely to prove so, that the 
 incorporation of the company by them 
 
 was conclusive upon this point and that, 
 under the agreement as drawn or as it 
 should be made to read, his indebtedness 
 was satisfied. 
 
 Held, that the creditors were not con- 
 cluded by the formation of the company 
 from showing that they had not decided 
 to accept the m^ine; also that, although by 
 one of its clauses the only condition pre- 
 cedent to the duty of the trustees to 
 transfer to the company directly expressed 
 was that the company should be formed, 
 the instrument should be read as a whole, 
 and that this clause should be construed 
 to mean the formation after the creditors 
 had come to the necessary decision as to 
 the mine being valuable, which was of 
 the essence of the whole contract. 
 
 Held, also, that there was no case for 
 the rectification or reformation of the 
 instrument made by the evidence. The 
 defendant knew of the terms of the in- 
 serted clause, and the only mistake which 
 he at all suggested was in his own inter- 
 pretation of it, a mistake whoUy unilateral 
 and unknown to the creditors, and one 
 which, as far as the evidence disclosed, 
 was not due to any fraud, artifice or xms' 
 representation of the creditors or any of 
 them. Until the execution of the written 
 document no one was bound; and, although 
 one of its terms differs from what had 
 been verbally agreed upon, it does not 
 follow that in executing the document 
 the parties intended to adhere to their 
 informal verbal understanding, rather 
 than to the terms expressed in the docu- 
 ment. The creditors accepted and exe- 
 cuted the instrument as settled and signed 
 by the defendant; there was nothing to 
 show that they had done so under any 
 mistake as to its terms or as to its mean- 
 ing, or had any reason to suspect any 
 mistake on the part of the defendant; and 
 without notice of any mistake they ex- 
 pended their money. 
 
 . The defendant also contended that a 
 reconveyance of the property should 
 have been tendered to . him before the 
 commencement of this action, as more 
 than a year had elapsed from the time 
 that the agreement was made, which 
 plaintiffs claimed had not been carried 
 into effect. 
 
 Held, that, as there was no satisfaction 
 of the debts, such reconveyance could not 
 be a condition precedent to the right to 
 recover, but at most the defendant might 
 have asked the Court to stay proceedings 
 until reconveyance which was practically 
 the relief given by the judgment appealed 
 
211 
 
 CONTRACT. 
 
 212 
 
 from, which directed that it should not be 
 enforced until the property had been re- 
 conveyed to the defendant. Whitla v. 
 Phair, 12 M. R. 122. 
 
 2. Consensus ad idem — Evidence to 
 vary written contract. 
 
 The defendants signed an agreement to 
 purchase a flour mill from the plaintiff for 
 $13,000, payable $1000 cash and the 
 balance in quarterly instalments. The 
 agreement contained a clause providing 
 that, upon any default being made iu 
 payment, the whole purchase money 
 should become due and payable at once. 
 This clause was not asked for by any of 
 the parties, but found its way into the 
 agreement simply because it happened to 
 be in the printed form used by the soUoitor 
 who prepared it and acted for both sides. 
 The defendants were foreigners who 
 understood English very imperfectly and 
 the trial Judge found as facts that they 
 were entirely ignorant of the existence in 
 the agreement of the clause referred to, 
 that it was not explained to them either 
 by the solicitor or by any other person in 
 a manner that they could imiderstand and 
 that the plaintiff, who spoke the defend- 
 ants' language, had undertaken to explain 
 the agreement to them and that they had 
 depended on him to do so. 
 
 Held, that the defendants were not 
 bound by the clause in question and the 
 plaintiff could only recover the amount 
 of the overdue .instalment. Streimer v. 
 Nagel, 19 M. R. 714. 
 
 3. Evidence to rectify agreement — 
 
 Mistake — Reforming an agreement — 
 Agreement to guarantee notes. 
 
 The defendants had acted as the agents 
 of the plaintiffs at Portage la Prairie for 
 the sale of agricultural implements under 
 a formal contract in a printed form with 
 certain additions and alterations in 
 writing. One of the printed clauses pro- 
 vided that the defendants "agreed to' 
 guarantee" payment of all notes taken in 
 settlement for machinery, and the claim 
 in this action was against the defendants 
 as guarantors of the payment of one of 
 the promissory notes taken by them under 
 this agreement. The chief defence set up 
 was that such clause of the contract 
 should not have been inserted in it, beiijg 
 contrary to the actual agreement between 
 the parties, and that the contract should 
 be rectified by striking it out. 
 
 In giving the reasons for his verdict in 
 favor of the defendants, which involved 
 
 rectifying the contract between the parties 
 in accordance with the defendants' con- 
 tention, the Judge of the County Court 
 appealed from appeared to have merely 
 contrasted the weight, of the evidence as 
 upon an ordinary issue, and not to have 
 fuUy appreciated the rule of law, that in 
 asking the Court to reform or rectify an 
 instrument purporting to contain the 
 agreement of the parties the evidence to 
 vary the language must be of the clearest 
 and most satisfactory character, and 
 overwhelmingly against the document, to 
 enable the Court to disregard its' plain 
 terms. 
 
 Held, that, under these circumstances, 
 the judgment should have been set aside, 
 or a new trial granted to enable the de- 
 fendants to offer further evidence of the 
 circumstances, but for the other objection 
 to the plaintiffs' recovery. 
 
 The other defence raised by defendants 
 was that no demand had ever been made 
 upon them to sign any guaranty of any 
 particular note. 
 
 Held, that the proper construction of 
 the agreement was that it provided for 
 the execution of some further instrument, 
 and was not one of present guaranty of 
 the notes to be given in futuro, and as 
 this was not an action for neglect or 
 refusal to enter into a guaranty, the plaint- 
 iffs were not entitled to a verdict or to 
 have the judgment in favor of the de- 
 fendants set aside to enable them to 
 change the form of the claim. Sylvester v. ' 
 Porter, 11 M. R. 98. 
 
 4. Interest — Effect of taking judgment 
 for claim — Partnership. 
 
 The defendant Preston, in October, 
 1889, contracted with one Charlebois to 
 build certain fences and gates along the 
 Une of the G. N. W. Central Railway, 
 and, after associating the defendant 
 Musson with him, they sublet the contract 
 to the plaintiffs by a written agreement 
 which provided for payment to the 
 plaintiffs as foUows: "Estimates for the 
 said work shall be made monthly by the 
 company's engineer ***** ^ g^^^ * * 
 * * * * shall be paid forthwith upon 
 same being paid to said Preston and 
 Musson by said company." 
 
 Charlebois was the contractor for the 
 whole of the railway work being done by 
 the company, and the evidence showed 
 that the word "company" in the above 
 provision was used by mistake for Char- 
 lebois. 
 
213 
 
 CONTRACT. 
 
 214 
 
 After payment of two estimates for 
 part of the plaintiffs' work difficulties 
 arose, and the company's engineer, who 
 also acted as engineer for Charlebois, to 
 prevent the bringing of an action, with- 
 held further estimates; but in SeptemlDer, 
 1891, after litigation between Charlebois 
 and the company hajl commenced, Preston 
 accepted a judgment against the company 
 for the balance due to him by Charlebois 
 upon his fencing contract. This judg- 
 ment, however, was not paid until 1898, 
 and then it was paid without inteuest. 
 
 Held, that the plaintiffs were not en- 
 titled to interest on their claim before 
 action, as it was not payable by virtue of 
 a written instrument at a time certain 
 within the meaning of the Act 3 & 4 Wm. 
 4, c. 42, s. 28. 
 
 London, Chatham & Dover Ry. Co. v. 
 South-Eastern Ry. Co., [1892] 1 Ch. 120, 
 followed. 
 
 Per Bain, J. (1) That the agreement 
 between the plaintiffs and defendants 
 should . be treated as if Charlebois had 
 been mentioned in it instead of the com- 
 pany and should be rectified, if necessary. 
 
 (2) That, by accepting the judgment 
 against the company, Preston had put it 
 out of his power to insist on getting an 
 estimate from the engineer for his work, 
 and it should be considered as between 
 Preston and the plaintiffs that he was 
 then paid the balance due on the contract, 
 
 • and the plaintiffs could then have brought 
 their action {Otway v. Holdips, (1689) 2- 
 Mod. 266; Pilbrow v. Pilbrow (1848) 5 
 C. B. 439,) without waiting till Preston 
 was actually paid. 
 
 (3) That the defendant Musson was 
 bound by Preston's action in accepting 
 the judgment just as he would have been 
 by a paymient made by Charlebois to 
 Preston. Sinclair v. Preston, 13 M. R. 
 228. 
 
 Appeal dismissed, 31 S.C.R. 408. 
 Leave to appeal to Privy Council re- 
 fused. 
 
 5. Mutual mistake — Omission of pro- 
 vision by mistake — Agreement of sale of 
 land. 
 
 A clause giving the purchaser of land 
 under an agreement the right to pay off 
 the whole or any part of the purchase 
 money at any time was omitted from it 
 by pure inadvertence in the office of the 
 solicitor who prepared it and without the 
 knowledge or concurrence of either party. 
 
 That clause was in the preliminary written 
 option signed by the vendor. 
 
 Held, that the" mistake was mutual 
 and that the purchaser was entitled to 
 have the agreement reformed by the in- 
 sertion of the omitted clause. Heath v. 
 McLeneghen, 5 W. L. R. 358. 
 
 X. Repudiation of. 
 
 1. Election to treat contract as 
 ended except for the purpose of an 
 action for breach. 
 
 It B repudiates his agreement to lease 
 property from A for a term to commence 
 at a future date, A may treat the contract 
 as at an end except for the purpose of 
 bringing an action for the breach of con- 
 tract and he may remain in possession 
 during the whole of the term agreed on 
 and then bring such action. 
 
 Johnstone v. Milling, (1886) 16 Q.B.D., 
 per Lord Esher at p. 467, followed. Arden 
 Hotel Company v. Mills, 20 M. R. 14. 
 
 2. Quantum meruit — Rescission. 
 Plaintiff agreed to serve defendant for 
 
 five years, and defendant agreed at the 
 end of that period to convey to him 240 
 acres, 50 of which he would break in the 
 preceding summer. Pending the term 
 the defendant intimated that he would 
 only convey 160 acres all unbroken. 
 
 Held, that plaintiff was entitled to 
 treat this as a repudiation of the contract, 
 and to sue upon quantum meruit for work 
 and labor. Festing v. Hunt, 6 M. R. 381 
 
 3. Remedies in such case — Rescission 
 — Refusal to perform. 
 
 A refusal by the promisor to perform 
 the contract unless the promisee will do 
 something which he is not bound to do 
 may be treated as an absolute refusal to 
 perform it, and the promisee may at once 
 rescind the contract and sue for damages. ' 
 
 Freeth v. Burr, (1874) L. R. 9 C. P. 208; 
 Withers v. Reynolds, (1831) 2 B. & Ad. 
 882, and Mersey Steel and Iron Co. v. 
 Naylor, (1884) 9 A. C. 434, foUowed. 
 
 When the promisee has thus rescinded 
 a contract of -sale of ascertained goods 
 and afterwards put it out of his power to 
 perform it by otherwise disposing of some 
 of the goods, subsequent negotiations on 
 his part to induce the promisor to take 
 other similar goods on the same terms, or 
 offers to settle the dispute for the sake of 
 avoiding litigation, will not necessarily be 
 considered as doing away with the effect 
 of the previous rescission. McCowan v, 
 McKay, 13 M. R. 590. 
 
215 
 
 CONTRACT 
 
 216 
 
 XI. Rescission op. 
 
 1. Right of some only, of a number 
 of joint contractors, to rescind — In- 
 toxication. 
 
 Although a person, who has been in- 
 duced to enter into a contract of purchase 
 as one of a partnership or syndicate, 
 proves such fraud or misrepresentation on 
 the part of the vendor that he would, if 
 alone concerned, have been entitled to 
 rescind the contract, yet he is not in a 
 position to do so unless aU the members 
 of the partnership or syndicate are seekiag 
 such rescission. The only remedy such 
 person could have, unless the other 
 persons interested join, would be by 
 cross-action or Counter-claim for damages. 
 
 Mornson v. Earls, (1884) 5 O. R. 434, 
 followed. 
 
 Drunkenness is not a ground for setting 
 aside a contract, unless the person was so 
 intoxicated as not to know what he was 
 doing. 
 
 Viman v. Scoble, (1884) 1 M. R. 125, 
 followed. McLaren v. McMillan, 16 M. 
 R. 604. 
 
 2. Suing on quantum, meruit — One 
 
 action by two persons, not partners, for 
 different claims. 
 
 The plai;iti£EB, husband and wife, 
 brought this action in the County Court 
 for the value of their services under 
 contract made by the defendant with the 
 husband, to pay him $425 for the services 
 for a year of both husbaind alid wife. 
 Plaintiffs were, as they claimed, wrong- 
 fuEy dismissed and sued before the end of 
 the year for a proportionate part of the 
 $425, giving credit for certain payments. 
 
 Plaintiffs had a verdict and defendant 
 appealed. On the argument of the appeal, 
 plaiptiffs' counsel admitted that under 
 the circumstances they could not sue on 
 the contract, but claimed that they were 
 en;titled to recover on a quantum meruit. 
 
 Held, that the husband and wife could 
 not join in one action their separate 
 claims for their work and labour done for 
 the defendant, even if the dismissal was 
 wrongful. Crumhie v. McEwan, 9 M. R. 
 419. ' 
 
 XII. Sale op Goods. 
 
 1. Sale of several articles together, 
 some only being supplied — New con- 
 tract subject to terms of old one — Sale of 
 Goods Act, B. S. M. 1902, a, 152, s. 16— 
 Implied warranty — Interest. 
 
 Action for the price of an engine, 
 thresher, aid other articles of machinery 
 supplied by plaintiffs to defendants in 
 pursuance of a written contract. 
 
 This contract caUfed for the furnishing 
 at the same time of a number of parts 
 and attachments necessary to the effective 
 use of the machinery in addition to those, 
 actually supphed. The statement of 
 claim was founded upon the original 
 contract, but the evidence showed that 
 the defendaiiits had made a new bargain 
 with .the plaintiffs under which they 
 accepted the machinery actually dehvered 
 6n the plaiii>tjffs promising to pay the 
 freight ahd allow for the articles not 
 delivered. 
 
 The trial Judge found that the machin- 
 ery accepted was reasonably fit for the 
 purposes for which it was sold, although 
 this had been disputed by the defendants. 
 
 Held, that the plaintiffs should be 
 allowed to amend the statement of claim 
 by setting up the new contract and com- 
 pliance therewith and should then have 
 judgment for the contract price less the 
 freight and the cost of the articles not 
 dehvered. 
 
 Defendants contended that the written 
 agreement was superseded by the new 
 arrangement and that the plaintiffs could 
 only rely upon an implied agreement to 
 pay what the goods received were worth, 
 subject to the imphed condition, under 
 sub-section (a) of section 16 of the Sale 
 of Goods Act, R. S. M. 1902, c. 152, that 
 they were reasonably fit for the purposes 
 for which they were sold. 
 
 The original agreement, however, con- 
 tained a proviso that "in the event of 
 changes being made in machinery or 
 terms mentioned in this -contract . . 
 or any changes whatever, such changes 
 are in no way to supersede or invahdate 
 this contract; but it is to remain vaUd, 
 binding and in full force in aU its clauses 
 except in so far as relates to the specific 
 
 Held, that full effect must be given to 
 this proviso, and that all the provisions 
 of the original contract, except those 
 modified by the new bargain, remained in 
 fuU force. 
 
 The original agreement made provision 
 for the giving of promissory notes by the 
 defendants for instalments extending 
 over several years, and that two of such 
 notes were to bear interest at seven per 
 cent, per annum until due, also that if 
 such notes were not given the whole 
 purchase price should be due and payable 
 
217 
 
 CONTRACT 
 
 218 
 
 forthwith, but there was no provision for 
 interest in that event. 
 
 Held, that, as the notes had not been 
 given, the plaintiffs were only entitled to 
 interest at the statutory rate of five per 
 cent per annum. Ross v Moon, 17 M. 
 R. 21. 
 
 2. Sale of a number of machines 
 together — Delivery of some, but not all — 
 Acceptance , of •part performance — Ac- 
 quiescence — Breach of Warranty — - 
 Agreement for lien on land. 
 
 The plaintiffs agreed to deliver and the 
 defendant agreed to purchase from the 
 plaintiffs one 18-horse power traction 
 engine, one 40 x 60 Advance sepaj-ator 
 complete, one caboose and one tank and 
 pump with hose, the machinery being 
 warranted to be complete and ready to 
 work, the price to be $1400 to be secured 
 by promissory notes payable in three 
 sufccessive years. The agreement, which 
 was in writing, also provided that the 
 defendant would deUver to the plaintiffs, 
 at the time of the deUvery of the said 
 machinery as therein provided or upon 
 demand, a mortgage on certain lands to 
 secure the purchase money, and that the 
 plaintiffs should have a specific lien and 
 charge on the said, lands for the same. 
 The plaintiffs failed to supply the caboose 
 or the tank, but relied on the acceptance 
 by the defendant of the remaining articles, 
 his giving of the notes provided for, his 
 making of pajnments on account thereof and 
 other acts and conduct showing that he 
 treated the a^eement as binding upon 
 him. The plaintiffs claimed under the 
 original agreement and did not ask for an 
 amendment of their statement of claim 
 . setting up any new or substituted contract 
 to pay for the articles retained as upon a 
 guantum meruit. 
 
 Held, per Dtjbtjc, C. J., (1) The failure 
 to furnish the caboose and tank should 
 not be a bar to recovery in the action, 
 because the defendant failed to comply 
 with the provisions of the agreement that 
 he should give written notice in case he 
 could not make the machinery operate 
 well and should return it within ten days 
 in such event, and also because his sub- 
 sequent conduct in making payments on 
 the notes and his correspondence showed 
 that he considered the contract to be still 
 subsisting. 
 
 (2) The failure to furnish some parts of 
 the machinery should, under the circum- 
 stances, be treated as a breach of warranty 
 only, entitling the defendant to have a 
 
 proper reduction of the contract price of 
 the whole, laut not to a rescission or can- 
 cellation of the agreement. 
 
 (3) The plaintiffs were entitled to the 
 lien on the land provided for by the agree- 
 ment for the amount overdue on the 
 notes, with costs, less the value of the 
 articles not deUvered. 
 
 Hinchdiffe v. Banoick, (1879) 6 Ex. D. 
 177, and Hamilton^ v. Northey. Manufac- 
 turing Co., (1900) 31 O. R. 468, followed. 
 
 On appeal from this judgment, 
 ■ Held, per Richards, J., that it should 
 be affirmed. 
 
 Per Pebdtje, J. The plaintiffs' failure 
 to dehver some substantial parts of the 
 machinery cannot be treated as merely a 
 breach of warranty, but must be con- 
 sidered as a failure to perform the contract 
 on their part disentitling them to recover 
 anythiag except upon a new or substituted 
 contract, to be inferred from the acts 
 and conduct of the parties, to pay for the 
 machinery actually deUvered what it was 
 actually worth: Pollock on Contracts, 7th 
 Ed. 265; Sumpter v. Hedges, [1898] 1 Q. 
 B. 673, and Hart v. Mills, (1846) 15 M. 
 & W. 85. 
 
 The plaintiffs, having refrained from 
 amending their claim by setting up any 
 such new contract, doubtless because by 
 so doing they would lose the benefit of 
 the lien on the land provided for in the 
 subsisting agreement, had failed to es- 
 tablish the claim set up and the appeal 
 should be allowed and the action dismissed 
 with costs. 
 
 The Court being equally divided, the 
 judgment of DtiBUC, C. J., was affirmed. 
 Fairchild Co. v Rustin, 17 M. R. 194. 
 
 Defendant appealed to the Supreme 
 Court, when the judgment appealed from 
 was reversed, the Court holding that the 
 right of the plaintiffs to enforce the lien 
 depended upon the interpretation of the 
 whole contract; that the provision as to 
 the hen only became operative in the case 
 of a complete delivery pursuant to the 
 contract, and that the aJlternative words 
 "or upon demand" must be taken as 
 meaning upon a demand made after such 
 complete delivery. 39 S.C.R. 274. 
 
 3. Shipment — Place of weighing grain 
 sold — Costs. 
 
 A contract for the sale of a car load of 
 wheat to be shipped in the first half of 
 October is fulfilled if the grain is loaded 
 on a car on or before the 15th of that 
 month, although the bill of lading is not 
 
219 
 
 CONTRACT. 
 
 220 
 
 signed until the 17th and is not received 
 by the purchaser until .the 19,th. Ship- 
 ment means simply putting on board. 
 
 Bowes V. Shand, (1877) 2 A. C. 455, 
 followed. 
 
 The car of wheat in question was 
 shipped from a station of the C. N. R. 
 and was, in the regular course of the traffic 
 over that railway, sent to Port Arthur 
 and the wheat was weighed there and not 
 at Fort William where wheat sent over 
 the C. P. R. is generally weighed; and it 
 appeared that the insertion in the contract 
 of the words "Fort William weight" was 
 inadvertently made by the defendants' 
 manager who had prepared it, and that it 
 really made no difference to the defendants 
 whether the wheat was weighed at one of 
 those places rather than the other. 
 
 Held, that plaintiff was entitled to 
 recover although the weighing had not 
 been at Fort William. 
 
 When defendants' manager received the 
 shipping bill, he objected to the delay as 
 the price of wheat had declined, but 
 ojEfered to pay within $5 of the amount 
 demanded by the plaintiff. 
 
 Held, that plaintiff should not have- 
 incurred the risk of litigation for so small 
 a sum, and should be deprived of costs on 
 that account. Perry v. Manitoba Milling 
 Co., 15 M. R. 523. 
 
 XIII. Uncertainty of Terms. 
 
 1. Specific performance — Shares — 
 Certainty. 
 
 Defendant N. agreed with the plaintiff 
 as follows: "I hereby agree to sell to you 
 1,850 shares in the Qu'AppeUe Valley F. 
 Co.'s stock for the sum of Il5,000, you to 
 pay $10,000 to the Bank of Commerce, 
 payments of the $15,000 to be made as 
 follows: $5,000 by endorsed note at four 
 months, $5,000 by note at one year's 
 date, $5,000 by note at two years' date, 
 at seven per cent., the last named notes 
 to be secured by a portion of the stock. 
 
 Defendant N. had at this time 2,050 
 shares under 'pledge to the Bank of C. 
 and there was little doubt that the 1,850 
 agreed to be sold were understood to be 
 portion of these 2,050. 
 
 Almost immediately after making this 
 agreement N. sold the shares to his 
 co-defendants. 
 
 Upon a bill for specific performance. 
 
 Held, 1. That the contract was too 
 indefinite in not sufficiently showing what 
 particular shares were to be sold. 
 
 2. And was uncertain as to the endorse- 
 ment of the notes. 
 
 3. And in not providing what portion 
 of the shares was to form the security 
 for the notes. 
 
 4. The shares could not be transferred 
 without the sanction of the directors; and 
 the Court wiU not direct a transfer when 
 it has no power to enforce its complete 
 executioii. 
 
 5. Parol evidence to explain any of 
 these points or show the understanding of 
 the parties would be inadmissible. BeU v. 
 Northtvood, 3 M. R. 514. 
 
 2. Terms to be Fixed by a Third 
 Party. 
 
 The defendant gave to the plaintiff the 
 following letter: "Dear Sir. — If you lend 
 to T. B. R. of this city the sum of $4,000, 
 on lot 85, in block 4. * * * I ^jn guar- 
 antee to take the property at any time 
 for the amount of the mortgage." 
 
 Held, 1. That the contract was not 
 uncertain because the terms of the loan 
 were not agreed to. If the plaintiff and 
 T. B. R. agreed upon the terms without 
 collusion as against the defendant he 
 would be boujid. 
 
 2. The contract was not lacking in 
 mutuality because the_time of performance 
 was left to the option of the plaintiff. 
 
 3. The Statute of Frauds does not pre- 
 vent the proof, by parol, of the perform- 
 ance of a condition precedent. McCaffrey 
 V. Genie, 3 M. R. 559. 
 
 XIV. Warranty. 
 
 1. Fitness of machinery — Waiver- 
 Sale of Goods Act, B.S.M. 1902, c. 152, s. 
 16 — Notice. 
 
 The defendant by agreement in writing 
 dated 21st August, 1909, agreed to buy 
 from the plaintiffs a threshing ipachine 
 and other articles for $1065 and to pay 
 for same in two instalments, $535 on 1st 
 November, 1909, and $530 and interest 
 on 1st November, 1910. 
 
 Shortly after the date of the contract 
 certain threshing machinery was delivered 
 to defendant in presumed compliance 
 with the contract. 
 
 Defendant paid the first instalment and 
 gave his note for the other instalment, 
 but claimed at the trial that he had done 
 so under protest, because the machinery 
 was not satisfactory; and he defended 
 this action for the amount of the note 
 alleging breach of the warranty or con- 
 dition that the machine would do as good 
 
221 
 
 CONTRACT. 
 
 222 
 
 work as any of the same size sold in 
 Canada and that he had given the notices 
 required by the terms of the agreement. 
 The agreement contained the provisions 
 set out fully in the judgment. The 
 defendant sought at the trial, though not 
 pleaded, to invoke the aid of section 16 
 of The Sale of Goods Act R.S.M. 1902, 
 c. 152, on the subject of implied conditions 
 of warranties. 
 
 Held, following Sawyer & Massey Co. v. 
 Ritchie, (1910) 43 S.C.R. 614, that the 
 clauses of the agreement excluded the 
 provisions of the Sale, of Goods Act as to 
 implied conditions, and that the pur- 
 chaser's temedies for breach of warranty 
 as to the working capacity of the machin- 
 ery entirely depended on his having 
 observed the terms of the warranty, so 
 that if the defendant neglected to observe 
 these both his defence to the claim on the 
 note and his counterclaim for damages 
 for breach of the warranty would fail. 
 
 The notices relied on by defendant 
 were as follows: He complained over the 
 telephone to the plaintiffs' local agent, 
 Menzies, who sent to plaintiffs at Winnipeg 
 a telegram reading thus, "Send Badgley; 
 J. M. Ferguson separator laid up." 
 Badgley was an expert in such machinery 
 employed by plaintiffs. 
 
 Held, that, as the alleged notice con- 
 tained no information as to wherein the 
 machinery failed to satisfy the warranty, 
 it was not a sufficient notice to comply 
 with the contract, and that there was 
 nothing from which to infer a waiver as 
 in American Abell v. Scott, (1907) 6 W.L.R. 
 550. 
 
 Held, also, that the provision in the 
 contract excluding waiver would apply in 
 this case. 
 
 Sawyer & Massey Co. v. Ferguson, 20 
 M. R. 451. 
 
 2. Foreign Judgment — Jurisdiction of 
 foreign court — Sale of Goods Act, R.S.M. 
 1902, c. 152, s. 16 (a) — Implied condition 
 of sale. 
 
 1. When a contract for the sale of an 
 engine contains a printed form of warranty 
 as to the fitness of the engine with the 
 provision that the agent of the vendors 
 may not "add to, abridge or change" 
 that' warranty in any manner, the pur- 
 chaser is not precluded from insisting on 
 the fulfilment of any other warranty 
 specially given in writing by the agent. 
 
 2. If the vendors accept and fill an 
 order tor an engine with a provision 
 specially written by their agent in it that 
 
 the engine is to be satisfactory to the 
 purchasers, they thereby waive any limi- 
 tations of the authority of their agent as 
 to giving warranties that may be embodied 
 in the printed part-of the order. 
 
 3. As the plaintiffs' agent knew that the 
 engine was required by the defendants to 
 drive a particular separator, and that the 
 defendants relied on his skiU and judgment 
 as to its fitness for that purpose, and as 
 the engine was an article of a description 
 which it was in the course of the plaintiffs', 
 business to supply, there was, apart from 
 any representations of the agent, an im- 
 plied condition (under sub-section (a) of 
 section 16 of the Sale of Goods Act, 
 R.S.M. 1902, c. 152) that it would be 
 reasonably fit to drive the separator. 
 
 Chanter v. Hopkins, (1838) 4 M, & W. 
 399, distinguished. 
 
 This action was brought to recover the 
 amount of a judgment of an Ontario 
 Court against defendants in respect of 
 notes given for an engine. These notes 
 contained a provision that, in case of 
 default, the makers, who were residents 
 of Manitoba, might be sued in Ontario 
 upon them. 
 
 Qucere, whether such a consent to the 
 jurMiction of a foreign court would not 
 be recognized by international as well as 
 by municipal law: Copin v. Adamson, 
 (1874) L.R. 9 Ex. 345. 
 
 As, however, the defendants succeeded 
 upon a defence to the original cause of 
 action which they were entitled to raise 
 in this action on the authority of Hickey 
 V. Legresley, (1905) 15 M. R. 304, it be- 
 came unnecessary to decide this question. 
 New Hamburg Manufacturing Company v. 
 Shields, 16 M. R. 212. 
 
 XV. Miscellaneous Cases. 
 
 1. Agreement to enter into an 
 agreement for purchase of land — Des- 
 cription — Recovery of money paid on 
 account. 
 
 1. An agreement to purchase one of a 
 number of parcels of land sufficiently 
 described to be selected by the purchaser 
 is not 'void for uncertainty of description 
 and, after the selection has been made, 
 the purchaser wUl be bound by the agree- 
 ment. 
 
 2. There is, however, no binding con- 
 tract when the writing signed appears to 
 be only an agreement to enter into a 
 formal contract for purchase of the land 
 to be prepared in the future, although it 
 
223 
 
 ICONTEACT. 
 
 224 
 
 sets forth the term? agreed on as the 
 basis of such formal contract. 
 
 Frost V. Moulton, (1856) 21 Beav. 596, 
 followed. 
 
 3. Where such formal contract sub- 
 mitted to the purchaser was not in 
 accordance with the preliminary agree- 
 ment which he had signed, but he had 
 kept it a long tim^ and tried to deal with 
 the land as his own and had not objected 
 to the terms of the contract or to the 
 nature of the plaintiffs' equitable title, it 
 was held that he was not entitled to 
 recover back money which he had paid 
 on account of the purchase. 
 
 Semble. The defendant may yet be 
 entitled to the return of the money, if the 
 plaintiffs do not within a reasonable time 
 ^et in the title contemplated by the pre- 
 liminary agreement and prepare and 
 tender a formal agreement as provided for, 
 but not if he rests his defence solely on 
 the ground that the agreement he signed 
 is vague and uncertain and insufficient 
 under the Statute of Frauds. Anglo Can- 
 adian Land Co. v. Gordon, 19 M. R. 201. 
 
 2. Agreement of contractor with 
 proprietor to pay fixed wages to work- 
 men. .,*.^r^.iiAm,m^Ji 
 
 The plaintiffs, as part of their contract 
 for the performance of certain work for 
 tte defendants, agreed to pay the work- 
 men employed wages at certain minimum 
 rates fixed by what was known as "the 
 fair wage schedule," but the defendants 
 agreed to pay for the work from time to 
 time, as the work should progress, the 
 amounts certified to be due by the City 
 Engineer. The plaintiffs sued for the 
 amount of one of these certificates. 
 
 Held, that the defendants could not 
 keep back out of such aniount anything 
 by reason of the plaintiffs having failed 
 to pay their worlnnen according to the 
 "the fair wage schedule." 
 
 Semble, the defendants' engineer might, 
 on ascertaining the fact, have been justi- 
 fied in withholding the progress estimate, 
 in which event it might have been difficult 
 for the plaintiff to recover withoiit first 
 paying the wages on the basis of the fair 
 wage schedule. 
 
 Held, however, that the defendants 
 were entitled to nominal damages on 
 their counterclaim for the plaintiffs' breach 
 of contract in not paying the wages agreed 
 on, with costs incident to the counter- 
 claim. Kelly V. Winnipeg, 18 M. R. 269. 
 
 3. Collateral agreement as to se- 
 curity for payment. 
 
 ' The defendant entered into an agree- 
 ment under seal with A., whereby the 
 defendant for a Certain remuneration 
 agreed to cut cordwood on certain lands 
 and haid and dehver it at a certain place. 
 The remuneration not having been paid, 
 the defendant claimed to hold the wood 
 under a collateral parol agreement by 
 which it was 'stipulated that, in case of 
 default, the defendant should be entitled 
 to such security. In replevin ^by a pur- 
 chaser from A. of the wood. 
 
 Held, that evidence of the parol agree- 
 ment was not admissible, (DuBtrc, J., 
 dissenting.) McMillan v. Byers, 4 M. R. 
 76. 
 
 Reversed 15 S.C.R. 195. See next case. 
 
 4. Collateral verbal agreement— Ad- 
 
 missibUity of evidence of — Work and labor — 
 Security — Dien. 
 
 By an agreement in writing B. con- 
 tracted to cut for A. a quantity of wood 
 and haul and dehver the same at a time 
 and to a place imentioned, A. to pay for 
 the same on dehvery. The' agreement 
 made no provision for securing to B. the 
 payment of his labor, but when it was 
 drawn up there was a verbal agreement 
 between the parties that in default of 
 payment by A. the wood could be. held 
 by B. as security and be sold for the 
 amount of his claim. 
 
 Held, reversing the judgment of the 
 court below, Hbney, J., dissenting, that 
 evidence of this verbal agreement was 
 admissible on the trial of an action of 
 replevin for the wood by an assignee of 
 A., and that its effect was to give B. a 
 Hen on the wood for the amount due him. 
 McMillan v. Byers, 15 S.C.R. 194. 
 
 5. Construction of statute — Retro- 
 spective legislation — Implied covenant— Lien 
 ■on hind — Statute of Limitations. 
 
 The plaintiffs claimed a lien on certain 
 lands of defendants for the balance of the 
 price of an engine sold to them in 1885, 
 under a written contract signed by the 
 defendants under seal, by which they 
 agreed to purchase the engine for a certain 
 price and to give their promissory notes 
 .therefor, and that the notes should be a 
 charge on the lands in question. After 
 the making of the contract, the parties 
 agreed to substitute a second-hand engine 
 at a lower price for the one described in 
 the contract. There was no covenant or 
 express promise to pay the money in the 
 
225 
 
 CONTRACT. 
 
 226 
 
 contract, and the claim on the notes was 
 barred by the Statute of Limitations. 
 The plaintiff company was not licensed 
 under the Foreign Corporations Act, R. 
 S. M., c. 24, s. 13, to take, hold or acquire 
 any real estate in this Province. 
 
 Held, (1) That this statute had no 
 retrospective effect and could not be 
 construed so as to prevent the plaintiffs 
 from realizing a charge on lands which 
 they had acquired before it was passed. 
 
 (2) That, the contract being imder seal 
 and showing an intention to enter into an 
 arrangement to pay the purchase money 
 of the engine, the plaintiffs' right of action 
 for the money would not be barred imtil 
 the expiration of ten years from the time 
 it first accrued, nptwithstanding that the 
 remedy on the notes was barred. 
 
 The promissory notes referred to, being 
 put in evidence, appeared by the iadorse- 
 ments to have been held by a bank at 
 maturity, and defendants claimed that 
 the right of action was not in the plaintiffs, 
 but they had not raised this defence by 
 their pleadings or at the trial. 
 
 Held, that effect should not be given 
 to it now, as plaintiffs might have been 
 able to show that the notes had only been 
 indorsed for collection, or had been taken 
 up since by them. Waterovs Engine Works 
 Co. V. WUson, 11 M. R. 287. 
 
 Distinguished Abell Engine Co. v. 
 Harms, 16 M. R. 547. 
 
 6. Construction of Covenants — 
 
 Whether dependent or independent. — Sale 
 of land. 
 
 The plaintiff's claim was for payment 
 of the balance of the purchase money of 
 land under an agreement of sale in the 
 usual form in which the purchaser cov- 
 ■ enanted that he would well and truly pay 
 . '. -. . the said sum of money together 
 with the interest thereon on the days and 
 times mentioned, and the vendor cov- 
 enanted that in consideration of the 
 purchaser's covenant ^nd on payment, 
 etc., he would convey and assure or cause 
 to be conveyed and assured to the pur- 
 chaser, his heirs and assigns, by a good 
 and sufficient deed in fee simple, etc., the 
 said piece or parcel of. land freed and 
 discharged from aU incumbrances. 
 
 Held, following Macarthw v. Leckie, 
 (1893) 9 M. R. 110, that the two covenants 
 were independent and that the defendant 
 was bound to pay the purchase money 
 before he could call on the plaintiff to 
 convey the property, and that it was not 
 
 necessary for the plaintiff to prove the 
 tender of a conveyance or to allege that 
 he was ready and willing to convey, 
 although it appeared that the property 
 was subject to two mortgages. 
 
 With the plaintiff's consent, the de- 
 fendant's purchase money was ordered to 
 be paid into Court so that the incum- 
 brances could be discharged out of it and 
 only the balance paid to the plaintiff. 
 Sword V. Tedder, 13 M. R. 572. See - 
 
 COVENANTS. 
 
 7. Drunkenness. 
 
 Drunkenness is not a ground for setting 
 aside a contract, if it caused excitement 
 only and did not rise to that degree which 
 may be caEed excessive drunkenness. 
 Vivian v. ScobU, 1 M. R. 125. 
 
 8. Guaranty — Counter-bond of guaranty 
 — Authority of manager for Canada of 
 English Insurance Company to bind the 
 company by indorsement on bond — Con- 
 sideration. 
 
 Plaintiffs had given a bond to the 
 Municipal Commissioner dated 1st . May, 
 1904, to insure the faithfulness and 
 honesty of the defendant Cornish as 
 -treasurer of the Rural Municipality of 
 Brokenhead for a term of three years in 
 the sum of $3000, and the premium for 
 the three years' insurance was paid in 
 advance. 
 
 On March 3rd, 1905, the Company gave 
 notice, in accordance with a provision of 
 -the bond, cancelling the guarantee at the 
 expiration of three months, whereby the 
 Uability of the Company was confined to 
 any drfaJcations of Cornish prior to 3rd 
 June, 1905. 
 
 This action necessitated the vacating 
 by Cornish of his position as treasurer; 
 but, on it being intimated to the Council 
 that the Company would re-instate 
 Cornish on the bond if they got a satis- 
 factory counter securitjr bond, the other 
 defendants agreed to give such security, 
 and the Council voted to re-appoint 
 Cornish. 
 
 The manager of the Company for 
 Canada, Mr. Alexander, then had pre- 
 pared a form of counter security bond for 
 the defendants to sign, and, after it was 
 returned- to him signed, he sent to the 
 Municipal Commissioner a document 
 signed by. himself purporting to be an 
 indorsement on the original bond re- 
 instating Cornish for a guarantee of $3000 
 dating from 3rd June, 1905, to 1st May, 
 1907. 
 
227 
 
 'CONTRACT. 
 
 228 
 
 The defendants were not asked to 
 secure the Company by their counter 
 bond against past defalcations and did 
 not know that there were any such, and 
 the wording of their counter bond did not 
 clearly show that it was intended to 
 secure the Company against past defal- 
 cations of Cornish. 
 
 Shortly afterwards the Company was 
 obliged to pay the amount of its original 
 "bond to the Municipal Commissioner in 
 respect of defjllcations of Cornish com- 
 mitted prior to 3rd June, 1905. They 
 then sued defendants upon the counter 
 bond. 
 
 Held, that, under all the circumstances, 
 defendants were not liable, as their bond 
 should be held to have relation only to 
 the liability' of the Company under its 
 re-instating contract, and not to that 
 under the cancelled bond. 
 
 Held, also, that, as -there was no 
 evidence that Mr, Alexander had authority 
 from the Company to make the indorse- 
 ment he gave, the plaintiffs had failed to 
 establish that they had continued the 
 guarantee bond previously in existence, 
 and consequently there was a total absence 
 of consideration for the defendants' 
 counter bond, and for that reason also 
 they were not liable upon it. London 
 Guarantee and Accident Co. v. Cornish, 17 
 M. R. 148. 
 
 9. Hiring and service — Quantum mer- 
 uit — Leaving service before expiration of 
 term. 
 
 The plaintiff's claim was for four 
 months' wages. He swore that the hiring 
 was by the month at $17 per month, but 
 defendant stated that the hiring was for 
 a definite period of eight months for $130, 
 no time having been fixed for payment, 
 and his account was corroborated by a 
 witness who was present when the bargain 
 was made. 
 
 Plaintiff left the service of defendant 
 after four months without his consent 
 and without any valid reason or excuse. 
 
 Held, ioWowmg Smith V. Hughes; (1871) 
 L. R. 6 Q. B. 597, that the plaintiff was 
 bound by his bargain, even if he had 
 misunderstood the legal effect of it, and 
 could not recover anything for his services 
 without fully completing his contract. 
 
 €utter V. PoweU, (1795) 2 Smith's L~ C. 
 1, and Britain v. Rossiter, (1879) 11 Q. B. 
 D. 123, followed. Knox v. Munro, 13 
 M. R. 16. 
 
 10. Intention ascertainable only 
 from wor(^ and acts of contracting 
 party. 
 
 If a man's words or acts, judged by a 
 reasonable standard, manifest an intention 
 to agree in regard to any matter; that 
 agreement is established, and it is im- 
 material what may be the real but imex- 
 pressed state of his mind on the subject. 
 
 The defendants, in authorizing a Mr. 
 Bristow to employ a contractor to perform 
 certain repairs to their building, supposed 
 that he was the local agent of their 
 architect Stone of Montreal to whom 
 they had complained of certain defects in 
 his plans necessitating such repairsj and 
 supposed that Stone had recognized his 
 UabiUty for such defects and had author- 
 ized Bristow to have the repairs made. 
 Stone had not, however, given any such ^ 
 instructions to Bristow and Bristow had 
 in fact ceased to be in Stone's employment 
 sonaeweeks before the defendants arranged 
 with him ibout the repairs. 
 
 Bristow employed the plaintiff who in 
 good faith did the work without any 
 notice or knowledge of what was in the^ 
 minds of the defendants' officers. 
 
 Held, that the defendants were liable 
 to the plaintiff for the cost of the work. 
 Watson V. Manitoba Free Press Co., 'IS 
 M. R. 309. 
 
 11. Order for chattels given under 
 seal — Covenant to give mortgage on land in 
 statutory form to secure purchase money — 
 Nature of relief to which covenantee en- 
 titled — Bight' of offerer to withdraw from 
 purchase before acceptance — Vendor's rem- 
 edies when purchaser refuses to complete 
 purchase — Bight of action for price of 
 goods when property in them has not passed 
 to the purchaser. 
 
 1. An order for the supply of goods 
 ex6!uted under seal is not revocable before 
 acceptance as an ordinary order might be: 
 Xmos V. Wickham, (1866) L.R. 2.H.L. 
 296; and Waterous v. Pratt, (1899) 30 
 O.R. at 541; and,' if the goods have been 
 supplied, the vendor may sue for the 
 price which the purchaser has covenanted 
 to pay, notwithstanding the purchaser 
 has attempted to cancel the order, re- 
 turned the goods and refuses to carry out 
 the purchase. In such a case the vendor 
 is not restricted to an action for damages 
 for the breach of contract. 
 
 Wateroits Engine Works v. Wilson, 
 (1896) 11 M.R. 287, and Sawder v. Rob- 
 ertson, p900) 1 O.L.R. 297, followed. 
 
229 
 
 CONTRACT. 
 
 230 
 
 When the contract provides that, if 
 the purchaser should refuse to accept the 
 goods or give the notes stipulated for, the 
 whole purchase money shall become due 
 and payable forthwith, the purchaser may 
 be sued for the whole price in either of 
 said events, notwithstanding that the 
 property in the goods has not passed to 
 him by reason of a provision that the 
 ownership of, and title to, the goods 
 should remain in the vendor until the 
 purchase price be fully paid. 
 
 The contract ih this case further 
 provided that, for the purpose of securing 
 payment of the price of the machinery, 
 the defendants would deliver to the 
 plaintiffs a mortgage on certaiji land in 
 the statutory fxjrm. 
 
 Held, that it should be declared that 
 the plaintiffs have aji equitable mortgage 
 on the lan4 to secure the money and that, 
 as the whole amount was now due and 
 payable, the plaintiffs should have the 
 ordinary judgment for foreclosure or sale, 
 as they may elect, with the usual inquiries, 
 taking of accounts &c., as in the case of 
 an ordinary mortgage with the statutory 
 covenants, giving the defendants the 
 statutory time, twelve months, to redeem; 
 but that they were not entitled to a 
 decree containing the usual provisions for 
 the sale of the land by the more summary 
 process to satisfy their lien or charge; and 
 it was not necessary to require the actual 
 execution of a mortgage by the defendants 
 in order to give the ^plaihtiffs full relief. 
 Gmr Scott Co. v. Ottoson, 21 M. R. 462. 
 
 12. Penalty or liquidated damages. 
 
 A contract for the sale of 1500 tons of 
 coal to be paid for in car load lots as 
 ordered within a fixed period contained 
 the following provision: "And for the 
 insuring of the more effectual performance 
 of this agreement, the purchasers further 
 agree to pay to the vendors * * * * the 
 sum of one doUar as a penalty by way of 
 liquidated damages for every ton of the 
 said full amount not ordered and paid for 
 by them on the first day of April, 1907." 
 
 Held, that the contract should be con- 
 strued as providing for the payment of $1 
 per' ton as a penalty only and that, as the 
 plaintiffs had suffered no damages from 
 the refusal of the defendants to take the 
 whole 1500 tons, they could recover 
 nothing. 
 
 Willson V. Love, [1§96] 1 Q. B. 626, 
 Hudson on Building Cofttracts, 519; Jm^ce 
 on Damages, par. 1298, 1300, 1301; Mayne 
 on Damages, 155; 19 Am. and Eng. En^. 
 
 402., followed. Brock V. 
 Co., 17 M. R. 351. 
 
 Royal Lumber 
 
 13. Promise to devise interest in 
 land — Part performance — Statute of 
 Frauds, s. 4 — Will — Lapse of devise to 
 party who predeceased testator — Acceptance 
 \ of offer by conduct — Representation in- 
 fluencing conduxi. 
 
 The plakitiff was an illegitimate 
 daughter of D. C. Kinsey who Lived in 
 Winnipeg with her mother until the 
 plaintiff was about six years old, when 
 the parents separated, the plaintiff going 
 abroad with her mother, who died in 1897. 
 
 In 1899, correspondence ensued between 
 the plaintiff and her father which resulted 
 in the plaintiff returning to live with her 
 father in Winnipeg until his death in 
 1903, leaving no will except one made in 
 1881 by which he had left atthis property 
 to David Young, his heirs, executors, 
 administrators and assigns. David Young 
 died in 1887. It did hot appear that 
 Kinsey had any relatives living except - 
 the plaintiff.^ 
 
 Upon the facts proved in evidence and 
 fuUy set out, the trial Judge found 
 that there was a definite offer by Kinsey 
 in writing that, :if plaintiff would come to 
 him and live with him as his daughter, he 
 would keep her and leave all his property 
 by will to her, that the offer was accepted 
 in writing, though not in formal terms 
 and also by acts and conduct, that 
 plaintiff had fully performed her part of 
 the contract, and that the fact that 
 Kinsey had not made the promised will 
 should be attributed to mere negligence 
 and procrastination. ♦ 
 
 Held, that plaintiff was entitled to th^ 
 assistance of the Court by way of specific 
 performance of the agreement, notwith- 
 standing the want of mutuality, which is 
 not material after the one party has 
 performed completely aU he had under- 
 taken to do. 
 
 Fry on Specific Performance, pars. 465, 
 468; Fitzgerald y.' Fitzgerald, (1873) 20 Gr. 
 410; McDonald v. McKinnon, (1878) 26 
 Gr. 12, and Roberts v. Hall, (1877) 1 O.R. 
 388, followed. 
 
 Complete performance by one party 
 entitles him to enforce a contract against 
 the opposite party notwithstanding the 
 Statute of Frauds :McDoruiW v. McKin- 
 non, (1878), 26 Gr. 12; Halleran v. Moon, 
 (1881) 28 Gr. 319; RidUy v. Ridl&y, 
 (1865) 34 Beav. 478, and Loffus v. Maw, 
 (1862) 3 Giff. 592. 
 
231 
 
 CONTRACT. 
 
 232 
 
 Maddism v. Alderson, (1883)- 8 A.C. 
 467; Walltier v. Boughner, (1889) 18 O.R. 
 448; Cross v.Cleary, (1898) 29 O.R. 542, 
 and McGugan v. Smith, (1892)^ 21 S.C.R. 
 263, distinguished, the last three cases on- 
 the groimd that, in each of them, the 
 deceased with whom the agreement was 
 alleged to have been made had clearly 
 shown his intention in regard to it by 
 subsequently making a will contrary to 
 the terms thei:eof . 
 
 The two executors named in Kinsey's 
 ■ will of 1881 also predeceased the testator, 
 and the defendants, the National Trus't 
 Company, had taken out , letters of ad- 
 ministration of the estate' of Kinsey with 
 that wiU annexed. The executors for the 
 will of David Young were also made 
 parties defendant in this" action. 
 
 Held, following Jarman on Wills, pp. 
 307, .308, and Williams on Executors, pp. 
 1072, 1074, that the bequest and devise 
 to David Young lapsed on his death in 
 the lifetime of the testator. 
 
 Order for judgment giving the whole 
 estate to the plaintiff. Kinsey v. Na- 
 tional Trust, 15 M. R. 32. 
 
 14. Restraint of trade — Specific de- 
 livery of chattels — Specific performance of 
 covenant^ and of an express trust — Affirma- 
 tive and negative covenants. 
 
 Specific performance of a covenant to 
 act as the agent of another will not be 
 enforced. 
 
 A. covenant not to "handle" a certain 
 class of goods during a specified term of 
 years is void, as being in undue restraint 
 of trade, there bejng no limitation of 
 territory, f he language was also held to - 
 be too vague and uncertain to enable the 
 Court to order an injunction against the 
 defendant in the terms of the covenant. 
 Where there is an affirmative covenant 
 in an agreement and the parties have 
 themselves settled and set out in the 
 contract what the defendant is not to do, 
 no further negative covenants will be 
 implied from the affirmative one. 
 
 Order made for the d'elivery over by 
 the defendant to the plaintiff of certain 
 orders for pictures taken by defendant as 
 agent of the plaintiff from customers under 
 the circumstances set out in the statement, 
 and for the taking of an account of the 
 dealings between the parties. Bentley v 
 Bentley, 12 M. R. 436. 
 
 16. Sale of crop of hay to grow 
 during ensuing seaaon-t-Subseqiient sale 
 of land to a third party with knowledge of 
 
 purchaser's right to hay — Breach of ccm- 
 tractf—Sale of Goods Act, B.S.M. 1902, c. 
 152, s. 2 (fi) — Interest in lanJd. 
 
 In March, 1910, the defendant sold to 
 the plaintiff the crop of wild hay to grow 
 during the enstiihg season on a certain 
 quarter section of land and received pay- 
 ment therefor in fuU. She shortly after- 
 wards sold and conveyed the land by 
 transfer under The Real Property Act to 
 one Savage without any reservation, 
 though she informed Savage of the prior 
 sale of the hay to the plaintiff. Savage 
 obtained a clear certificate of title to the 
 property before the hay was ready to cut, 
 and he prevented the plaintiff from getting 
 any of it. 
 
 Held, that, whether or not the plaintiff 
 .could have any right of action against 
 Savage, the defendant, having by her own 
 act disabled -herself from performing the 
 contract with the^ plaintiff, was liable_ to 
 - the plaintiff in damages for the breach of 
 it: Leake on Contracts, 5th ed. p. 617. 
 
 Held, also, that, as the thing sold does 
 not come upder the definition oLthe word 
 "goods" given in the Sale of Goods Act, 
 the right given to the plaintiff was an 
 interest in land similar to that discussed 
 in Decock v. Barrager, (1909) 19 M.R. 34, 
 and the case of Fredkin v. Glines, (1908)' 
 18 M.R. 249, did not apply. Sharpe v. 
 Dundas, 21 M. R. 194. 
 
 16. Signature by person unable to 
 read — Verbal agreement — Sale of Goods 
 Act, R.S.M. 1902, c. 152, s. 20, Rule 4. 
 
 When a njfin capable of reading and 
 understanding, a document, and having an 
 opportunity to do so, affixes his signature 
 to it, though without reading it, he should 
 be held bound by its contents. But that 
 rule does not apply when a man incapable 
 of reading a. document is induced to sign 
 it by a representation that it is an entirely 
 different document. 
 
 The plaintiff's agent, in negotiating the 
 sale to the defendant of a second hand 
 threshing outfit, assured him that the 
 separator was in first class condition and 
 would do first class work and, if not, he 
 should be at liberty to return it. The 
 defendant agreed to take it upon these 
 terms and, not being able to read English, 
 signed the usual order' form upon being 
 assured by the agent that it was a paper 
 showing the bargain made. 
 
 Held, that the defendant was not 
 bound by anything contained in the order 
 which was An addition to or inconsistent 
 with the verbal agreement made between 
 
233 
 
 CONTRACT FOR WORK AND MATERIALS. 
 
 234 
 
 the plaintiff's agent and himself, and that 
 he had a right to return the machines 
 when he found that they were not as 
 represented, and to have the -promissory 
 notes he had given deUvered up and can- 
 celled as, under Ruje 4 of section 20 of 
 the Sale of Goods Act, R.S.M. 1902, c. 
 152, the property in. the goods had not 
 passed to the defendant. American Abell 
 Engine Co. v. Tourmd, 19 M. R. 660. 
 
 See Agreement for Sale op Land, 2. 
 
 — • Ambiguity. 
 
 — Arbitration and Award, 2. 
 
 — Bills and Notes, VIII, 8. 
 
 — Bdilding Contract, 1, 3, 7. 
 
 — Company, II, 1; IV, 1. -- 
 — ■ Corporation, 3. 
 
 — Distress for Rent, 1. 
 
 — Evidence. 
 
 — ■ Illegality, 4. 
 
 — Misrepresentation, III, 4. 
 — ■ Municipality, VI, 1. 
 
 — ■ Negligence, VII, 6, 7. 
 
 — Pleading, XI, 5, 8, 17. 
 
 — ■ Principal and' Agent, III, 2. 
 
 — Railways, V, 1. 
 
 — Trial. 
 
 — ■ Vendob and Purchaser, I: VI; VII, 
 6, 10. 
 
 — Winding-up, IV, 1. 
 
 CONTRACT FOR WORK 
 AND MATERIALS. 
 
 See Sale op Goods, VI, 6. 
 — Warranty, 4. 
 
 CONTRACT OR TORT. 
 
 See Pleading, XI, 6. 
 
 CONTRIBUTION. 
 
 See Principal AND Surety, 1. 
 
 CONTRIBUTORIES. 
 
 See Examination op Judgment Debtor, 
 
 3. 
 See Winding-up, IV, 1, 8. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 See Automobile. 
 
 — Hotel Keeper. 
 
 — • Lord Campbell's Act, 3. 
 
 — Municipality, III, 1. 
 
 — Negligence, I; V, 1, 3; VI, 5. 
 
 — Railways, IV, 3; VII, 1; VIII. 
 
 CONVERSION. 
 
 CONVEYANCE ABSOLUTE IN FORM 
 BUT GIVEN AS SECUMTY. 
 
 Evidence — Intention, character of evi- 
 dence of. 
 
 To induce a court to declare a deed, 
 absolute on its face, to have been intend- 
 ed to operate as a mortgage only, the 
 evidence of such intention must be.of the 
 clearest, most conclusive and unquestion- 
 able character. McMicken v. Ontario 
 Bank, 20 S. C. R. 548. 
 
 See Indemnity, 4. 
 
 — Mortgagor AND Mortgagee, IV, 2, 3. 
 
 CONTRACT UNDER SEAL. 
 
 See Parties to Action, 5. 
 
 CONVEYANCE OF LAND SUBJECT 
 TO MORTGAGE. 
 
 See Indemnity, 4. 
 
 CONTRACTOR AND 
 SUB-CONTRACTOR. 
 
 See Negligence, VII, 5. 
 — Parties to Action, 10. 
 
 CONVEYANCING PRACTICE. 
 
 See Vendor and Purchaser, VIII, 3. 
 
235 
 
 CONVICTION. 
 
 236 
 
 CONVIQTION 
 
 1. Certiorari — Appeal from order grant- 
 ing — Necessary material — Verifying order 
 — Sufficient return to writ of certiorari — 
 Return by two Justices when conviction by 
 three — Conviction of receiving stolen goods — 
 Sufficiency cf evidence — Agreement to pay 
 damages and not to appeal — Costs against 
 private prosecutor. , 
 
 On an appeal against an order made in 
 > Chambers granting a writ of certiorari, a 
 prcecipe setting down the appeal was 
 filed with the Prothonotary, but the 
 pjjoceedings in Chambers, the affidavits 
 and other documents upon which the 
 order was made were not brought into 
 Term, nor was the order, or a copy of it, 
 verified in a;iy way. 
 
 Held, that an objection that the papers 
 
 and proceedings were not properly brfore 
 
 -the Court was fatal, and the appeal 
 
 dismissed, with costs. 
 
 ^ A return to a writ of certiorari made by 
 
 _^ one or two of several convicting Justices, 
 
 ^ provided they, having the record in their 
 
 custody, can return it, is a sufficient 
 
 return. x 
 
 L. was convicted before three Justices 
 of the Peace of receiving stolen goods, 
 viz., one bedstead, knowing the same to 
 be stolen. ' The bedstead was of about 
 the value of 11.25. He took it openly, 
 and in the day time, from a room occupied 
 by himself until then. This room was 
 opposite one in which the prosecutor was 
 at the time. He asked one G., to assist 
 Viim in taking it to pieces for the purpose 
 of removing it. It was left at the door, 
 outside, before it was placed on the waggon 
 in which it was removed. The prosecutor 
 ^ assisted an loading some of the things to 
 be removed, when the bedstead was in 
 the waggon, at the bottom of the load, 
 but it did not appear whether he saw it. 
 When questioned about it afterwards by 
 the prosecutor, L. admitted having it in 
 his possession, but claimed that it was his 
 properljr. When convicted, and threat- 
 ened with imprisonment, he was induced, 
 in. consideration of not being sent to gaol, 
 to agree in writing'to return the bedstead 
 within forty-eight hours, to pay all costs 
 . of the Comt, and $50 damages, and not 
 to appeal against the conviction. He 
 returned the bedstead within the time 
 agreed upon. 
 On motion to quash the conviction: 
 Held, that the conviction must be 
 quashed, there being no evidence of any 
 
 felonious intent on the part of L. in any- 
 thing he did. 
 
 Held, also, that the whole proceediogs, 
 arrest, trial and conviction, were a gross 
 abuse of criminal process, for the purpose 
 of obtaining an undue advantage in a 
 most trivial matter. 
 
 The private prosecutor was ordered to 
 pay the costs. 
 
 The conduct of the Justices in being 
 parties to such an outrageous agreement 
 commented on. 
 
 Beg. V. Young, 5 O. R., 400, and Reg. 
 V. -Kennedy, 10 0. R., 398, approved. 
 Reg. V. Lacoursiere, 8 M. R. 302. 
 
 2. Habeas corpus — Rule nisi. 
 
 A rule to quash a conviction may, in 
 the first instance, be to show cause why a 
 writ of habeas corpus should not issue, 
 "and why, in the.event of the rule being 
 made absolute, the prisoner should not be , 
 discharged out of custody without the ' 
 iss}iijng of the said writ, and without his 
 bemg'brought before the Court." 
 
 The rule may at the same time ask for 
 a writ of certiorari as well as of habeas 
 corpus. 
 
 A warrant of commitment which recites 
 a conviction must show upon the face of 
 the recited conviction that the offence was 
 one over which the coromitting magistrate 
 had jurisdiction. 
 
 Where, therefore, the conviction was 
 for obtaining $12 by false pretences, and 
 by statute the convicting magistrate 
 could only convict and pass sentence in 
 case the prisoner pleaded guilty, and the 
 conviction did not show that the prisoner 
 had so pleaded. ' 
 
 Hfild, that the conviction ought to be 
 quashed. Reg. v. Collins, 5 M. R. 136. 
 
 3. Masters and Servants Act. 
 
 A conviction under The Masters and 
 Servants Act was quashed on the ground, 
 inter alia, that the complaint was made 
 more than a year after the cause of it 
 arose, the Act requiring such complaints 
 to be made within six months from the 
 offence charged. Merritt v. Rossiter, T. 
 W., 1. 
 
 4. Selling liquor without license — 
 
 Onus of proof. 
 
 1. The prosecution need not prove the 
 absence of a license. The onus is on the 
 prisoner to prove its existence. 
 _ 2. A commitment must agree substan- 
 tially with the conviction. Formal var- 
 
237 
 
 CORPORATION. 
 
 238 
 
 iances are not fatal. > Thus where the 
 defect in the convictioli was in reciting 
 that the defendant was adjudged to pay 
 a fine, and in default to be imprisoned and 
 kept at hard labor {hard labor not having 
 been awarded), but the operative part 
 made no reference to hard labor, 
 
 Held, to be unobjectionable upon 
 habeas corpus. 
 
 3. A conviction adjudged imprisonment 
 in default of pa3rment of the fine and 
 costs "and charges of conveying her to 
 the common gaol, amounting to the 
 further sum of — dollars." Held, in- 
 valid, and the prisoner was discharged. 
 Reg. V. Bryant, 3 M. R. 1. 
 
 6. Veterinary Surgeon - 
 
 raised upon Certiorari — Waiver of irregvi- 
 larities by appearance — Imposition of unr 
 ■warranted costs. ' 
 
 A. B. was convicted of practising as a 
 veterinary surgeon without the proper 
 qualification. 
 
 Held, that the conviction was good, 
 although it did not allege any particular 
 act done. 
 
 An objection of res judicata caimot be 
 urged upon certiorari S not taken before 
 the magistrate. 
 
 The absence of a formal adjournment 
 of the proceedings before a magistrate may 
 be waived hy subsequent appearance. 
 
 A conviction stated the offence to hsCve 
 been committed in the County of Norfolk. 
 The information charged the offence as 
 in the MunicipaUty -of North Cyjjress in 
 the County of Norfolk in the Province of 
 Manitoba. By statute the Municipality 
 of North Cypress was in the County of 
 Norfolk. In the absence of any affidavit 
 denying that the magistrate had juris- 
 diction, 
 
 Held, that an objection that no offence 
 within the Province had been shewn was 
 untenable. 
 
 Costs unwarranted by statute having 
 been imposed. 
 
 Held, that the conviction was bad. Re 
 ">, 6M. R. 472. 
 
 See BALiiOT Box Stuffing. 
 
 — Cbktiorari, 1, 3. 
 
 — Cbiminal Law, XII, 1, 3; XIII, 3; 
 
 XVII, 13. 
 
 — CRIMINAIi PrOCEDUKB, 2. 
 
 — ■ LiQtroK License Act. 
 
 -~ MUNICIPALITT, VII, 4. 
 
 — Pbacticb, XXVIII, 3. 
 
 CORPORATION 
 
 1. Alteration of boundaries of school 
 district — Liability for debt. 
 
 The boundaries of the defendant school 
 district had been changed several times 
 since the issue, in 1881, of the debentures 
 sued on in this action, leaving only a 
 fraction of its original territory, and its 
 name had also been changed from the 
 "Protestant School District of Ponore" 
 to the "School District of Donore, number 
 118," under the Public Schools Act of 
 1890. 
 
 Held, that defendant was liable for 
 the debentures in question and the 
 interest thereon, notwithstanding these 
 changes. Canada Permanent Loan &, 
 
 nngs Co. v. Donore, 11 M. R. 120. 
 
 2. Borrowing money without a by- 
 law — Town Corporations Act, C.S.M. c. 
 10 — Municipal loan — Corporate seal. 
 
 The defendants were incorporated under 
 the Manitoba Town Corporations Act, 
 C. S. M. c. 10. Section 377 of that Act 
 provided that town loans, whether by 
 issue of debentures or otherwise, should ^ 
 only be made on a by-law of the council 
 to that effect. 
 
 The defendants being indebted to the 
 Ontario Bank, which was pressing for 
 payment, the town covmcU passed a reso- 
 lution referring the matter to the Finance 
 Committee with power to act. As the 
 plaintiffs held in their hands for sale a 
 large amount of the debentures of the 
 town, the Committee arranged to give 
 the Bank an order on the plaintiffs for the 
 amount of the debt. The order was 
 accordingly prepared and signed by the 
 mayor and secretary-treasurer, sealed 
 with the seal of the corporation, and sent 
 to the Bank Manager. The action of the 
 Committee was duly reported to the 
 town council, and the report was adopted. 
 The plaintiffs afterwards accepted the 
 order, and paid the amount to the Bank. 
 They then brought this action to recover 
 the amount of the order from the de- 
 fendants. 
 
 Held, that the transaction was in the 
 nature of a loan of money, and that the 
 plaintiffs could not recover without proof 
 of a by-law having been p^ed, signed 
 and published in accordance with/ the 
 provisions of sections 208, "213 and 211 of 
 the said Act, and, no such proof having 
 been given, that the plaintiffs^ must be 
 non-suited. 
 
239 
 
 CORPORATION. 
 
 240 
 
 Bemardine v. North Dufferin, 19 S.C.R. 
 681, distinguished. Macarthur v. Portage 
 la Prairie, 9 M. R. 588. 
 
 3. Contract not under seal. 
 
 While the defendant's- Municipal Coun- 
 cil was in session it verbally contracted 
 with the plaintiff for the construction by 
 him^ of a bridge on a travelled road. 
 During the work some payments were 
 made upon account, and after its comple- 
 tion a resolution was passed accepting the 
 bridge and directing payment. The coun- 
 cil aiterwards repaired the bridge and it 
 was used by the public. There was no 
 by-law authorizing the construction of 
 the road or the contract accepting or 
 dealing with the bridge. 
 , In an action for the money, 
 
 Held, that, the contract not being 
 under seal nor it or the work authorized 
 or adopted by by-law, the plaintiff^ coidd 
 not succeed. Bernardine v. North Dufferin, 
 6 M. R. 88. 
 
 Reversed, 19 S.C.R. 581. See ,next 
 case. 
 
 4. Contract not under seal—Petform- 
 ance — Adoption — Municipality — By- 
 law — Manitoba Municipal Act, 1884, s. 
 111. 
 
 A corporation is Uable on an executed, 
 contract for the performajice of" work 
 within the purposes for which it was 
 created, which work it has adopted and 
 of which it has received the benefit, though 
 the contract waa not executed under its 
 corporate seal, and this api)lies to munici- 
 pal as well as other corporations. Ritchie, 
 C.J., and Strong, J., dissenting. 
 
 In sec. Ill of the Manitoba Municipal 
 Act, 1884, which provides that municipal 
 corporations may pass by-laws in relation 
 to matters therein enumerated, the word 
 ""may" is permissive only and does not 
 prohibit corporations from exercising their 
 jurisdiction otherwise than by by-law. 
 Ritchie, C.J., and Stbonq, J., dissenting. 
 Bemardine v. North Dufferin, 19 S.C.R. 
 581. 
 
 5. Employment of counsel by City — 
 
 Acceptance of services — Liability of corpor- 
 ation on executed contract — Winnipeg Char- 
 ter, ss. 472, 258, 833. 
 
 1. The employment of counsel to 
 conduct an mquiry into any matter 
 ponnected with the good , government of 
 the City of Winnipeg, or with the conduct 
 of any part of its pubUc business, is not 
 
 one of the matters which, under section 
 472 of the City Charter, may be dealt 
 with otherwise than by by-law, although 
 the Council, by section 833, may, by 
 resolution, authorize the Judge of the 
 County Court to make such inquiry. 
 
 2. The employment of the plaintiff, a 
 barrister, to conduct such an inquiry 
 having been by. resolution of the Council 
 only, he could .not recover in an action 
 against the City for the amount of his 
 bill of costs, in the absence of some formal 
 acceptance of his work by^ the Council, 
 although he had completed it according to 
 his instructions. 
 
 Waterous v. Palmerston, (1892) 21 
 S.C.tl. 556, foUowed. 
 
 Clarke V. Cuckfield Union, (1852) 21 
 .L.J.Q.B. SiQ; Lauford v. BilUricay, [1903] 
 1 K.B. 772, and Bemardine v. North 
 DuffeHn, (1891) 19 S.C.R. 581, disting- 
 uished. 
 
 3. The Council could not, under section 
 - 258 of the Charter, delegate its powers to 
 
 a committee of the council without a 
 by-law. 
 
 4. Per HowELi,, C. J. M., and Cameron 
 J. A. There would have been no liability 
 in this case even if the work had been 
 formally accepted by the Council unless 
 
 . such acceptance were by by-law. 
 
 Huni V. Wimbledon, (1878) 4 C.P.D. 
 48, and Young v. Leamington, (1883) 8 
 A.C. 617, followed. Manning v. Win- 
 nipeg, 21 M. R. 203. 
 
 6. Employment of time keeper with- 
 out seal — Corporation — Employment — 
 Seal. 
 
 Held, a timekeeper is not such a 
 ''superior officer" that his employment by' 
 a corporation must be imder seal. Gordon 
 V. Toronto, Manitoba and North West 
 Lajid Co., 2 M. R. 318. 
 
 7. Power to borrow — Power to mort- 
 gage real estate — Ultra vires-r^onstruction 
 o/ statutes. 
 
 An agricultural society incorporated 
 under The Agricultural Societies' Act, 55 
 Vic, c. 2, (M. 1892), hks no impUed 
 power to borrow money or to mortgage 
 real estate belonging to it, notwithstanding 
 the provisions of section 9 of the Act 
 prohibiting a sale, mortgage, lease or 
 other disposition of any real property of 
 the society unless authorized at a general 
 meeWng of the society; and the district 
 registrar was right in declining to register 
 a mortgage of such a society given to 
 
241 
 
 CORRUPT PRACTICES. 
 
 242 
 
 secure a loan of money to erect buildings 
 on its real estate. 
 
 Brice on Ultra Vires, p. 122; Fisher on 
 
 Mortgages, p. 136; The Queen v. Sir 
 
 Charles Reed, (1880) 5 Q. B. D. 583, and 
 
 Blackburn Building Society v. Cunliffe, 
 
 - (1882) 22 Ch. D. 61, -followed. 
 
 Bickford v. The Grand Junction Railway 
 Co., (1877) 1 S.C.R. 696, distinguished. 
 
 Held, further, that the statute of 1899, 
 0. 24, s. 33, empowering the Mimicipality 
 of Rockwood to guarantee a loan to the 
 society, "to be effected or procured for the 
 purpose of erecting buildings and the 
 improvement of the grounds of the said 
 
 ■ society," could not be construed as giving 
 the society any power which it had not 
 before, for a misapprehension of the law 
 by the Legislature has_ not the effect of 
 
 ■ making that the law which the Legislature 
 had erroneously assumed it to be: North- 
 WesiEUctricCo.v. Walsh, (1898) 29 S.C.R. 
 33. 
 
 Re Rockwood Electoral Division Agri- 
 cultural Society, 12 M. R. 655. 
 
 ■ Distinguished, Stobart v. Forbes, 13 
 M. R. 184. 
 
 See Chimin AL Law, IX, 1. 
 
 — ExPROPEIATJONi 2. 
 
 — Gabnishmbnt, V, 3. 
 
 — Libel, 2. 
 
 — • Malicious Prosecution, 3. 
 
 — Principal and Agent, V, 1. 
 
 — Summary Conviction. 
 
 CORRUPT PRACTICES. 
 
 See Election Petition, IV. 
 
 I. 
 
 II. 
 III. 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 X. 
 
 XI. 
 
 XII. 
 XIII. 
 
 COSTS. 
 
 Appeal from Taxation. 
 Disclaimer in Mortgage Action. 
 Op former Action unpaid. 
 Of Injunction Motion. 
 Of -Proceeding Against -Over- 
 holding Tenant. 
 Scale op. 
 
 Separate Defences. 
 Separate Issues. 
 Solicitor Paid by Salary. 
 Under 7 & 8 Edward VII, c. 12. 
 Verdict for Amount within 
 Jurisdiction of County Court. 
 Witness Fees. 
 Miscellaneous Cases. 
 
 I. Appeal prom Taxation. 
 
 1. Canying in objections before 
 Master — Chamber order — Attending to 
 settle — Attending to hear judgment — Irir 
 strudions to defend. 
 
 On an appeal from a taxation of costs 
 on the equity side of the Court, it is not 
 necessary that the applicant should have 
 carried in his objections before the 
 Master; but, in the event of his succeeding 
 on the ground not taken before the 
 Master, he may be ordered to pay costs. 
 
 The costs of settUng. a Chamber order 
 allowing an appeal from the Referee as to 
 the amount of security for costs, are 
 simply the costs of an ordinary attendance 
 for the order. 
 
 On the equity side of the Court, no fee 
 is allowed to counsel or solicitor for 
 attending to hear judgment. The fee 
 with brief covers this. 
 ■ Only one fee is allowed for instructions 
 to defend, irrespective of the number of 
 defendants. No such fee is taxable as 
 instructions for answer. 
 
 It was sought to tax a fee to agents in 
 Toronto, for revising and settling an 
 affidavit of documents, on the ground that 
 the head office of the defendant bank was 
 there. The usual charges for preparing 
 the affidavit had been allowed the sohci- 
 tors in Winnipeg. 
 
 Held, that this item should not be 
 allowed. 
 
 Earl of Shrewsbury v. Trappes, 8 Jur. 
 N.. S.-586, distinguished. 
 
 Letters and telegrams sent for the con- 
 venience of witnesses out of the jurisdic- 
 tion, beyond the necessary cost gf pro- 
 curing their attendance, are not taxable. 
 
 Where the Master allowed a brief to 
 one of fhe defendants at the hearing but, 
 on appeal from the taxation, the defendant 
 claimed an increased allowance. 
 
 Held, that it was a matter peculiarly 
 within the province of the Master to 
 determine, and that his ruEng-should not 
 be disturbed. 
 
 The Master allowed only $100 for 
 counsel for defendant B., although B. had 
 obtained a judge's fiat for $15j9. SlOO 
 was the full fee charged in the bill of 
 costs, and there was no evidence that a, 
 larger fee was paid. 
 
 Held, that the Master was justified in 
 allowing only the fee of $100. 
 
 To be allowed the costs of a witness 
 attending at a trial, but not called or 
 examined, it is necessary to show four 
 things: (1) That he was a necessary and 
 
243 
 
 COSTS. 
 
 244 
 
 material witness. (2) That he was in 
 attendance. (3) What he was brought to 
 depose to. (4) The reason why he was 
 not examined. McMicken v. Ontario Bank, 
 8M. R. 513. 
 
 2. Certificate. 
 
 Held, there can be no appeal from 
 taxation until a certificate has been issued. 
 Union Bank v. Douglass, 3 M. R. 48. 
 
 V 
 
 3. Counsel fees. 
 
 Under the then present circumstances 
 of the Proviuce, (1889) the Court exercised 
 a control over the quantum of counsel fees 
 taxed by the Master. O'Connor v. Brown, 
 5 M. R. 263. 
 
 it. In County Court action — 1 
 
 /ees — Counsel fees — County Courts Act — 
 Transcript of judgment — Effect of. 
 
 There is an appeal to the Court of 
 Queen's Bench from the decision of a 
 County Court judge on taxation of costs 
 if a question of legal principle is involved. 
 
 A defendant in a replevin suit in a 
 County Court took a veterinary surgeon 
 to the plaintiff's residence, in order to 
 examine the animal in question, for the 
 purpose of giving evidence at the trial. 
 The defendant succeeded in the action, 
 and on taxation of costs the County ^ourt 
 clerk made an allowance to the vetermary 
 surgeon for his time and expenses, and to 
 the defendant for his expenses accompany- 
 ing him. This was affirmed by the 
 County Court judge on revision of tax- 
 ation. 
 
 Held, that this allowance was improper. 
 
 No counsel fee can be. allowed in a 
 Coun^, Court to any person except a duly 
 qualified barrister or attorney, and if the 
 objection is taken the onus is ' on the 
 person claiming, to prove his title to the 
 fee. 
 
 Schedule C of the County Courts Act, 
 1887, provides that "the costs must be 
 strictljr taxed according to the very letter 
 and spirit of the tariff, and before taxation 
 of witness fees the fees must be actually 
 paid, unless the iudge otherwise orders. 
 On taxation the County Court clerk 
 allowed certain witness fees, which had 
 not been actually paid. On revision of 
 taxation by the County Court judge he 
 made an order allowing them. 
 
 Held, that the County Court Judge had 
 jurisdiction to make the order. 
 
 ^Semble, where judgment has been 
 obtained in a County Court and a tran- 
 script has been obtained and filed in 
 
 another County Court or in the Court of 
 Queen's Bench, it still remains a judgment 
 of the original County ^Court. Tait v. 
 Bums, 8 M. R. 19. 
 
 6. Evidence on — Taxation of costs of 
 demurrer — Costs of application to reply and 
 demur-counsel fees — Discretion of Master 
 to increase — Tariff — Interpretation of — Ref- 
 erence of counsel fees to Judge— Effect of 
 omitting to refer—Appeal as to counsel fees. 
 
 Upon a taxation, of costs before the 
 Master, no evidence was produced upon 
 a large number of items, but the parties 
 rehed merely on the oral statements of 
 the respective attorneys, and the entries 
 in the books of the Court and of the clerk 
 in Chambers. 
 
 On appeal from the Master's taxation. 
 
 Held, that a Judge should not interfere, 
 when he has not before him the statements 
 on which the parties chose to rely, or any 
 proper evidence of the state of facts pre- 
 sented to the Master. 
 
 Held, also, that no evidence not before 
 the Master should be used on the appeal- 
 
 A plaintiff applied for and obtained 
 leave to reply and demur, and by the 
 order the costs of the appHcation were 
 made costs in the cause. Plaintiff suc- 
 ceeded on the demurrer, and the defendant 
 afterwards obtained leave to file certain 
 pleas on payment of the costs of the 
 demurrer. 
 
 Held, that the costs of the application 
 to reply and demur were not part of the 
 costs of the demurrer. 
 
 The Master for over ten years, and his 
 predecessor before that, having interpreted 
 . the proviso for taxing increased counsel 
 fees under item nine of the heading 
 "Counsel Fees" in the tariff of February, 
 1875, as applying to all previous counsel 
 fees in the tariff, as well as fees at trials, 
 and this practice having been approved, 
 by the late Chief Jiistice Wood, 
 
 Held, that, the application of the 
 proviso being somewhat ambiguous, a 
 Judge should not interfere with an inter- 
 pretation supjjorted by such long practice 
 and such high authority. 
 
 The rules as to counsel fees provide 
 that: "Where any fee is subject to be 
 increased in the discretion of the Master, 
 either party to the taxation may, during 
 its progress, require ttat such item shall 
 be referred by the Master to a Judge, 
 whose decision shall be final." 
 
 Held, that, if the parties choose to 
 allow the taxation to be closed without 
 insisting on such a reference, they should 
 
245 
 
 COSTS. 
 
 246 
 
 be takeD as electing to be bound by the 
 Master's judgment, and a Judge will not 
 interfere on an appeal from the taxation. 
 lAvingstone v. ^owand, 8 M. R. 298. 
 
 II.^DlSCLAIMBR IN MOKTGAQE AcTION. 
 
 1. Defendant not entitled to costs. 
 
 One of two defendants in a mortgage 
 case who was entitled to a one half- 
 interest in the equity .of redemption, 
 filed a disclaimer as follows: — "After the 
 service of the biU of complaint herein 
 upon me, I offered to quit claim any 
 right or interest that I had in the matters 
 in question in this^ suit to the plaintiff, 
 and the plaintiff refused to accept said 
 - offer, and I disclaim all right, title and 
 interest, legal and equitable, in any of 
 the said lands and premises, and I claim 
 to be hence dismissed with my costs of 
 suit incurred subsequently to said offer." 
 Held, upon a hearing upon bill and 
 answer, that the disclaiming defendant was 
 not entitled to costs. Manitoba Invest- 
 ment Association v. Moore, 4 M. R. 41. 
 
 2. Defendajit ordered to pay. 
 
 To a foreclosure bill alleging that the 
 defendant C. was the assignee of the' 
 equity of redemption, and was entitled to 
 redeem, the defendant C. filed a disclaimer 
 and asked to be dismissed with costs. 
 
 Held, upon a hearing to bill and 
 answer, that the defendant C. should 
 pay the costs occasioned by tte disclaimer. 
 Wilton V. Wilton, 4 M. R. 227. 
 
 III. Or FoBMEK Action Unpaid. 
 
 1. Stay of proceedings — Appearance. 
 A defendant is not entitled to a stay of 
 
 proceedings until the costs of a former 
 action for the same cause of action are 
 paid, when more than a year has elapsed 
 since the entering of appearance in the 
 former action, and no further proceedings 
 have been taken therein, and the plaintiff 
 is consequently out of Court. 
 
 Semble, an application for a stay of 
 proceedings, until the costs of a former 
 action are paid, cannot be made imtil the 
 defendant has appeared. Ewart v. Havr 
 over. 8 M. R. 216. 
 
 2. Staying ■ptoce^^anes'— Declaration 
 of rigliir—Queen's Bench Act, 1895, s. 38, 
 s-s. 5. 
 
 The plaintiff had, before the Queen's 
 Bench Act, 1895, came into force, brought 
 
 an action to recover the valiie of land 
 claimed to have been sold for taxes when 
 none were in arrear, in which action 
 defendants had recovered judgment for 
 their costs by demiu-rer to the declaration. 
 
 Plaintiff then bipught this action 
 claiming, under sub-section 5 of section 38 
 of the Queen's Bench Act, 1895, a declar- 
 ation of. ri^t to compensation and 
 damages. He had not paid the costs of 
 the former action. 
 
 Held, following Cobbett v. Warner, L. R. 
 2 Q. B. 108, that the rehefi sought was 
 substantially the same as in the former 
 action, and that proceedings should be 
 stayed until the costs of it were paid. 
 Clemons v. St. Andrews, 11 M. R. 245. 
 
 IV. Of Injunction Motion. 
 
 1. Dismissing Bill. 
 
 Pending a motion for injunction the 
 plaintiff took out a praecipe order to 
 dismiss his bUl. 
 
 Held, that the defendant's costs of the 
 injunction motion were properly taxable 
 under this order. Jenhins v. Ryan, 5 M. 
 R. 112. 
 
 2. When refused. 
 
 Upon a motion to continue an injunction, 
 which was refused, no order was made as 
 to costs. Afterwards the plaintiff's biU 
 was dismissed with costs. 
 
 Held, that the costs of the motion were 
 taxable as costs in the cause. Frontenac 
 Loan Co. \. Morice, 4 M. R. 439. 
 
 V. Of Peocebdings ag/inst Ovbbhold- 
 iNG Tenant. 
 
 1. Scale of. 
 
 The costs of proceedings under the" 
 statute with reference to overholding 
 tenants should be taxed according to the 
 scale of proceedings upon the trial of an 
 action in ejectment. City of Winnipeg v. 
 Guiler, S'M. n. 23. 
 
 2. Scale of — -Landlords ^ and Tenants 
 Act, Ii.S.M. 1902, c. 93— -Summary pro- 
 ceedings for ejectment. 
 
 The costs of a summary proceeding 
 under the Landlords and Tenants Act, 
 R.S.M. 1902, c. 93, to eject a tenant, are 
 the costs of an action in the King's Bench 
 and taxable on the same scale. West 
 Winnipeg Developmeni Company, Landlord, 
 and Smith, Tenant, 20 M. R. 274. 
 
247 
 
 COSTS. 
 
 248 
 
 VI. Scale of. 
 
 1. Amount sued for not ascertained 
 
 in any way — Superior scale. 
 
 Plaintiff sued defendants for goods 
 supplied, amounting to $224. There was 
 no evidence that the articles were made 
 or supplied at an agreed price or to show 
 that the amount claimed was ascertained 
 by the act of the parties. 
 
 Held, plaintiff entitled to superior scale 
 costs. The mere rendering an account 
 with prices stated is not ascertaining the 
 amount by ihe act of the parties. Mont- 
 gomery V. McDonald, 1 M. R. 232. 
 
 2. Judgment by detaxittr— Defendant 
 abroad. 
 
 Upon judgment by default no judge's 
 certificate for costs is necessary or proper. 
 Monkman v. Pritiie, 3 M. R. 684. 
 
 See also: Verdict poe Amount within 
 Jurisdiction op County Court, XI 
 
 BELOW. 
 
 VII. Separate Defences. 
 
 1. By same solicitors. 
 
 The bill alleged a partnership between 
 the plaintiffs and the defendants A. and 
 B.; that A. in fraud of the plaintiffs sold 
 ,out the partnership property to the 
 defendants D., E. and F.; and that the 
 defendants, the O. Bank, had upon- de- 
 post some of the moneys of the firm. 
 The prayer was for a rescission of the sale, 
 a dissolution of* the firm and the usual 
 accounts. 
 
 .D., E. and F. answered jointly and were 
 held entitled to a separate bill of costs. 
 
 A., B. and the bank answered separately 
 through the same solicitors, and were 
 represented at the hearing by separate 
 counsel. They were held entitled to one 
 bill, in which might be. charged the 
 .separate answers and counsel- fees, and 
 any services which related exclusively to 
 the defence of any one defendant. Mc- 
 Donald V. Cunningham, 3 M. R. 39. 
 
 2. Taxation. 
 
 Held, 1. That no general rule can be 
 laid, down upon the question as to the 
 taxation of separate biUs of costs to de- 
 fendants appearing by separate solicitors. 
 
 2. At the present day the Coiirt is 
 much more inclined than formerly to 
 
 insist upon parties having the same, or a 
 common, interest joining in their defences. 
 
 3. The rule as to joining in defences is 
 not limited to the cases of trustee and 
 cestui que trust, mortgagor and mortgagee, 
 assignor and assignee. 
 
 4. Residences widely separated may be 
 a reason for answering separately, J)ut not 
 for representation by separate counsel. 
 
 6. The question may be raised, as well 
 upon taxation under interlocutory orders, 
 as after decree. 
 
 A number of persons joined together 
 and purchased property in the name of a 
 trustee, who executed to the .plaintiff a 
 mortgage upon it to secure money bor- 
 rowed. Some of the purchasers joined in 
 a bond to the mortgagee to secure the 
 repayment. In a suit for sale under the 
 mortgage and for a personal order against 
 the bondsmen, an order was made post- 
 poning the hearing and ordering the 
 plaintiff to pay to the defendants the 
 costs of the day. Under this order the 
 taxing officer gave one biU of costs to A. 
 B. and C., three defendants who had not 
 signed the bond; one biU to D. and E., 
 who had executed the bond; and no bill 
 at all to F., an assignee of one of the 
 purchasers against whom no relief was 
 prayed other than the sale, and who had 
 answered consenting to a sale. Upon 
 appeal, 
 
 Held, (Affirming Dubuc, J.), That the 
 officer had exercised a proper discretion as 
 to A. B. C. p. and E.,, but that as to F., 
 the order having directed his costs to be 
 paid, he should have a bill taxed to him, 
 but as he should not have answered or 
 appeared it should be the smallest possible. 
 Balfour v. Drummond, 5 M. R. 1. 
 
 3. Set-ofE of costs — Severing defendants. 
 
 The costs of an interlocutory proceed-' 
 ing were awarded to the defendants. 
 Upon taxation one bill only was allowed 
 to the defendants "S. "and M. From the 
 taxation S. appealed^ but was unsuccessful 
 and was ordered to pay the costs to the 
 plaintiff, but no direction was then made 
 as to set-off. 
 
 Afterwards the costs under both orders 
 were taxed. The Master made no appor- 
 tionment between S. and M. of the costs 
 payable to them. The plaintiff appMed 
 to set off the costs payable by S., 
 against S.'s share of the costs payable to 
 S. and M. 
 
 Order made without costs. Balfour v 
 Drummond 5 M. R. 242. 
 
249 
 
 COSTS 
 
 250 
 
 VIII. Separate Issues. 
 
 1. Action against administrator— 
 
 Plene adminislramt. 
 
 To an action upon covenant and in 
 debt against an administrator, the de- 
 fendant pleaded as to $5,000, payment, 
 and to the whole declaration certain out- 
 standing judgments and plene adminis- 
 iravit ■proeter. 
 
 The plaintiS succeeded upon the plea 
 of payment and the defendant succeeded 
 upon the other plea. 
 
 Held, (KiLLAM, J., dissenting) affirming 
 the decision of Taylor, J., that the plain- 
 tiff was entitled to the general costs of the 
 action and the defendant to the costs of 
 the issue upon which he was successful. 
 McAHhur v. Macdonnell, 3 M. R. 629. > 
 
 ^. Apportionment of costs when 
 defendant succeeds on one issue. 
 
 Action for damages for trespass on the 
 plaintiff's land or, in the alternative, for 
 a mandamus directing the defendants to 
 place matters in train to assess the com- 
 pensation due to the plaintiff for the 
 lands taken for the purposes of the de- 
 fendants' railway. At the trial, the Judge_ 
 held that there had been no trespass but 
 that -the plaintiff was entitled to the 
 mandamus asked for. 
 
 Held, that the plaintiff was entitled to 
 the general costs of the action, notwith- 
 standing the finding against him on the 
 issue of trespass. Calvert v. C. N. R., 18 
 M. R. 307. 
 
 3. General verdict — Posteafar plaintiff 
 — Costs of issites found for unsuccessful 
 party — Costs of plaintiff entering record 
 after defendant has entered one. 
 
 When there is a general verdict for the 
 plaintiff aiid the postea is for the plaintiff 
 on the whole record, the taxing officer 
 cannot go behind this and allow costs to 
 the defendant for any issue upon which 
 he may have succeeded. His only remedy 
 is to apply to the Judge who tried the 
 cause to amend the postea. 
 
 Where a defendant has entered a 
 record and given notice of trial, the 
 plaintiff is not entitled to the costs of 
 also entering a record, but where the 
 plaintiff had done so and his record had 
 been used at the trial and the verdict 
 entered upon it, it was held too late to 
 object to the costs being allowed him. 
 Pion V. Romieux, 7 M. R: 591. 
 
 IX. Solicitor Paid by Salary. 
 
 1. Right to costs from opposite* 
 party. 
 
 The defendants' attorney was a salaried 
 officer of the Company, but by the agree- 
 ment was entitled to any costs which 
 could be taxed against opposing litigants. 
 
 Held, that the defendants were entitled 
 to tax the usual costs against the plaintiff. 
 Harvey v. C. P. R., 3 M. R. 43. 
 
 2. Right to costs from opposite 
 party. 
 
 The- defendant's soUcitor was a salaried 
 officer of the corporation. The .only 
 agreement was a by-law by which the 
 solicitor was appointed and his salary 
 fixed. No reference was made as to 
 costs which could be taxed against 
 opposing litigants and evidence of the 
 practice was excluded. 
 
 Held, that the defendants were entitled 
 to tax the usual costs against the 
 plaintiff. McLennan v. Winnipeg, 3 M. 
 R. 82. 
 
 X. Under 7 & STIdward VII, c. 12. 
 
 1. Counterclaim — King's Bench Act, 
 s. 2, s-s. (c) OS amende by s. 17 of c. 12 of 
 7 & 8 Edw. VII. 
 
 For the purpose of the taxation of 
 costs, a counterclaim was, before the 
 amendment of sub-section (c) of section 
 2 of the King's Bench Act, made by s. 17 
 of c. 12 of 7 & 8 Edward VII, providing 
 that the word "action" should include 
 suit, set-off and counterclaim, always 
 treated as a cross-action: Emerson v. 
 Guerin, 12 P.R. 399, and that amendment 
 has made no change in this respect, but 
 was passed to malce it clear that the new 
 rule limiting the amount of costs that 
 might be taxed, introduced by section 1 
 of the same statute, should apply to 
 set-offs and counterclaims as well as to - 
 actions. 
 
 The "plaintiffs, therefore, who became 
 entitled to the costs of their action and 
 of the defendant's counterclaim, were not 
 limited to $300 (outside of disbursements) 
 on both bills, but only on each separately. 
 Les Soeurs de la Charite v. Forrest, 20 M. R. 
 301.' 
 
 2. Hearing on further directions 
 after reference and report — Amendment 
 of judgment — King's Bench Act, Rules 
 638, Q39— Taxation — -Discretion of trial 
 
251 
 
 COSTS 
 
 252 
 
 Judge to make special order, allowing full 
 tfixahle costs. 
 
 At the trial of this action before 
 Mathers, C.J., K.B., a reference to the 
 Master was ordered, the plaintiff was given 
 C9sts up to and including the trial, further 
 directions and costs of the reference were 
 reserved, and t^e plaintiff was refused an 
 order under section 1 of chapter 12 of 7 
 and 8 Edward VII, allowing him to tax 
 full costs notwithstanding the statutory 
 limit of $300. At the hearing on^ further 
 
 > directions before another Judge, judgment 
 was ordered to be entered for the plaintiff 
 for a large amount and he was awarded 
 the subsequent costs, but no application 
 was made for an order as to costs under 
 said section. 
 
 Held, that, after such judgment had 
 been drawn up and entered, the Judge 
 before whom the- action was originally 
 tried c6uld not make an order for the 
 allowance under said section of costs of 
 the reference in excess of the $300 limit 
 which the plaintiff had aheaidy taxed 
 imder the first judgment, and that the 
 
 \plaintiff would have to abide by the final 
 judgment he had entered unless he could 
 have it ameAded -under Rules 638 or 639 
 of the King's Bench Act. 
 
 Qiusrej whether the " trial Judge " 
 spoken of in said section, for the purposes 
 of such an application, is not the Judge 
 who presided at the hearing on further 
 directions. Buchanan v. Winnipeg, 21 
 M. R. 101. 
 
 3. Injunction — Interlocutory motion or 
 application. 
 
 A motion for an interim injunction is 
 an interlocutbry motion or application 
 and, although an appeal from an order 
 granting it is taken to the Court of Appeal 
 and there allowed with costs, such costs 
 and aU other costs of the action payable 
 by the opposite party are limited to $300 
 and actual disbursements by section 1 of 
 the Act 7 & 8 Edw. VII, c. 12. 
 
 Section 2 of the Act only applies to 
 appeals to the Court of Appeal from the 
 final disposition of an action or proceeding 
 in the Court of King's Bench and there- 
 fore does not apply to an appeal from an 
 order granting an interim injunction. 
 Trades Bank v. Wright, 17 M. R. 695. 
 
 4. Reference to Master and further 
 directions.^ 
 
 fh.e limitation of costs provided for by 
 
 > section 1 of chapter 12 of 7 & 8 Edward 
 
 VII applies to all costs up to and inclusive 
 
 of the final determination of the action in 
 the Court of King's Bfench, and, although 
 there has been an expensive trial followed 
 by a reference to the Master and a hearing 
 on further directions, the costs of all of 
 which were given to the plaintiff and, as 
 ordinarily taxable, would largely exceed 
 said limit, the taxing officer could not, 
 without such a certificate from the trial 
 Judge as that section requires, allow the 
 plaintiff in all more than $300 and dis- 
 bursements. Buchanan v. City of Winni- 
 peg, 21 M. R. 714. 
 
 XI. Verdict for Amount within Juris- 
 diction OF County Court. 
 
 1. Action in King's Bench against 
 County Courts bailiff for wrongful 
 seizure of goods — County Courts Act, 
 B.S.m. 1902, c. 38, s. 43— Order granting 
 costs on the King's Bench scale. 
 
 Section 43 of The County Courts Act, 
 R.S.M. 1902; c. 38, allowing an action to 
 be brought m the King's Bench against 
 a County-Court bailiff for (amongst other 
 torts), wrongful seizure of goods imder 
 an execution, no matter what the amount 
 claimed, and only depriving the plaintiff' 
 of costs in case he recovers less than $10 
 damages, having been, with immaterial 
 changes, in every County Courts ' Act 
 since the first (1879), is not affected by 
 the , granting -to the County Courts , in 
 1891 of jurisdiction in claims against 
 bailiffs for torts, so that such an action 
 can, and may properly, be brought in the 
 King's Bench and, if the amount of 
 damages recovered is not less than $10, 
 although within the jmisdiction of the 
 County^ Court, the trial Judge has a 
 discretion, under chapter 12 of the 
 statutes of 1908, to allow the plaintiff 
 costs on the King's Bench scale and to 
 certify to prevent the defeildant from 
 setting off any costs, which discretion 
 wiU not be interfered with by the Court 
 of Appeal. 
 
 ShiUinglaw v. Whillier, 18 M. R. 149 
 followed. 
 
 Campbell v. Joyce, 15 W. L. R. 29, 291. 
 
 2. Certificate against set-off of costs. 
 
 Section 133, sub-section 2, of the Ad- 
 ministration . of Justice' Act of 1885, as 
 amended by 49 Vic, c. 35, s. '17, requires ' 
 that a Judge must find, before he is 
 warranted in giving a certificate to prevent 
 a set-off of costs, that "the plaintiff had 
 reasonable _ ground for believmg that he 
 had the right of withdrawing the case 
 
253 
 
 COSTS. 
 
 254 
 
 from the County Court and bringing it in 
 the Court of Queen's Bench, or that the 
 defendant without just cause defended 
 the same." 
 
 Held, that, for the purpose of either 
 alternative, the onus is upon the plaintiff 
 to bring out in evidence any fact upon 
 which the certificate may be b^ed, and 
 that something more than the fact of the 
 recovering of some sum is necessary to 
 show that the defendant without just 
 reason defended the actio i 
 
 Without determining whether it could 
 be said that the defendant without just 
 reason defended, if the circumstances were 
 Such that he was without just reason for 
 defending further than by paying money 
 intb Court, 
 
 Held, that, when the claim is unliquid- 
 ated, the defendant cannot be taken to 
 ■ have defended without just reason, be- 
 cause he did not pay money into Court. 
 Ward v. Braun, 7 M. R. 229. 
 
 3. Certificate against set-ofE of costs. 
 
 Where an action is brought in the 
 Queen's Bench on a cause of action clearly 
 within the jurisdiction of the County 
 Court, a certificate to prevent a set-ofE of 
 full Queen's Bench costs will be refused. 
 Macdonald v. Harrison, 8 M. R. 153. 
 
 4. Construction of statutes — Statutes 
 relating to procedure as affecting pending 
 litigaiion— Increase of jurisdiction of lower 
 court after commencement, of action in 
 higher—Certificate for costs en King's 
 Bench scale — King's Bench Act, Rule, 933. 
 
 A statute increasing the amoimt that 
 may be sued for in a County Court is one 
 relating to procedure and applies to 
 pending litigation, so that a plamtiff who 
 has recovered a verdict in a King's Bench 
 action for an amount then within the 
 jurisdiction of the County Court is not 
 entitled to tax King's Bench costs without 
 getting from the Judge a certificate under 
 Rule 933 of the King's Bench Act, 
 although -the amount of the verdict 
 exceeds the amount that could have been 
 sued for in the County Court when the 
 action was commenced. 
 
 Todd V. Union Bank, (1890) 6 M. R. 
 457, followed. 
 
 Under such circumstances, however, 
 such certificate should be given prevent- 
 ing, also, any set-off of costs by the 
 def^dant. Rosenberg v. Tymchorak, 18 
 M. R. 319. 
 
 5. Defendant abroad — County Court 
 
 Where upon the face of the record the 
 action appears to be one within the 
 competence of the County Court, the 
 plaintiff is not, merely because the de- 
 fendant resided without the Province, 
 entitled to Queen's Bench costs. Such 
 absence may be ground for obtaining a 
 judge's certificate for Queen's Bench 
 costs, but without such certificate only 
 County Court costs can be taxed. Coch- 
 rane Manufacturing Co. v. Harmer, 3 M. 
 R. 449. 
 
 6. Interlocutory judgment for $460, 
 followed by verdict for $77 more— Q. 
 
 B. costs — When allowed. 
 * Where a plaintiff obtained an inter- 
 locutory judgment for $450, as to which 
 the defendant did not defend the action, 
 and afterwards a verdict for $77 more, 
 
 Held, that the plaintiff was entitled to 
 full Queen's Bench costs. 
 
 Pion V. Romieux, 7 M. R. 591, com- 
 mented on. Smart v. Moir, 8 M. R. 203. 
 
 7. Jurisdiction of Judge to allow 
 counsel fee on application made after 
 trial. ' 
 
 The plaintiff recovered an amount 
 within the jurisdiction of the County 
 Court and the trial Judge certified to 
 prevent a set-off of costs, thus allowing 
 the plaintiff County Court costs. The 
 taxation of these was adjourned to permit 
 an application to the Judge for a fiat for 
 a counsel fee. 
 
 Held, that the authority which the 
 County Court Judge could exercise in a 
 like case had become vested in the trial 
 Judge in this court, that the latter was 
 not functus officio after giving his certifi- 
 cate at the trial and had jurisdiction to 
 grant- a fiat for a counsel fee. Mont- 
 gomery V. Hellyer, 14 C L. T. Occ. N. 356. 
 
 8. Practice. 
 
 On an appUcation for a direction to the 
 Master as to the scale on which the costs 
 of an action in the Queen's Bench under 
 the former practice should be taxed, so 
 far as the record showed the action ap- 
 peared to be within the jurisdiction of the 
 County Court and no certificate for costs 
 on' the Queen's Bench scale had been 
 granted by the trial Judge, but plaintiff 
 contended that the evidence showed that 
 the action was really one for the balance 
 of an unsettled account exceeding in the 
 
255 
 
 COSTS. 
 
 256 
 
 whole $400, and therefore beyond the 
 jurisdiction of a County Court. 
 
 Held, that, in the absence of such a 
 certificate, the record alone and not the 
 evidence should be looked at, and that, 
 under section 62 of the A. J. Act, R. Sr M., 
 c. 1, only County Court costs should be 
 allowed to the plaintiff, and the defendant 
 was entitled to set off the difference in his, 
 costs of defence ,betweeii the Queen's 
 Bench and County Court scales. 
 
 Miller v. Beaver Mutual Fire Ins. Co. 
 (1864), 15 U. C. C. P. 75, followed. Allan 
 V. doughy, 12 M. R. 327. 
 
 9. Question of title to land— Sate of 
 
 growing wild hay — Breach of implied war- 
 ranty of title — Action brought in King's 
 Bench — Jurisdiction of County Court. 
 
 Action in the King's Bench for damages 
 for breach of an implied warranty of 
 title on sale to the {daintiff of growing 
 wild hay which was held to be personal 
 and not real property. The statement of 
 claim alleged that the defendants did not 
 own the land or the. hay. This was 
 admitted in the statement of defence. 
 
 Held, that the title to the land was 
 not brought in question and that, as the 
 amount of damages recovered was only 
 $305, the County Court had jurisdiction 
 and the plaintiff was not entitled to a 
 fiat for costs on tie Kling's Bench scale. 
 Fredkin v. Olines, 11 W. L. R. 318. 
 
 10. Scale of costs. 
 
 Action brought in the Queefl's Bench 
 for $225, for goods sold and dehvered. 
 
 Held, that the action might have been 
 brought in ^he County Court, and that 
 the plaintiff was not entitled, therefore, 
 to tax Queen's Bench costs. Parker v. 
 Nunn, 2 M. R. 30. 
 
 XII. Witness Fees. 
 
 1. Attendance of ofEicial to produce 
 documents which might have been 
 proved by certified copies. 
 
 Since The'Franchise Act, 1898, provides 
 that the voters' lists used at an election of 
 a member of the House of Commons may 
 be proved by the production of certified 
 copies, it is unnecessary to procure the 
 attendance of the Clerk of the Crown in 
 Chancery from Ottawa to produce the 
 lists at the trial of an election petition, 
 and the costs occasioned by procuring his 
 a-ttendanee will not be allowed to the 
 
 successful petitioner as against the re- 
 spondent, but instead thereof only what 
 the certified copies of the necessary parts 
 of the lists, if procured, would hav/cost. 
 Re Lisgar Election, 14: M. R. 268. 
 
 2. Expenses of qualifying witnesses 
 to give evidence — King's^ Bench Act, 
 Rules 4, ^63, 964. 
 
 The successful party in an action cannot 
 have taxed to him under Rules 963 and 
 964 of the King's Bench Act, R.S.M. 1902, 
 c. 40, as party and party costs, the ex- 
 penses incurred in qualifying witnesses to 
 give evidence at the trial. 
 
 Sub-section (s) of section 39 of the Act, 
 which provider that,-- when there is any 
 conflict between the rules of equity and 
 common law, the foriher shall prevail, 
 refers to matters of substantive law and 
 not to matters of mere practice, and the 
 equity rule formerly in force in England 
 under which- such expenses might have 
 been allowed is not in force here, for by 
 Rule 4 all practice inconsistent with the 
 Act was abolished and, as to all matters 
 not provided for, the practice is, as far as 
 may be, to be regulated by analogy to 
 the Act and Rules. Barry v. Stuart, 18 
 M. R. 614. 
 
 XIII. Miscellaneous Cases. 
 
 1. Action for account in equity— 
 
 Trustees — Mortgage. 
 
 Plaintiff, being second mortgagee of 
 certain property on which the defendants 
 had the first mortgage, filed a bill to 
 compel them to account for the surplus 
 proceeds of the property which they had 
 sold under their mortgage. Defendants 
 admitted a surplus of $28 and offered to 
 pay it; but the plaintiff, contending that 
 the solicitor's costs of the sale proceedings 
 were excessive, refused to accept this. At 
 the hearing of the cause a decree was 
 made with a reference to the Master to 
 take an account, when the Master re- 
 ported that the surplus payable by the 
 defendants was $64.16, having taxed 
 down the bill of solicitor's costs. The 
 matter then came before the Court for 
 the determination of the costs of the suit. 
 
 Hdd, that the plaintiff was liable for 
 defendants' costs up to and including iSie 
 hearing and decree, and that no subse- 
 quent costs should be allowed to either 
 party. Charles v. Jones, 35 Ch. D. 544, 
 followed. Oiks v. Hamilton Provident & 
 Loan Society, 10 M. R. 567. 
 
257 
 
 COSTS. 
 
 258 
 
 2. Action for defamation — Verdict 
 for $1 damages — King's. Bench Act, Ride 
 931 {a)—IJhel Act, R.S.M., 1902, c. 97, s. 
 13, as amended by QEdw.VII., c. 30., s. 2. — 
 7 &SEdw. VII, c. 12, ^.5. 
 
 . The statute 7 & 8 Edw.VII, c. 12, by 
 section 3, in effect repeals both sub-section 
 (a) of Rule 931 of the King's Bench Act 
 and section 13 of The Libel Act, R.S.M. 
 1902, c. 97, as to the right of a plaintiff 
 in an action of slander to costs whether 
 ^he recovers substantial or only nominal 
 damages, so that the ordering of costs is 
 in the absolute discretion of the trial 
 Judge. 
 
 Section 2 of chapter 30 of 9 Edw. VII, 
 amending section 13 of The Libel Act, 
 was passed inadvertently and without 
 giving to section 3 of c. 12 of 7 and 8 
 Edw. VII. the effect it has upon a proper 
 construction being placed upon it. 
 
 Gamett v. Bradley, (1878; A.C. 944, 
 followed. Shillinglaw v. WhilUer, 19 M. 
 R. 149. 
 
 3. Answer instead of demurrer. 
 
 A bin prayed foreclosure and ejectment. 
 The answer attacked the mortgage and 
 claimed title in defendants. At the 
 -hearing defendants submitted to fore- 
 jclosure, but contended that ejectment 
 ought not, upon the frame of the bill, to 
 ' be decreed and plaintiff did not press for 
 it. - 
 
 Held, that the plaintiff should have 
 
 " the costs of a simple foreclosure merely. 
 
 If a defendant answers when he might 
 
 have demurred and the case goes to a 
 
 hearing, no costs will be given to either 
 
 party. Eden v. Eden, 6 M. R. 596. 
 
 4. Arbitration under Railway Act — 
 
 Taxation of costs — Railway Act, R.S.C. 
 1906, c. 37, s. 2, s-s. (5), s. 190— ArU- 
 trator's fees — Counsel fees — Fees of expert 
 witnesses. 
 
 1. Under sub-section (5) of section 2 of 
 the Railway Act, R.S.C. 1906, c. 57, 
 interpreting the word "costs" used in 
 section 199 of the Act, as including fees, 
 counsel fees and expenses, the costs of an 
 owner who succeeds in an arbitration 
 under the Railway Act should be taxed as 
 between sohcitor and client. 
 
 Malvern Urban District v. Malvern, 
 (1900) 83 L.T. 326, followed. 
 
 2. The tariff of coats prescribed for 
 ordinary litigation may be accepted as a 
 general guide for taxing the costs of such 
 an arbitration.; but when, in the opinion 
 of the taxing officer, the fees fixed by that 
 
 tariff are inadequate compensation for the 
 services necessarily and reasonably rend- 
 ered, he is not boimd by it and should 
 not follow it. 
 
 3. For the purposes of the taxation of 
 such costs the arbitration began when the 
 Company served notice upon the owner 
 offermg an amount which thej^ were 
 willing to pay and naming its arbitrator, 
 and items for work done even before that 
 date should be allowed if they were for 
 work that would properly be costs of tjxe 
 arbitration if done after that date; for 
 example. Fee perusing the order of the 
 Railway Commissioners giving leave to 
 e3g)ropriate, and taking instructions. 
 ■ 4. The owner was entitled to tax the 
 fees paid to the arbitrators on taking up 
 the award. 
 
 Shrewsbury v. Wirral, [1895] 2 Ch. 812,- 
 distfnguished. 
 
 5. Counsel fees allowed by the taxing 
 officer were reduced to $100 per day for 
 first counsel and $75 per day for second 
 counsel. 
 
 6. The fees actually paid to expert 
 witnesses should not necessarilybe allowed, 
 but only fair and reasonable fees for' the 
 time occupied in attending before the 
 
 ^ arbitrators and in qiiahfying themselves 
 to give evidence. 
 
 7. The costs of the taxation, including a 
 fee of $25 for the argument before the 
 Judge, should be borne by the Company. 
 
 -Re Carwdian Northern Railway and 
 Robinson, 17 M. R. 579. 
 
 5. Countermand of notice of trial — 
 
 Counsel fee advising on evidence — Counsel 
 fee mih brief. 
 
 Where a plaintiff gives notice of trial 
 and afterwards countermands within the 
 proper time and then discontinues, the 
 defendant may tax a counsel fee advising 
 on the evidence, but not a counsel fee 
 with the brief. Union Bank of Canada v. 
 Morriset, 7 M. R. 470. 
 
 6. Defendant against co-defendant. 
 
 The bill was filed against Y. and S. to 
 remove from the registry a conveyance 
 from a former owner to Y. as a cloud on 
 the title. Plaintiffs had agreed to sell to 
 S., who declined to complete on account 
 of the registration of the deed sought to 
 be removed. S. allowed the bill to be 
 noted pro cmfesso against him, but 
 appeared at the trial, and asked for costs 
 against his co-defendant Y., on the ground 
 that by registering the conveyance to him 
 the suit had been occasioned. 
 
259 
 
 COSTS. 
 
 260 
 
 Held, that the appearance of S. was 
 vumecessary, and he was not entitled to 
 costs. Sutherland v. Young, 1 M. R. 94. 
 
 7. Discharge from imprisolmieiit. 
 
 Held, the court has no jurisdiction to 
 impose the paypient of costs as a condition 
 of discharge from custody. Monkman v. 
 SMnott, 3 M. R. 170. 
 
 Distinguished, Cotter v. Osborne, 17 M. 
 R. 248.' 
 
 8. Discontinuance. 
 
 At the trial, after the case was called, 
 but before it was opened, the plaintiff 
 withdrew the record and immediately 
 afterwards took out a rule to discontinue. 
 
 Held, 1. That the defendant was en- 
 titled to tax the costs of preparing for 
 trial and fees paid to counsel./ 
 
 2. A fee to one counsel of $40. was 
 allowed. Poison, v. Burke, 5 M. R. 31. 
 
 9. Examination of Defendant — 
 
 Shortening of time to answer. 
 
 Held,. 1. Plaintiff is not entitled to the 
 costs of an irregular examination of one 
 defendant, to discover the address of his 
 co-defendant, as costs in the cause. 
 
 . 2. Nor to the costs of an apphcation to 
 shorten the time for answer. McCaffrey 
 V. Butledge, 2 M. R. 127. 
 
 10. Examination for discovery — 
 
 King's Bench Actj Rule 932 — Parties to 
 action. 
 
 A fiat will not be granted under Rule 
 932 of The King's Bench Act t9 tax to a 
 plaintiff the costs of the examination of 
 a defendant who was not a necessary or 
 proper party to the action, although no 
 objection on that ground was taken prior 
 to the application for the fiat. 
 
 An insolvent debtor who has made an 
 assignment for the benefit of his creditors 
 is neither a necessary nor a proper party 
 to an action by the assignee to -set aside 
 a fraudulent preference given by him. 
 
 Weise v. Wardell, (1874) L. R. 19 Eq. 
 171, and Bank of Montreal v. Black, (1894) 
 9 M. R. 439, foUowed. 
 
 Gibbons v. Darvill, (1888) 12 P.R. 478, 
 distinguished. Schwartz v. Winkler, 14 
 M. R. 197. 
 
 11. Interpleader — Liability of execution 
 creditor for — Abandoning on first return of 
 summons — Company — Liquidator . 
 
 B. obtained a judgment against a joint 
 stock company and placed a.fi. fa. inlhe 
 hands of the sheriff of the Eastern Judicial 
 District. The sheriff seized certain goods, 
 which were claimed by the Bank Oi British 
 North America. The sheriff then obtain- 
 ed an interpleader summons. While the 
 summons was pending, and after B. had - 
 obtained an enlargement, an order was 
 made winding up, the Company and 
 appointing a hquidator. On the return 
 of the . summons, B. asked that the 
 liquidator be substituted in his stead. 
 
 Held, that B. must either take an 
 issue, or be barred and pay the costs of 
 .the claimant and the sheriff. 
 
 B. also placed a fi. fa. in the hands of 
 the sheriff of the Central Judicial District, 
 who also seized certain goods, which were 
 claimed by A. The sheriff notified B's. 
 soHcitors, who replied advising him to 
 interplead. On the first' return of the 
 interpleader summons, B. abandoned. 
 
 Held, that B. was not Hable for costs. 
 
 Stephens v. Rogers, 6 M. R. 298, and 
 Searle v. Matthews, W. N. 1883, 176, dis- 
 tinguished. Blake v. Manitoba Milling 
 Co., 8 M. R. 427. 
 
 12. Judgment for portion ot claim 
 admitted to be due. 
 
 A plaintiff being entitled to an order to 
 sign judgment for a portion of his claim 
 (under section 36 of the Q. B. Act) is 
 entitled to the costs down to that period. 
 McAnneary v. Flanagan, 3 M. R. 47. 
 
 13. Leave to plead after demurrer 
 overruled— Cosis, payment of, before plead- 
 ing- 
 
 Demmrer to the declaration was over- 
 ruled. Defendants appealed and again 
 failed. They then applied for leave to 
 plead, which was granted, but only upon 
 condition of first paying the costs of the' 
 demurrer and appeal. Toussaint v. Thomp- 
 son, 5 M. R. 53. 
 
 14. Master's office, fees in — Taxation 
 — Counsel fees. 
 
 In a proper case an appeal from the 
 Master will be allowed upon the quantum 
 of counsel fees. 
 
 Two fees fii $100 each reduced to two 
 of S50 each. - ' 
 
 The Master may allow upon proceedings 
 in his office one fee of $20, instead of the 
 usual $1 or $2 per hour; but has no power 
 to exceed that amount. Rankin v. 
 McKenzie, 3'M.R. 554:. 
 
261 
 
 COSTS. 
 
 262 
 
 16. Mechanics' and Wage Earners' 
 Lien Act, R.S.M. 1902, c. 110, s. 37— 
 
 Counsel fees as disbursements. 
 
 Counsel fees not shown to have .been 
 actually paid should notion taxation of 
 costs be treated as actual disbursements 
 within the meaning of section 37 of the 
 Mechanics' and Wage Earners' Lien Act, 
 R.S.M., 1902, c. 110. 
 
 Cobban Manufacturing Co. v. Lake 
 Simcoe Hotel Co., (1903) 5 O.L.R. 447, 
 followed. Lieibrock v. Adams, 17 M. R. 
 575. 
 
 • 16 Old affidavit used on new motion. 
 
 Upon an interlocutory appUcation, de- 
 fendant refiled material used by him upon 
 a previous application, which he had 
 made, and which had been refused without 
 costs. An order was granted upon the 
 new apphcation with costs. Upon taxa- 
 tion, the Master allowed the costs of pre- 
 paring the old material, but, upon appeal, 
 ^ Held, that such costs were improperly 
 allowed. Hooper v. BusheU, 5 M. R. 300. 
 
 17. Partnership suit — Costs when assets 
 insufficient. 
 
 Usually the costs of a partnership suit 
 are paid out of the assets; that is what 
 remains of the partnership property after 
 payment of debts, incluihng the balance 
 due to any of the partners. 
 
 Where the assets are insufficient for the 
 payment of costs then the deficiency must 
 be borne by the partners in proportion to 
 their share of the profits. Curran v. 
 Carey, 4 M. R. 450. 
 
 18. Postponement of hearing. 
 
 Held, a trial being postponed because 
 of the unavoidable absence of aimaterial 
 witness, the costs should be costs in the 
 cause. Vivian v. Wolf, 2 M. R. 122. 
 
 19. Power of Taxing Officer. 
 
 Meld, a taxing officer has power to 
 allow or disallow affidavits used on an 
 apphcation, without express direction. 
 
 A motion was refused upon a tech- 
 nical objection, and the Master disallowed 
 affidavits, ifiled in answer to the motion. 
 ' His discretion was not interfered with 
 on appeal. Ogilvie Milling Co. v. Small, 
 2 M. R. 120. 
 
 20. Power to award — Certiorari — 
 QjMshing conviction. 
 
 The Court has authority under its 
 general powers to award costs against" a 
 defendant on dismissing a rule nisi to 
 
 quash his conviction, although he has not 
 entered into a recognizance to pay costs, 
 if unsuccessful. Beg. v. Starkey, ,7 M. R. 
 262. 
 
 21. Prohibition — Practice. 
 
 Where a party appUes for prohibition 
 without raising the question of jurisdiction 
 in the Court below and having it decided 
 there, if no cause be shown to the rule, he 
 is not entitled to costs. Massey Manu- 
 facturing Co. V. Hannd, 7 M. R. 572. 
 
 22. Rival claimants to fund in Court 
 
 — Payment into Court by Trustee — Petition 
 for ■paymeni out — Practice — Reference to 
 the Master. 
 
 Where there are rival claimants to a 
 fund in Court, and each is held entitled to 
 a portion of the money, each should bear 
 his own costs except in so far as they 
 have been increased by one claiming moi'e 
 than he was entitled to; and then any 
 increased costs occasioned by such un- 
 founded claim should be paid by him to 
 the other party. 
 
 It is no objection to the petitioners' 
 claim for costs that the Judge on an ex 
 parte apphcation ordered a reference to 
 the Master, instead of disposing of the 
 matter 'himself. Re Hamilton Trusts, 10 
 M. R. 588. 
 
 23. Setting aside order. 
 
 Plaintiff obtained an order to set aside 
 a judgment of non-pros, upon payment 
 of costs. The costs not having been paid, 
 the defendant moved to rescind the order 
 dnd for payment of the costs of the former 
 application. 
 
 Held, that the former order should be 
 rescinded, but the costs of it could not be 
 ordered to be paid. Bailey v. Fortier, 3 
 M. R. 670. 
 
 24. Supplementary material on mo- 
 tion — Counsel fees — Brief ^Taxation. 
 
 1. Where the material upon which a 
 party is moving is defective, and he is 
 allowed to amend or supply what is 
 wanting, he cannot tax the costs of doing 
 so. • 
 
 2. The discretion of the taxing officer 
 as to the amount of counsel fees not inter- 
 fered with. 
 
 3. A second term brief allowed at the 
 amount for. which a second copy of the 
 evidence could have been got from the 
 shorthand writer. 
 
 4. Where the defendant succeeds on 
 part of the issues, but the plaintiff obtains 
 
26a 
 
 COSTS OF FORMER SUIT. 
 
 264 
 
 a verdict, the defendant is entitled only 
 to such costs as are exclusively applicable 
 £o the issues- on which he succeeds. 
 Morris~v. Armit, 4 M. R. 307. 
 
 25. Winding up — Creditors' rejrresent- 
 ative — Costs of — Company. 
 
 In Winding Up proceedings the costs 
 of the appear nee of a creditors' repre- 
 sentative should be allowed, whenever 
 such appearance is not clearly mmecessary, 
 and the-mere fact that the interests of the 
 creditors and official liquidator are 
 identical is not a sufficient reason for 
 refusing costs. Re Lake Winnipeg Trans- 
 portation Co., 7 M. R. 605. 
 
 See Amendment, 4. 
 
 — Appeal pkom County Court, IV. 
 
 — Assignment for Benefit of Cred- 
 
 itors, 2. 
 
 — Attachment op Goods, 3. 
 
 — BuiujiNG Contract, 5. 
 
 — Chose IN Action, 4. 
 
 — Contract, VII, 3; XII, 3. 
 — ' Conviction, 1. 
 
 — County Court, I, 2. 
 
 — DEVOLU'i'ioN of Estates, 1. 
 — ■ Dominion Lands Act, 3. 
 — ^ Ejectment, 6. 
 
 — ■ Evidence, 13, 15. 
 — ■ Examination op Judgment Debt- 
 or, 10. 
 
 — Fi. Fa. Goods, 4. ' 
 
 — Fraudulent Conveyance, 18. 
 — ■ Garnishment, VI, 1. 
 
 — Homestead, 1. 
 
 — Injunction, I, 1; III, 4; IV, 1. 
 — ■ Interpleader, I, 7; II; IX, 1. 
 
 — Libel, 3. 
 
 — • Liquor License Act, 8. 
 — ' Local Option By-law, V, 1. 
 — ■ Master's. Office, Practice in, 1. 
 — ' Mechanic's Lien, II; VI, 2. 
 — • Misrepresentation,. II, 1. 
 
 — Mortgagor and Mortgagee, V, 3; 
 
 VI, 3, 9, 11. 
 — ' Municipality, IV, 1; VIII, 4, 
 — - Negligence, V, 4; VII, 4. 
 
 — Pleading, I, 1; III, 1. 
 
 — Practice, X, 2; XI, 3; XII, 3; XVI, 6; 
 
 XX, A 1 ; XXVIII, 5, 13, 14, 16, 18, 
 21, 27, 31. 
 
 — Railways, I, 2; VII, 2. 
 
 — ' Real Property Act, V, 7, 9. 
 
 — ' Registered Judgment. 
 
 — ■ Sale of Land for Taxes, III, 3; X, 4. 
 
 — Security for Costs, II, 1; VI, 2. 
 -~ Solicitor and Client, I, 2; II; III, 
 
 5,6. 
 
 — Statutes, Construction op, 4. 
 
 ! Summary Judgment, I, 1. 
 Title to Land, 1. 
 Trespass and Trover, 1. 
 Trustee and Cestui Que Trust, 2. 
 Vendor and Purchaser, VI, 12, 16j 
 VII, 1. • - 
 
 Verdict op Jury, 1. 
 Winding-up, IV, 1, 8. 
 
 COSTS OF FORMER SUIT. 
 
 See Staying Proceedings, II. 
 
 COUNSEL FEES. 
 
 See Mechanic's Lien, VI, 2. 
 — Practice, XXVII, 5. 
 
 COUNTERCLAIM 
 
 1. Arising after writ issued. 
 
 A defendant cannot counterclaim in 
 respect of a cause of action not matured 
 before the issue of the writ. 
 
 A plea of countercl9.im should show 
 that it was payable before and at the 
 commencement of the action. 
 . (Over-ruling Taylor, J., Dubuc, J. 
 dissentiog.) 
 
 Sharp y. McBumie, 3 M. R. 161. 
 
 2. Arising out of Jurisdiction. 
 
 Held, a defendant can only set up, by 
 way of counterclaim or set-off, . i demand 
 for which he can bring an action. 
 
 Therefore, a cause of action which arose 
 out of the jurisdiction cannot be set up 
 by way of counterclaim or set-off, unless 
 the circumstances be such as to permit_of 
 an action being brought upon it.. Can- 
 adian Bank of Commerce v. ' Norlhwood, 5 
 M. R. 342. 
 
 See Assignment for Benefit op Credit- 
 ors, 5^ 
 
 — Costs, X, 1. 
 
 — County Court, I, 2, 3. 
 
 — Foreign Judgment, 4. 
 
 — Jury Trial, I, 3. 
 
 — • Master and Servant, IV, 2. 
 
 — Pleading, II; VIII, 2; X, 2. 
 — ■ Set-ofp. 
 
 ^ Staying Proceedings, III, 3. 
 
 — Vendor and Purchaser, II, 6. 
 
 — Warranty, 5. 
 
265 
 
 COUNTY COURT. 
 
 266 
 
 COUNTY COURT, 
 
 I. Jurisdiction op. 
 
 II. MiSCELLANEOTTS CaBES. 
 
 I. Jurisdiction op. 
 
 1. By agreement of parties — 
 
 County Courts Ad, B.S.M. 1902, c. 38, «. 
 73. 
 
 It is not competent to the parties to a 
 contract to agree to confer jurisdiction 
 upon the County Court of any judicial 
 division other than the one in whieh, 
 under section 73 of the County Courts 
 Act, R.S.M., 1902, c. 38, any action 
 arising out of. a breach of the contract 
 may be brought, and, if such an action is 
 brought in any other County Court, the 
 Judge should refuse to try it on the ground 
 of want of jurisdiction. 
 
 Farquharson v. Morgan, [1894] 1 Q. B. 
 552, followed. 
 
 This decision applies only to Courts 
 created by statute and not to Courts of 
 original jurisdiction, or to the rights^ of 
 parties to agree as to the jurisdiction of 
 such last named Courts. Manitoba Win4- 
 ■ milX Co. V. Vigier, 18 M. R. 427. 
 
 2. Counterclaim — Power to adjiuUcate 
 according to equity and good conscience — 
 Costs. 
 
 Action upon a note given for a binding 
 machine. Counterclaim for non-perform- 
 ance of an agreement to furnish repairs. 
 By the written contract provision was 
 made for the case of defective portions of 
 the machine. The evidence did not 
 support a case under the written contract, 
 and "the agen^ who was alleged to have 
 made the verbal agreement had no power 
 to do so. 
 
 Held, 1. That under Con. Stat. Man., c. 
 34, s. 41, authorizing, "inany case not 
 expressly provided for," the apjjUcation of 
 "the law and the general principles of 
 procedure or practice in the Court of 
 Queen's. Bench," the Coufity Court had 
 jurisdiction to consider a counterclaim 
 sounding in damages. , 
 
 2. That, the defendant having no right 
 acknowledged by the principles of either 
 law or equity, the judge of the County 
 Coiut had no power to awaid him damages 
 under the Act authorizing him "to make 
 such 'orders, judgments or decrees there- 
 upon as appear to-him just and agreeable 
 to equity and good conscience." 
 
 An appellant from the County Court 
 succeeded in- his appeal, but the principal 
 
 points raised and argued by his counsel 
 were decided against him. 
 
 Held, that there should be no costs of 
 the appeal, or of the appUcation to the 
 County Judge after the trial to reverse his 
 judgment. Donahue v. Eraser, 4 M. R. 
 469. 
 
 3. Counter claim — Tranter to Queen's 
 Bench — County Courts Act, R.S.Mj, c. 33, 
 s. 67. 
 
 A defendant in an action in the County 
 Court who enters a. defence by way of 
 counterclaim for an amount beyond the 
 jurisdictioii of the Coiu^ without abandon- 
 ing the excess is not entitled as of right to 
 have the action transferred to the Queen's 
 Bench, where there is nothing in the nature 
 of the counterclaim which puts it outside 
 the jurisdiction of the County Court- 
 except the amount. 
 
 Under section 67 of The County Courts 
 Act, R.S.M., c. 33, the excess in amount 
 must either be deemed to be abandoned 
 or the counterclaim is improperly put in 
 for the larger amount, and in neither case 
 can the defendant be entitled to the 
 transfer. Mcllroy v. McEwan, 12 M. R. 
 164. 
 
 4. Defendant abroad — Substitutional 
 service — Title to land. 
 
 The County Court has no jurisdiction 
 to proceed against a defendant resident in 
 the Island of Ceylon, either upon personal, 
 or by directing substitutional, service. 
 
 In an action upon a covenant in a deed 
 against 'encumbrances, 
 
 Semble, the title to land wduld be in 
 question. Re Ardagh, 4 M. R. 509. 
 
 6. Equitable relief in County Courts, 
 extent of. 
 
 County Courts in Manitoba have no 
 jurisdiction to rectify written instruments 
 for fraud or mistake, or to entertain an 
 action for the recovery of money paid 
 under the strict terms of such an instru- 
 ment. The provision in section 70 of 
 The County Courts Act, that the Judge 
 "may make such orders, judgments or 
 .decrees thereupon as appear to him just' 
 and agreeable to equity and good con- 
 science," apphes only to orders and 
 decrees in actions within the jurisdiction 
 of the Court as defined by section 60, and 
 deals only with the practice and procedure 
 in such actions and with the manner in 
 which the Judges are to dispose of such 
 actions at the trial, and section 60 only 
 gives jurisdiction in personal ' actions. 
 
267 
 
 COUNTY COURT. 
 
 268 
 
 which constitute one Of the three divi- 
 sions into which civil actions maintain- 
 able in the old common law courts were 
 divided, and the expisession cannot be 
 construed to include a claim to reform or 
 cancel a deed for fraud or mistake. 
 
 The plaintiff had, by mistake, given the 
 defendants a chattel mortgage for an 
 amount larger than he really owed them. 
 
 Under threat of seizure he afterwards 
 paid the full<^amount mentioned in the 
 mortgage, and then brought this action 
 to recover the excess. 
 
 Held, DuBUC, J., dissentin?, that the 
 County Court has no jurisdiction to enter- 
 tain such an action, and a non-suit should 
 be entered. 
 
 Foster v. Beetles, (1892) 2 Q.B. 255; 
 Ahrms v. McGUligat, (1873) 23 U. C. C. P. 
 171, followed. Craystonv Massey- Harris 
 Co., 12 M. R. 95. 
 
 6. New trial — Setting aside judgment. 
 A County Court Judge under section 
 
 308 of The County Courts Act has no 
 jurisdiction to set aside a judgment or 
 entertain an application for a new trial 
 or rehearing after six months from the 
 date when the judgment or decision was 
 pronounced or given. Grundy v. Mac- 
 donald, 11 M. R. 1. 
 
 7. Place where cause of action arose 
 
 — Prohibition. ' 
 
 The defendants, by letter written from 
 Brandon, directed to the plaintiff, who 
 was the Registrar at Mimiedosa, ordered 
 certain abstracts of title which were 
 mailed by plaintiff at Minnedosa, addres- 
 sed to defendants at Brandon. 
 
 Plaintiff sued for his fees in the County 
 Court at Minnedosa. The defendants 
 defended and raised the question of juris- 
 diction, contending that the cause of 
 action did not arise within the jurisdiction 
 of the Court at Minnedosa, 
 
 WAiiKEH, Co.C.J., gave a verdict in 
 favor of the plaintiff. Thereupon the de- 
 fendants took out a summons in the 
 Court of Queen's Bench to restrain further 
 proceedings, and to show cause why a 
 writ of prohibition should not issue. 
 
 Held, that a writ of prohibition would 
 ,not lie, on the ground that the cause of 
 action arose within the jurisdiction of the 
 County Court of Miimedosa, and the 
 summons was dismissed with costs. 
 Briseboia v. Povdrier, 1 M. R. 29. 
 
 8. Prohibition-^"Cottse of Action." 
 
 If the want of jurisdiction of an inferior 
 coiurt is apparent on the face of the pro- 
 ceedings, the defendant may move a,t any 
 time for prohibition; but if it does not so 
 appear he should first raise the objection 
 in the inferior court. 
 
 , "Cause of action" in The County Court 
 Act means the whole cause of action. 
 
 An action may proceed in a court other 
 than the one of the district in which the 
 action arose, (1) by leave of the Judge 
 previous to commencing the proceedings 
 or, (2) by transfer from that dflstrict after 
 action commenced. Wright v. Arnold, 6 
 M. R. 1. 
 
 9. Replevin — Officer — Resisting officer 
 in execution of his dviy — Criminal Code, 
 1892, s. Uii— County Cmtrts Act, B.S:M., 
 c. 33, ss. 74, 204. 
 
 Section 204 of The County Coiirts Act, 
 R.S.M., c. 33, does not authorize the 
 issue of a writ of replevin out of the 
 County Court of any County Court 
 Division except that in which the goods 
 to be replevied are situate. For the con- 
 struction of the provision in that section 
 as to the Court out of which the writ is to 
 issue, it is proper to look at the jirior 
 enactments of which that section is a 
 revision; and, in that light, the words 
 "otherwise ordered" should be held to 
 appljr only to an order changing the place 
 of trial and not to give power to order 
 the issue of the writ out of the Court for 
 any County Court Division other than 
 that in which the goods to be replevied 
 are situate. ^ 
 
 An order of a County Court Judge for 
 the issue of a writ of replevin out of Such 
 other County Court and tHe writ issued 
 thereunder are wholly uUra vires and 
 void and afford np protection to the 
 officer attempting to execute the writ, 
 and the owner of the goods described in 
 the writ cannot be convicted under section 
 144 of The Criminal Code, 1892, for 
 unlawfully obstructing or resisting the 
 officer in the execution of his duty, be- 
 cause he by force prevented the bailiff 
 from taking the goods under the writ. ' 
 
 Morse v. Jam^s, (1738) Willes, 122, 
 followed. 
 
 Parsons v. Lloyd, (1773) 2 W. Bl. 845, 
 and Collett v. Foster, (1857) 2 H. & N. 
 360, distinguished. 
 
 Per DuBTJO, J., dissenting 
 
 (1) Taking sections 74 and 204 of The 
 County Courts Act together, it should be 
 held that a Judge has power to order the 
 
269 
 
 COUNTY COURT. 
 
 270 
 
 issue of a writ of replevin out of a County- 
 Court other than that for the Division 
 in which the goods are. 
 
 (2) Even it the writ was unauthorized 
 it was issued by- order of a Judge and 
 appeared on its face to be perfectly 
 "regular and the bailifif was bouiid to 
 execute it and the acts of the defendants 
 constituted an unlawful resistance and 
 obstruction to a peace officer in the 
 execution of his duty: Andrews v. Marris, 
 (J841) I'Q. B. Z;'Parsons v.Lhyd, supra; 
 CoUett V. Foster, supra. Rex v. Firday, 13 
 M. R. 383. 
 
 10. Transfer to King's Bench — 
 
 King's Bench Act, s. 90 — Res judicata. 
 
 1. A County Court Judge has no juris- 
 diction under section 90 of the King's 
 Bench Act, R.S.M. 1902, c. 40, to transfer 
 an action to the Court of King's Bench 
 unless '^the defence or counterclaim in- 
 
 , volves matters beyond the jurisdiction of 
 the Court," and, when it is clear that such 
 matters a-re not involved, the Court of 
 Appeal will set aside an order allowing 
 
 • such transfer. 
 
 DoU V. Howard, (189.6) 11 M. R. 21, 
 distinguished. 
 
 2. A County Court Judge should not 
 entertain an application for such a trans- 
 fer, if it has been already refused by a 
 Judge of the King's Bench on an applica- 
 tion under the sa|me section, as the matter 
 is res judicata. Town of Emerson v. 
 Forrester, 19 M. R. 665. 
 
 11. Unsettled account — Prohibition. 
 Application'for prohibition to a County 
 
 Court on the ground that the plaintiff's 
 claim was part of an unsettled account 
 exceediugyin the whole $600. 
 
 Held, that it was competent, and indeed 
 necessary, for the Judge to inquire into 
 and decide the facts which would deter- 
 mine the question of jurisdiction and, as 
 he had decided the facts in favor of juris- 
 diction, the Court above should not inter- 
 fore by reviewing his deciaon, except 
 under very exceptional circumstances. 
 
 Joseph V. Henry-, (1850) 19 L.J.Q.B.369, 
 ajxAElston v. Rose, (1868) L. R. 4 Q. B. 4, 
 followed. Loppky v. Hofley, 12 M. R. 335. 
 
 12. Unsettled accounts — Prohibition. 
 In an action in the County Court on a 
 
 promissory note for $255, dated 12th 
 March, 1883, payable 9 months after date 
 with interest at 8 per cent, per annum, the 
 plaintiff claimed interest at 8 per cent, up 
 to the time of commencing the suit in 
 
 1894, and gave credit for two pajonents of 
 $50 each on account, and the total balance 
 claim,ed was i333.30 after crediting the 
 money received. The total amount of 
 the interest claimed was $176.90. 
 
 At the trial before the County Coiui; 
 Judge, on objection being taken to the 
 jurisdiction, he allowed the plaintiff to 
 amend his claim, reducing the rate of 
 interest charged to 6 per cent, after the 
 maturity of the note, which brought the 
 plaintiff's total charges for principal and 
 interest under $400, and entered a verdict 
 for the plaintiff. • 
 
 Defendant then moved for prohibition 
 on .the ground that the action was for a 
 balance of an unsettled account exceeding 
 $400, and so forbidden by section 66 of 
 The County Courts Act, R.S.M , c. 33. ■ 
 
 Held, (KiLLAM, J., dissenting) that the 
 County Court had jurisdiction and that 
 prohibition should be refused. 
 
 Per DuBUC, J.— The unsettled account 
 to be investigated w as less than $40 and 
 it made no difference that there was also 
 a claim for a liquidated balance added to 
 this, so long as the Tifhole amount claimed 
 did not exceed $400." 
 
 The County Court Judge also had juris- 
 diction to allow the plaintiff to abandon 
 the excess of 2 per cent, above the legal 
 /interest after the maturity of the note, 
 and to amend his particulars accordingly. 
 
 Per Bain, J. — The plaintiff was not 
 bound by his particulars claiming 8 per 
 cent, from the maturity of the note, and, 
 as the Dominion Act respecting interest 
 settles' the rate at only 6 per cent, after 
 maturity,, the subject matter to be investi- 
 gated was not really an unsettled account 
 at all. 
 
 Per KiiiLAM, J. — ^The plaintiff may have 
 intended to claim 8 per cent, under some 
 separate agreement, and the charges for 
 interest should be added to the amount of 
 principal so ias to ascertain the total 
 amount of the claim to be investigated, 
 and as this exceeded $400 and was partly 
 unsettled, and aU arose out of one cause 
 of action, the County Court had no juris- 
 diction, nor could the County Court 
 Judge, by any amendment, bring the 
 action within his jurisdiction. McMain v. 
 Ohee, 10 M. R. 391.' 
 
 13. Waiver of objection-^ Unsettled 
 account. 
 
 A question of jurisdiction in a County 
 Court was first raised by the dispute note, 
 but when the case came on to be tried the 
 defendant allowed the trial to go on withp 
 
 \ 
 
271 
 
 COUNTY -COURT. 
 
 272. 
 
 5>ut any mention of the matter, and it was 
 only after the case had been fully tried 
 th£|,t objection to the jurisdiction was 
 taken. 
 
 Held, that, by so doing,defBndant waived 
 any objection to the jurisdiction. The 
 objection should have been taken at the 
 opening of the case. Friesen v. Smith, 8 
 M. R. 131. 
 
 See Costs, XI, 9. 
 
 — ' Examination of J^joment Debt- 
 
 OK, 7. _ 
 
 T- Garnishment, III. 
 
 — Liquor License Act, 9. 
 
 -r- MtTNlClPALITY, IV, 1. 
 
 — Negligence, VII, 4. 
 ^- Prohibition, I. 
 
 II. Miscellaneous Cases. 
 
 . 1. Appeal — Replivin — Leave to appeal — 
 Special grounds. 
 
 In an action of replevin in a County 
 Court in which a mother and daughter 
 were defendants, the plaiitiff swore to an 
 agreement by which the daughter hired 
 oj: the plaintiff a sewing machine and agreed - 
 to pay therefor $5 a month until $75 should 
 be paid, and in default the plaintiff was to 
 be at Uberty to retake the machine, and 
 until full payment no title was to pass. 
 He also gave evidence that he had been 
 paid $5 and no more. The defendants 
 both gave evidence, but did not dispute 
 these statements of' the plaintiff. The 
 only defence raised was a set-off of the 
 mother on ian old claim against the plain- 
 tiff, alleged to have been assigned to the 
 daughter. The jury found a verdict for 
 the defendants. On motion the County 
 Court Judge set aside this verdict and 
 entered one for the plaintiff. 
 
 The defendants then appealed to the 
 Court of Queen's Bench under 54 Vic, 
 .c, 2, s. 21, (M. 1891), as substituted for 
 section 243 of The County Courts Act, 
 1887. ^ _ .-_ 
 
 Held, that there is no appeal in an 
 action of replevin because the question in 
 issue is not a money demand, but one of 
 title to goods. 
 
 The defendants then apphed to the 
 Coxmty Court Judge for leave to appeal 
 to the Court of Queen's Bench under 
 section 244 of The County Courts Act, 
 1887, and leave was refused. 
 
 " They then applied to a Judge of the 
 Court of Queetf s Bench for leave to appeal. 
 Held, that the Judge of the County 
 Court exceeded his powers in entering a 
 ve.dict for the plaintiff instead of granting 
 a new trial; but that, imder the circum-_ 
 stances, the defendants having Uttle means" 
 and no apparent defence, it was in the 
 interests of justice not to allow the htiga-. 
 tion to be prolonged, and the leave was 
 refused. Haddock v. Ryssell,^ M. R. 25. 
 
 2. Change of venue — Discretion of— 
 Judge — Practice. 
 
 Under section 77 of The County Courts 
 Act R. S. M. 1902, c. 38, which provides 
 that it shall be competent for the Judge, 
 upon what shall appear to him to be suf- 
 ficient grounds, to order the transfer of a 
 suit from one judicial division to another, 
 the Judge has an absolute discretion to 
 order such transfer if the grounds shown 
 appear to him sufficient, and it is not even 
 necessary for him to have affidavits before 
 him showing such grounds, but he may act 
 upon statements of the parties or their 
 counsel, and the practice in the King's 
 Bench relating to apphcations for change 
 of venue does not apply in County Lourt 
 actions. Sawyer & Mousey Co. v. Massey 
 Harris Co., 18 M. R. 409. 
 
 3. County Courts Act, R. S. M. 1902, 
 c. 38, ss. 107, 109, 168, \QZ— Evidence of 
 judgment of County Court — Seizure under 
 exeeuiion-^— Adjournment of sale — Sale for 
 inadequate price — Expiry of writ before sate. 
 
 1. Under section 103 (now 107) of The 
 County Courts Act the entry of a judg- 
 ment in the procedure book constitutes 
 the judgment, and, as, by section 162 
 (now 168), County Courts are Courts of 
 Record, the production of the procedure 
 book showing the entry proves the judg- 
 ment and it is not necessary to prove the 
 cause of action upon which such judgment 
 was founded to show that the Court had 
 jurisdiction over it. 
 
 2. A judgment should not be held to be 
 invalid because the Clerk of the Court had 
 omitted to make, in the procedure book, 
 the note required by section 105 (now 109) 
 to be entered, in a case where some defend- 
 ants have been served and some have not, 
 that the plaintiff had requested him to 
 strike out the names of the defendants 
 that had not been served and to amend 
 the style of the action accordingly, and it 
 should not, after a great lapse of time, the 
 judgment standing unreversed, be pre- 
 sumed, from the absence of such a note in 
 
273 
 
 -COtJNTY COURT. 
 
 274 
 
 the procedure book, that the plaintiff had 
 not given such instructions. 
 
 3. It was a sufficient seizure of 'the 
 buildings, which were locked up and unoc- 
 cupied and in a small remote settlement, 
 for the bailiff to put up notices that Ke had 
 seized them and of the date of sale without 
 leaving any person in possession or 
 attempting to remove them. 
 
 4. As a solicitor, at the time of the sale, 
 on the defendant's behalf gave the bailiff 
 a written notice forbidding the sale, the 
 debtor must be presumed to have known 
 of the day finally fixed for the sale, and 
 the fact that no notices of the several 
 adjournments of' the sale had been given, 
 by the bailiff became unimportant. 
 
 5 Although the price obtained at the 
 sale was only a small percentage of the 
 cost of the buildings, the circumstances 
 wer6 such that it did not appear that any 
 greater price could have been got, and the 
 bailiff was not bound to apply to the Judge 
 under section 185 (now 192) for power to' 
 sell, as that section is only for the bailiff's 
 protection and his not acting imder it 
 should not affect the. validity of the sale. 
 
 6. If a seizure is made while the writ 
 of execution is in force, a sale may be made 
 after the writ has expired. Dixon v. 
 Mackay, 21 M. R. 762. 
 
 4. Interpleader — Plaintiff acting for 
 bailiff in seizing under execution — Onus of 
 proof at trial of interpleader issue — Estoppel 
 —Sale of Goods Act, R. S. M. 1902, u. 152, 
 s. 20, K. 3. 
 
 Under sections 82 and 83 of The County 
 Courts Act, R.S.M. 1902, c. 38, before the 
 amendment of s. 83 at the session of 1904, 
 a seizure under execution made by the 
 execution creditor himself under the 
 authority of the bailiff was not unlawful 
 or invalid (Richahds, J., dissenting.) 
 
 Where wood piles were seized under 
 execution and notices of the seizure 
 attached to the different pUes, and a 
 person living near asked by the plaintiff 
 to look after them,and a week or two later 
 the bailiff came and placed the same 
 person in charge, it was held that there 
 was no abandonment of the seizure. 
 
 ffeH, also, per DtJBuc, C.J., 
 
 1. The property in the wood never 
 passed to the claimant; for, although he 
 had contracted to buy it from the judg- 
 ment debtor and had paid him $100 on 
 account, it had not been measured and 
 was not to be measured until brought by 
 railway to Carman, and, therefore, under 
 Rule 3 of section 20 of the Sale of Goods 
 
 Act, R.S.M. 1902, c. 152, the property had 
 not passed when the seizure was made. 
 
 2. The plaintiff was not estopped from 
 enforcing his execution by the fact that 
 he had issued and served upon the claim- 
 ant a garnishee order attactung any money 
 that might Eave been due by the claimant 
 to the judgment debtor on a sale of the 
 wood. 
 
 Perdue, J. — ^Under section 290 of the 
 Act, it was not open to the claimant, on 
 the trial of the interpleader issue, to raise 
 any objections, as to the validity of the 
 seizure or as to its abandonment, but he 
 could only take advantage of any such 
 matter by making an application to set 
 aside the, interpleader sunmions. On the 
 hearing of the latter the Judge should 
 confine the investigation to the question 
 whether the goods seized were the property 
 of the claimant as against the execution 
 creditor, and the onus rests on the claim- 
 ant, in the first instance, of proving his 
 ownershio. 
 
 The claimant failed to establish his 
 right to the wood as the provisions of the 
 Bills of Sale and Chattel Mortgage Act 
 had not been complied with. 
 
 Per Richards, J. (1) In the County 
 Courts there is no prelimiaary application 
 by the bailiff upon notice to the claimant 
 for an order for the trial of an interpleader 
 issue, but the bailiff takes out a summons 
 and serves it on the claimant who is , 
 thereby required to attend at a certain 
 time and place and "establish his claim" 
 to the property seized; and it would be. 
 productive of great hardship and expense 
 to the claimant if he were precluded, on 
 the hearing of the summons, from raising 
 any question as to the validity of the 
 seizure and had to make a special appUca- 
 tion beforehand to the Judge ia order to 
 get the interpleader summons set aside. 
 He should, therefore, be allowed -to raise 
 the question at the trial of the inter- 
 pleader issue. 
 
 (2) The claimant had a contract for 
 the purchase of the wood sufficient to 
 satisfy the Statute of Frauds, and that 
 gave him an interest in the property that 
 entitled him to claim it as against the 
 plaintiff, whose seizure was invaUd as he 
 had no right to act as his own bailiff, and 
 who, for that reason, was only a trespasser. 
 Huxtahle v. Conn, Simpson, claimant, 14 
 M. R. 713. 
 
 5. Judicial discretion — Adjournment 
 of trial by Judge mero motu to admit' 
 further evidence. 
 
275 
 
 CX)UNTY COURT ACTION. 
 
 276 
 
 ' When, at the trial of an action in a 
 County Court, both paiiiies have put in 
 all their evidence, and the Judge comes 
 to a conclusion as to. the proper verdict 
 to be rendered, it is not a proper exercise 
 of judicial discretion under section 131 of 
 The County Courts Act, R.S.M. 1902, c. 
 38, for him of his own motion, without an 
 application by either party or any sug- 
 gestion as to further evidence being 
 available, to postpone the giving of judg- 
 ment to allow either pat'ty to put in 
 iurther evidence; and the Court of Appeal 
 will, in such a case, order that judgment 
 be entered in the County Court in accord- 
 ance with the conclusion arrived at by 
 the trial Judge, subject to all rights of 
 parties as if it had been so entered_orig- 
 inally by his direction^ Tett v. 
 Supply Co., 19 M, R. 250. 
 
 6. Pleading in County Court action 
 
 —County Courts Act, RS.M. 1902, c. 38, 
 ss. 95, 114, 116, 118 — Proof of presentment 
 of promissory note payable at a particular 
 place when dispute note does not deny 
 presentment. 
 
 Although a promissory note is payable 
 at a particular place, it is not necessary, 
 in an action upon it in a County Court, 
 to allege presentment at that place in the 
 particidars of claim, or to prove present- 
 ment at the trial unless the defendant has 
 expressly set up non-presentment in his 
 dispute note. Teague v. Scoular, 17 M. R. 
 593. 
 
 7. Service of writ by person other 
 than SheriS — Appearance-^Waiver. 
 
 Held, (Wood, C.J., dissenting), affirm- 
 ing the decision of McKeagnet, J., that 
 the service of a County, Court writ by a 
 person other than a sheriff, constable or 
 bailiff, as required by 36 Vic, c. 6, s. 6, 
 s-s 1 (Man.), is a nullity, and is not 
 waived by appearance to the writ. Mercer 
 V. McLean, T. W. 95. 
 
 See Amendment, 4. 
 
 — ■ Appeal FROM Oedbb, 5. 
 
 — ■ Capias, 5. 
 
 — ■ Executors and Administrators, 1. 
 
 — Fi. Fa. Goods, 1. 
 — • Jurisdiction, 2. 
 
 — ■ Misrepresentation, IV, 2. 
 
 — • Monet had and Received. 
 
 — NuL TiEL Record, 1, 2. 
 
 — Pleading, I, 2. 
 
 — Practice, XX, B, 6; XXVII; 1. 
 
 See Prohibition, I. 
 
 — Registered Judgments, 2, 5, 7. 
 — • Statutes, Construction of, 4. 
 
 — Staying Proceedings, III, 2. 
 
 COUNTY COXTRT ACTION. 
 
 See Contract, VJI, 2. 
 
 COUNTY COURT CLERK. 
 
 See Garnishment, I, 10; V, 5. 
 
 COUNTY COURT JUDGMENT. 
 
 See Retrospective Statutes. 
 
 — ■ Statutes, Construction of, 5. 
 
 COUPONS. 
 
 See Municipality, VIII, 1. 
 
 COURT OF REVISION. 
 
 See Sale of Land fob Taxes, IX, 1. 
 
 COVENANTS 
 
 1. In assignment of Mortgage — 
 
 Covenant that mortgage assigned is a good 
 and valid security — Warranty of title — 
 ■ "Security," meaning of. 
 
 A covenant in an assignment of a 
 mortgage of land that the mortgage is a 
 good and vaUd security does not mean 
 that the mortgagor had a good title to 
 the land, or that the mortgage is effective 
 to charge the land with payment of the 
 mortgage moneys, but only that the 
 instrument is a genuine one duly executed 
 by the mortgagor, and that there is noth- 
 ing to affect its validity as .a binding 
 contract between the mortgagor and 
 mortgagee for payment of the debt 
 assigned. 
 
 Meaning of the word "security"' dis- 
 cussed. McEwan v. Henderson, 10 M. R. 
 503. 
 
277 
 
 COVENANTS. 
 
 278 
 
 2. Construction of covenant— LaTuJ- 
 
 lord and tenant— Breach — Forfeiture. 
 
 The defendant demised a flour mill and 
 a saw mill to the plaintiff and one C, the 
 former representing and covenanting that 
 he was a skillful miUer, and C. that he 
 was a skilled engineer. ' C. assigned to 
 the plaintiff all lus interest in the term. 
 Th^re were various other covenants, in- 
 cluding one to take precautions against 
 fire; but the only one in connection with 
 which forfeiture was mentioned was the 
 following: " That no intoxicating liquor 
 .... shall be kept, used or munk in 
 the building or near the same by the 
 lessees, their employees, etc The said 
 mills shall be run by no person under the 
 influence of Uquor, and that imder for- 
 feiture of this lease." The plaintiff did 
 not work the flour mill regularly. C. was 
 not a competent engineer. Some sacks 
 had been negligently left on the boiler 
 and had caught fire. Intoxicating Uquor 
 had been brought on the premises by a 
 stranger, and the plaintiff and his men had 
 drunk some. 
 
 Held, that there was no forfeiture of 
 the lease for breach of covenants in the 
 absence of express agreement for such 
 forfeiture. 
 
 Held, that forfeiture for breach of 
 the covenant respecting intoxicating 
 Uquor, upon the true construction thereof, 
 would accrue only upon the mill being 
 run by some one under the influence of 
 Uquor, and not upon Uquor being kept, 
 used or drunk on the premises. 
 
 Held, also, that it there had been a 
 right of re-entry in the defendant for 
 forfeitm-e, that would have been a com- 
 plete answer to the charge of forcible 
 entry, though the defendant might have 
 been Uable to an indictment. Comber v. 
 LeMay, T. W.,-35. 
 
 3. Construction of covenants — 
 
 Whether dependent or independent. 
 
 An agreement for sale contained the 
 foUowing provision; "The said party of 
 
 the second part, for himseU, 
 
 doth covenant, promise and agree to and 
 with the said party of the first part, his 
 
 heirs, that he or they shall 
 
 and will weU and truly pay. or cause to be 
 paid the said party of the first part 
 the said sum of money, to- 
 gether with the interest thereon, on the 
 days and times and inanner above men- 
 tioned, and also shall and will pay and 
 
 discharge all taxes, In 
 
 consideration whereof and on payment of 
 
 the said sum of money with interest as 
 aforesaid and in manner aforesaid, the 
 said party of the first part doth covenant, 
 promise and agree to and with the said' 
 party of the second part to convey and 
 assure or cause to be conveyed and assured 
 to the said partj of the second part, his 
 
 heirs and assigns the said 
 
 pieces or parcels of land and 
 
 shaU and will suffer and permit the said' 
 party of the second part, his heirs and 
 assigns, to occupy and enjoy the same , 
 until def,ault," &c. Then foUowed a 
 provision that time was to be of the 
 essence of the contract and that, unless 
 the payments were punctuaUy made, the 
 plaintiff might re-enter on and re-sell the 
 lands and aU pajonents made were to be 
 forfeited. 
 
 Held, that the covenants were inde- 
 pendent covenants. 
 
 The purchaser was bound, on his cove- 
 nant, to pay the purchase money before the 
 vendor could be compeUed, on his cove- 
 nant, to convey the property agreed to 
 be sold. 
 
 The intention of the parties, as far as 
 it can be gathered from the wording of 
 the covenant, must be given the greatest 
 weight. Macarthur v.Leckie, 9 M. R. 110. 
 
 4. Dependent or independent — 
 
 Building contract — Payment by instalments. 
 ■ To a declaration in an action for breach 
 of a contract contained in an indenture, 
 whereby the defendant covenanted to 
 buUd a house for the plaintiffs, the de- 
 fendant pleaded that the plaintiffs had 
 by withholding the monthly payment due 
 to the defendant, contrary to the terms 
 of the indenture, and by jtheir architect 
 refusing the monthly estimates,, etc., 
 hindered and obstructed the defendant in 
 the prosecution of the work, and thereby, 
 of their own wrong, caused the breach 
 complained of. 
 
 Held, on demurrer to the pleas, that 
 the performance of the defendant's cove- 
 nants was dependent upon the perform- 
 ance of the plaintiffs', and therefore the 
 pleas were a sufficient answer to the 
 declaration. Hoskins v. Barber, T W., 
 264. 
 
 6. Dependent or independent. 
 
 C. agreed with the city of W. to i)rovide 
 electric Ughts for street lighting in W., 
 and up to the expiration of six years to 
 keep them lighted from darkness to day- 
 Ught; In consideration thereof the city 
 agreed to make monthly payments; that 
 
279 COVENANTS— WHETHER DEPENDENT OR INDEPENDENT. 280 
 
 C. should have the sole right and privilege 
 of. lighting the streets, and that the city 
 should not contract with amy other person, 
 for lighting the streets, during the said 
 period. 
 
 Held, 1. That the agreements were de- 
 pendent, and that ifC., failed to. perform 
 his part of the' agreement, and the city 
 made' a new' contract with other persons, 
 he could not recover against the city. 
 
 2. Whether covenants are * dependent, 
 or independent, is determined by the 
 intention of the parties and the application 
 of common sense to each particular case. 
 Manitoba Skctric lAghi and Power Co . v. 
 CUy of Winnipeg, 2 M. R. 177. 
 
 6. Excuse for non-performance. 
 
 To a declaration on a covenant con- 
 tained in a lease, whereby thg defendant 
 covenanted to erect a fence aroimd the 
 demised premises during the term, the 
 defendant pleaded that he was always 
 ready and wiUing, etc., but the plaintiff 
 wroligfully deprived him of, and con- 
 verted to his own use, a quantity of 
 , lumber with which the defendant intended 
 to fence, etc., whereby the defendant was 
 prevented from performing his said cov- 
 enant. 
 
 Held, on deinurrer, bad. Clarke v. 
 . Murray, T. W., 119. 
 
 7. Implied covenant tp pay debjb. 
 
 Defendant executed under seal an in- 
 strument creating a charge on land in 
 favor of plaintiffs for the price of an engine 
 bought from them and interest to be paid 
 by specified instalments. The instrument 
 further provided that, if notes should be 
 given by defendant for the several instal- 
 ments,' such notes should not be in satis- 
 faction of the said lien^ind charge, but the 
 same should continue until' payment ia 
 full of such notes and any renewals thereof. 
 It contained no covenant or promise to 
 pay the debt. 
 
 Held, that a covenant or pi-omise to 
 pay the debt could not be implied from 
 the terms of the deed, and that plaintiffs 
 could not have a personal order for pay- 
 ment of the debt based upon anything 
 contained in it. 
 
 Waterous Engine Works Co. y. Wilson, 
 (1896) 11 M.R. 287, distinguished. Abell 
 Engine & Machine Works Co. v. Harms, 
 16 M.R. 546. 
 
 8. Joint, or joint and several coven- 
 
 ATXts^Reforination — Corroborative evidence 
 of claim against estate. 
 
 1. The following, covenant is joint, and 
 not joint and several:. "The said mort- 
 gagors do hereby for themselves, their 
 heirs, executors and administrators, cov- 
 enant, promise and agree, to and with- the 
 said mortgagee, his heirs and assigns, in 
 manner folibwing, that is to say, that they,- 
 their heirs, executors, administrators, or 
 some or -one of them wiU pay or cause to 
 be paid," etc. 
 
 2. Every contract for a joint loan is, in 
 equity, to be deemed as to the parties 
 borrowing, a joint and several contract, 
 whether the transaction be of a mercantile 
 nature or not. 
 
 3.-Discussion as to when a Court of 
 Eguity wiU reform a joint bond, making it 
 jomt and several. 
 
 4. Independently of any statute the 
 practice of the Court of Equity requires 
 that the evidence of a person seeking to 
 establish a claim against the estate of a 
 deceased person should be corroborated. 
 Rankin v. McKenzie, 3 M.R. 323. 
 
 9. Liability of covenantor to coven- 
 antee after assignment of covenant. 
 
 B. assigned to C. an agreement by A. 
 to purchase land from B. and to pay for 
 same by instalments. B. also guaranteed 
 to C. the payment by A. of the several 
 instalments. 
 
 Held, distinguishing Cullin v. Rinn, 
 (1887) 5 M. R. 8, that B. could not recover 
 from A. the amount of an instalment over 
 due under the agreement, though he might 
 ordinarily have asked the Court to com- 
 pel A. to pay C. under Ascherson v. 
 Tredegar Dry Dock Co., [1909] 2 Ch. 40. 
 Sidton V. Hinch, 19 M. R. 70^. 
 
 See Banks and Banking, 8. 
 — ' Chattel Mortgage, V, 6. 
 — ■ Contract, X'V, 14. 
 — iNiEMNITT, 1, 2, 3. 
 
 — • Mortgagor and Mortgagee, III, 3; 
 
 VI, 6, 10, 15. 
 -T- Pleading, XI, 1. 
 — • Real Peopebtt Limitation Act, 1. 
 — ' Restraint op Trade. 
 — ■ Right of AcTiok. 
 
 -COVENANTS— WHETHER 
 DEPENDENT OR INDEPENDENT. 
 
 See CdNtRAdT, XV, 6. 
 — Covenants, 3, 4, 5. 
 
281 
 
 eREDITOR HOLDING SECURITY. 
 
 282 
 
 CREDITOR HOLDING SECURITY. 
 
 See Statutes, Construction op, 3. 
 
 CRIMINAL COMBINATION. 
 
 See Conspiracy in Restraint op Trade 
 2. 
 
 CRIMINAL INFORMATION 
 
 Foundation for libel — Public officer. 
 Held, a criminal information will not 
 be granted except in case of a libel on a 
 person in authority, - in respect of the 
 duties pertaining to his office, 
 '2. Where the libel was directed against 
 M., who was at the time Attorney- 
 General, but alleged improper conduct 
 upon his part when he was a Judge, an 
 information was refused. 
 
 3. The applicant for a criminal infor- 
 mation must rely whoUy upon the Court 
 for redress, and must come there entirely 
 free from blaime. 
 
 4. Where there is a foundation for a 
 libel, though it fall far short of justifica- 
 tion, an information will not be granted. 
 Reg y. Biggs, 2 M.R. 18. 
 
 
 CRIMINAL LAW. 
 
 I. 
 
 Amendment of Information. 
 
 II. 
 
 Assault Occasioning Actual 
 
 
 Bodily Harm. 
 
 III. 
 
 Bawdy House. 
 
 IV. 
 
 Carnal Knowledge of Girl 
 
 
 UNDER Age. 
 
 Y- 
 
 Demanding Money with Men- 
 
 
 aces. 
 
 VI. 
 
 Evidence. 
 
 VII. 
 
 Indictment or Information, 
 
 
 Sufficiency of. 
 
 VIII. 
 
 LO'ITERY. 
 
 IX. 
 
 Manslaughter. ' 
 
 X. 
 
 Obstructjing or Resisting. 
 
 XI. 
 
 Speedy Trial by Judge without 
 
 
 Jury. 
 
 XII. 
 
 Summary Conviction. 
 
 XIII. 
 
 Summary Trial op Indictable 
 
 
 Offence. 
 
 xrv. 
 
 Trial Before Jury. -^ 
 
 XV. 
 
 Vagrancy. 
 
 XVI. 
 
 Warrant of Commitment. 
 
 xvn. 
 
 Miscellaneous Cases. 
 
 ~ I. Amendment of Information. 
 
 1. After lapse of time limited b^ 
 
 statute— Ldquor License Act, B.S.M. 1902, 
 c. 101, s. IQSTT-Certiorari. 
 
 An information under section 168 of The 
 Liquor License Act, R.S.M. 1902, c. 101, 
 for furnishing liquor to an interdict dis- 
 closes no offence unless it alleges that the 
 defendant had knowledge of the inter- 
 diction, and it becomes a new information 
 if amended by introducing such allegation. 
 
 If such amendment is not made within 
 thirty days from the date of the offence, 
 the magistrate has no jurisdiction to pro- 
 ceed on the amended information, and a 
 conviction based upon it will be quashed 
 on proceedings by -certiorari. Rex v. 
 Guertin, 19 M.R. 33. 
 • ■ 
 
 ' 2. After lapse of time limited by 
 
 statute— iigt«>rl(^ce?ise Act, R.S.M. 1902, 
 c. 101, amendments of 1908, c. 26, s. 30, s-s. 
 32 — Consuming liquor in local option 
 district — Prohibition. 
 
 An information under sub-section 32 of 
 section 30 of 7 & 8 Edward VII, amending 
 The Liquor License Act, R.S.M. 1902, c.^ 
 101, for consuming liquor in territory 
 under a local option by-law discloses no 
 offence unless it alleges that the hquor 
 was purchased and received from some 
 person other than a licensee under said 
 section 30, and it becomes a new informa- 
 tion if amended by adding such allegation. 
 
 If such amendment is not made within 
 thirty days from the date of the offence, 
 the magistrate has no jurisdiction to 
 proceed under the information and pro- 
 hibition should issue to prevent him from 
 doing so. 
 
 Rex V. Guertin, 19 M.R. 33, 15 C.C.C, 
 251, followed. Rex v. Speed, 20 M.R. 33. 
 
 II. Assault Occasioning Actual Bodily 
 Harm. 
 
 1. Evidence — Competency of accused to 
 give evidence on his own behalf — Statement , 
 by party assaulted — Admissibility oj. 
 
 On an indictment for assault and 
 battery occasioning actual bodily harm 
 the accused, at the close of the evidence 
 for the prosecution, asked to be sworn and 
 examined as a witness on his own behalf. 
 The trial Judge held that he was not in ''a 
 position to find that the only case appar- 
 ently made out was one of common 
 assault or assault and battery, and refiised 
 to allow the evidence. On a. Crown case 
 reserved, 
 
283 
 
 CRIMINAL LAW. 
 
 284 
 
 Held, that the accused was not a 
 competent witness on his own behalf 
 under R. S. C, c. 174, s. 216. > 
 
 Reg. V. Bonter, 30 U. C. C. P. 19, and 
 i2«Sr. V. Richardson, 46 U. C. R. 375, 
 followed. 
 
 A statement by the man that was 
 assaulted, made immediately after the 
 assaiidt and in the presence of the accused, 
 is admissible iu evidence. Req. v. Drain, 
 8 M. R. 535. 
 
 2. Summary trial of indictable 
 Oflence — Jurisdiction oj police magistrate. 
 - Although a police magistrate, who is 
 not one of those officials to whom power 
 is given by sub-section 2 of section 777 of 
 the Criminal Code, as am nded in 1909, 
 to try summarily offences which might, 
 in Ontario, be tried at af Court of General 
 Sessions of the Peace, has power, under 
 paragraph (c) of section 773, to try 
 summarily a charge of unlawfully wound- 
 ing dr inflicting grievous bodily harm, an 
 voffence which is indictable under section 
 274, yet he has ho power to try summarily 
 a charge of assault occasioning actual 
 bodily harm, as that offence, made 
 indictable by section 295, although of a 
 similar and less serious nature, is npt one 
 of those specified in section 773. Rex v 
 Sharpe, 20 M. R. 555. 
 
 III. Bawdt House. 
 
 1. Evidence necessary to prove 
 offence — Criminal Code, s. 195. 
 
 1. A woman, living by herself-in a house, 
 cannot be convicted of keeping a bawdy, 
 house therein, unless it is shown that one 
 or more other women resort to it for 
 purposes of prostitution. 
 
 Rex Vj Young, (1902) 14 M. R. 58, and 
 Singleton v. Ellison, [1895] 1 Q.B. 607, 
 followed. 
 
 2. In order -to support a conviction for 
 keeping a bawdy hoi^se, it is not sufficient 
 to show the bad reputation of the house 
 and its inmates and that men resorted to 
 it in the night, but actual proof must be 
 given of some act or acts of prostitution," 
 though definite proof of one may be 
 sufficient. 
 
 Regina v. St. Clair, (1900) 3 Can. Cr. 
 Cas. at p. 557, followed. 
 
 3. Section 195 of the Criminal Code, 
 1892, does not change the law, as it was 
 before the Code, as to the essential 
 ingredients of the offence of keeping a 
 bawdy house, and is intended merely to 
 define the nature of the premises within 
 
 which a bawdy house may be kept, and 
 not to state what ^.cts constitute such 
 keeping. See Stephens' Digest of Crimr 
 inalLaw, Art. 201. Rex v. Osherg; 15 M. 
 R. 147. 
 
 2. Excessive fine — Summary trial of 
 indictable offence. 
 
 A conviction adjudging a fine of $100 
 without any mention of costs upon the 
 summary trial before a police magistrate 
 of a charge of keeping a common bawdy 
 house sufficiently complies with section 
 781 of the Criminal Code, which provides 
 that the magistrate may condemn the 
 party convicted to pay a fine not exceed- 
 ing, with the costs of the case, one hundred 
 dollars.) 
 
 Regina v. Cyr, (1887) 12 P.R. 24, 
 distinguished. Rex v. Stark, 21 M. R. 
 345. 
 
 3. One female — Criminal Code, ss. 195' 
 198, 783. 
 
 A female cannot be convicted of unlaw- 
 fully keeping a bawdy house, under 
 section 198 or section 783 of the Criminal 
 Code, unless it is shown that the house 
 or room in question is occupied or re- 
 sorted to by more than one female for 
 purposes of prostitution. 
 
 Singleton v. Ellison, [1895] 1 Q. B. 607, 
 followed. Rex v. Young, 14 M. R. 58. 
 
 IV. Caknal Knowledge op Girl tjndbb 
 Age. 
 
 1. Indictment — Form of — Felonious 
 assault. 
 
 Indictment that the prisoner "in and 
 upon one J., a girl under the age of 
 fourteen years . . . feloniously did make 
 an assault, and her, the said J., then and 
 there feloniously did unlawfully and 
 carnally knoy and abuse," &c. 
 
 The evidence shewed that the girl con- 
 sented to whatever the prisoner did -to 
 her, and that she was under fourteen years 
 pf age. The jury found a general verdict 
 of guilty. 
 
 Held, that there was only one offence 
 charged in the indictment, viz., the 
 statutory felony of carnally knowing a 
 girl under fourteen years of age, and that 
 the prisoner was properly convicted. 
 
 HeU, also, that the words ^'feloniously 
 did make an assault" charged no offence 
 known to the law and should be treated 
 as mere aggravation or surplusage. Reg. 
 v. Chisholm, 7 M. R. 613. Jatobs' case. 
 
285 
 
 CRIMINAL LAW. 
 
 286 
 
 2. Indictment for — Conviction under 
 53 Vic., c 37, s. 13, s-s. 4, for indecent 
 assavU— Consent. 
 
 Indictment that the prisoner "in 
 and upon one R, a girl under the age of 
 fourteen years . . . feloniously did 
 make an assault, and her, the said R., 
 then and there feloniously did imlawf uUy 
 and carnally know and abuse," &c. 
 
 The evidence, showed that the girl was 
 between the ages of eight and nine years, 
 and that the acts complained of were 
 committed with her tacit consent, which 
 consent was not procured by force or 
 intimidation. The jury acquitted the 
 prisoner of the felony charged, but under 
 53 Vic, c. 37, s. 13, s-s. 4 & s. 7 (D. 1890), 
 found him guilty of indecent assault. 
 
 Held, that the conviction was right. 
 
 Held, also, that the indictment, by 
 virtue of section 13, sub-section 4, in- 
 cluded and carried with it a charge of 
 indecent assault within the meaning of" 
 section 7 of said Act, and that the consent 
 of the girl was no bar to a conviction for 
 indecent assault. Reg. v. Brice, 7 M. R. 
 627. 
 
 V. Demanding Money with Menaces. 
 
 1. Letter demanding money. 
 
 R. S. C. c. 173, s. 1., provides that 
 I'Every one who sends, ... know- 
 ing the contents thereofj,_any letter or 
 writing, demanding of any person with 
 menaces, and without any reasonable or 
 probable cause, any property, chattel, 
 
 money, is guilty of a 
 
 felony," &c. 
 
 Held, (KiLiiAM, J., dubiiante), that a 
 letter sent by the prisoners to a tavern 
 keeper demanding a sum of money, and 
 threatening in default of payment to 
 bring a prosecution under The Liquor 
 License Act, was not a menace within the 
 meaning of the above section. 
 
 Held, also, (Killam, J., dubiiante), that 
 the test is whether the menace was such 
 as a firm and pruden* man might and 
 ought to have resisted. 
 
 Bex V. Southerton, 6 East, 126, followed. 
 Reg. V. McDonald and Vanderberg, 8 M.fe, 
 491. 
 
 2. With intent to stoal— Criminal 
 Code, s. 404. , 
 
 The prisoner was convicted under ^ 
 section 404 of the Criminal Code, 1892, of 
 having demanded money of the pros- 
 ecutor with menaces with intent to steal 
 the same, and a ease was reserved for the 
 
 opinion of the Court on the question, 
 whether the evidence , was sufficient to 
 prove the crime charged. 
 
 The prisoner had demanded 875 from 
 the prosecutor under threat of having * 
 him prosecuted for an infraction of The 
 Liquor License Act. 
 
 Held, that any menace or threat that 
 comes within the sense of the word menace 
 in its ordinary meaning, proved to have 
 been made with the intent to steal the 
 thing demanded, would bring the case 
 within section 404, and that it need not 
 be one necessarily of a character to excite 
 alarm, but it would be sufficient if it were 
 such as would be likely to affect any man 
 in a sound and healthy state of mind; and 
 the question, whether there was the 
 intention to steal the money demanded,. 
 is one of fact and not of law. 
 
 Conviction affirmed, Killam, J., dis- 
 senting. « 
 
 Reg. V. Smith, (1849) 4 Cox C. C. 42; 
 Reg. V. Robertson, (1864) L. & C. 483; 
 Reg. V. Tomlinson, (1895) 18 Cox C. C. 75, 
 followed. 
 
 Reg. V. McDonald, (1892) 8 M. R. 491, 
 and Rex v. Southerton, (1805) 6 East, 126, 
 doubted. Reg. v. Gibbons, 12 M. R. 154. 
 
 VI. Evidence. 
 
 1. Confessions. 
 
 The p isoner being suspected of having 
 been guilty of the murder of qne John 
 Gordon but not imder arrest, detectives 
 were employed who associated with him, 
 worked themselyes into his confidence and, 
 by representing to him that they were 
 members of an organized gang of criminals, 
 engaged in profitable operations, induced 
 him to Seek for admission to their ranks. 
 They then intimated to him that he must 
 satisfy them that he was qualified for such 
 admission by showing that he had com- ' 
 mitted some crime of a serious nature, 
 whereupon, according to the evidence, he 
 claimed that he had killed Gordon as the 
 result of an altrarcation. The detectives 
 were not peace officers, no charge was then 
 pending against the prisoner, nor did he 
 know that the detectives were such. 
 
 Held, that an inducement held out to 
 an accused person in consequence of 
 which he makes a confession must be one 
 having relation to the chfirge against him, 
 and must be held out by a person in 
 authority, in order to render evidence of 
 the coiifession inadmissible; that both 
 these grounds of objection were wanting 
 in this case, and that, therefore, the evi- 
 
28T 
 
 .CRIMINAL LAW. 
 
 288 
 
 (ience of the- confession was rightly 
 received. Rex~v. Todd, 13 M. R. 364. 
 
 2. Confession obtained by trick— 
 
 Conversation with person ..who represents 
 himself as having been sent by prisoner's 
 counsel, admissibility of — Evi&nce of per- 
 sons who overhear such conversation. 
 
 1. ttatements made by a prisoner in a 
 cell to a person whom he reasonably sup- 
 posed to be an agent sent by his counsel 
 to interview him regarding the defence are 
 as rnuch privileged as would be statements 
 made to the counsel himself. 
 
 2. Where persons concealed themselves 
 outside the cdl in a position to overhear 
 such statements in pursuance of a scheme 
 previously planned, the interview should 
 pe treated as one with several persons who 
 had fraudulently adopted the character 
 of the counsel's representatives, and the 
 cloak of privilege should be applied to 
 what was heard by the listeners without, 
 as well as the one within, the cell. Rex v. 
 Choney, 17 M.R. 467. 
 
 3. Deposition,, admissibility of — 
 
 Canada Evidence Act, 1893, s. 5 — Identity. 
 
 At the trial of the prisoner, an official 
 stenographer from the Province of Quebec 
 verified the deposition of John S. Douglas 
 taken in a civil action before the Superior 
 Court, at Montreal, and stated that the 
 prisoner resembled the person whose" 
 deposition he had taken in Montreal, but, 
 as this took place over six months pre- 
 viously, he could not sufficiently remem- 
 ber his face to swear positively that the 
 prisoner was really the same man, but 
 stated, however, that to the best of his 
 knowledge he was the same man, and that 
 'he had no doubt that he was the same man. 
 
 Held, (1) following Beg. v. Coote, L.R. 
 4 P.C., 599, and Reg. v. Connolly, 25 O.R. 
 151, that the deposition in question was 
 admissible in evidence, and could not be 
 excluded under section 5 of The Canada 
 Evidence Act, 1893. 
 
 (2) That there was sufficient evidence 
 of the identity of the prisoner with the 
 person whose deposition was put in to 
 warrant the Judge in submitting the 
 deposition to the jury, the question of 
 identity being one entirely for them. 
 Reg. V. Douglas, 11 M.R. 401. 
 
 4. Of similar acts at another time — 
 
 Criminal Code, 1892, ss. 354, 611 — Indict- 
 ment — Date of commission of alleged 
 offence — Judge's charge to jury — Fraudu- 
 lent removal of goods. 
 
 The accused were convicted by the 
 jury at the trial.on a, count for concealing 
 certain household goods foy the purpose 
 of defrauding the insurance company- by 
 which they had been insured by repre- 
 senting that they hfid been destroyed by 
 &e and collecting the insurance money 
 upon them, also on a count which alleged 
 a removal of said goods -on or about the 
 11th day of September, 1900, for a like 
 Iraudulent purpose. Both counts were 
 framed under section 354 of the Criminal 
 Code, 1892. Evidence was given at the 
 trial showing the removal of some of the 
 goods in question on the 13th of August, 
 1900, and of others on the 11th of Septem- , 
 ^ber, and, in his charge to the jury the trial 
 Judge did not distinguish between the 
 goods removed on 13th August and those 
 removed on 11th September, but left the 
 case to them in such a way that they could 
 convict on both counts or on either 'of 
 them as to both sets of goods. 
 
 In stating a case, the Judge certified 
 that, in his opinion, the evidence of the 
 removal of goods on the I3th of August 
 materially influenced the verdict of the 
 jury. 
 
 Held, that the conviction of the accused 
 on the count for concealment was right and 
 should be affirmed, but that^ although the 
 evidence of the removal in August was 
 probably admissible for the purpose -of 
 showing a criminal intent in the Septem- 
 ber removal, yet the conviction for the 
 removal should be set aside on the ground 
 of misdirection by the Judge in telling the 
 jury that they could convict for the 
 removal in Augjist, as the trial might .not 
 have been a fair one. Rex v. Hurst, 13 
 M.R. 584. ■ 
 
 6. Theft — Second trial — Testimony of 
 jurymen at first trial as to condition of 
 exhibit when in jury room. 
 
 The n48 of law forbidding the dis- 
 closure of what took place in the jury 
 room at the trial will not prevent a jury- 
 man at a trial which proved abortive 
 from giving evidence at a second trial 
 before another jury as to the condition 
 of an exhibit when examined in the jury 
 room at the first trial, for example, to 
 show that there were at that time barley 
 ends in a p\n-se which the prosecutor 
 identified as one which had been stolen 
 from him after he had been engaged in 
 threshing barley and which was, after 
 the theft, found in the possession of the 
 accused, who had claimed it to be his own. 
 
289 
 
 CRIMINAL LAW. 
 
 290 
 
 WoodvMrd v. Lecwett, 107 Mass. 453, and 
 Am. &Eng.Encyc. of taw, vol. 11, p. 546, 
 referred to. 
 
 Rex V. Boss, 15 W.L.R. 17, 17 Can. 
 Cr. Cas. 278. 
 
 6. Withdrawing case from jury — 
 
 Criminal Code, ss. 744, 746. 
 
 The prisoner was tried before a Judge 
 without a jury and convicted of having 
 stolen a purse containing $3.50 in money 
 from' the person of Mrs. D. whilst attend- 
 ing the Exhibition, at Winnipeg, on 12th 
 July, 1899. 
 
 The evidence showed that Mrs. D. 
 entered the grounds with a number of 
 others, having in her pocket the purse 
 containing the money; that she stopped 
 in a crowd to watch something that 
 attracted attention; that there was a 
 commotion in the crowd dming which 
 the prisoner pushed her or was pushed 
 against her; that, just as this occurred, a 
 constable saw the prisoner putting his 
 hand in a fold of her dress which he took 
 to be the situation of her pocket; that the 
 purse was missed within a few minutes 
 afterwards; and that the prisoner, being 
 arrested after an interval, had upon him 
 money in bills and silver, some of which 
 were of the denominations of the money 
 in Mrs. D.'s purse, but none of which 
 could be identified" as having been hers. 
 
 Counsel for the prisoner requested the 
 trial Judge to reserve a case for the 
 opinion of the Full Court upon the ques- 
 tion whether there was sufficient evidence 
 to have warranted the leaving of the case 
 to a jury, if a jury had been sitting. This 
 being refused, the prisonet, with the con- 
 sent of the Attorney-General, applied for 
 and obtained leave to appeal under section 
 744 of The Criminal Code. 
 
 Held, that the evidence did> not raise 
 more than a mere suspicion against the 
 prisoner and was not sufficient in law to 
 warrant a conviction, and that the prisoner 
 should be discharged. Reg. v. Winslow, 
 12 M.R. 649. 
 
 VII. Indictment or Information, 
 
 SirFPICIBNCT OP. 
 
 1. Identity with information — 
 
 The Court can entertain a motion to 
 quash an indictment at any time. 
 
 An indictment (within R. S. C. c. 174, 
 s. 140), need not foUow the exact language 
 of the information. That section does 
 not prevent the finding of any indictment 
 
 founded upon the facts disclosed in the 
 deposiijions. Reg. v. Howes, 5 M.R. 339. 
 
 2. Charge of doing an unlawful act 
 
 — Criminal Code, s. 517. 
 
 In drawing an information, or indict- 
 ment, under section 517 of the Criminal 
 Code, it is not sufficient to allege that the 
 accused "did unlawfully, in a manner 
 likely to cause danger to valuable property 
 without endangering life, or jjerson, do an 
 unlawful act" without giving some 
 particulars showing in what the alleged 
 unlawful act consisted and such an infor- 
 mation, or indiotriient, will be bad as not 
 disclosing any offence. 
 - A person undergoing imprisonment fol- 
 lowing a conviction worded in the same 
 way wiU be entitled to be discharged upon 
 habeas corpus. Rex v. Porte, 18 M.R. 
 222. 
 
 VIII. Lottery. 
 
 1. Bonds with chances of winning 
 prizes — Criminal Code, s. 236. 
 
 The accused had made sales of certain 
 securities called "Bon Panama,V which 
 had originally been issued in Paris, France, 
 in 1889, by the Panama Canal Company 
 under the authority of the laws of France. 
 These bonds promised the repayment of 
 400 francs in the year 1988, and carried 
 with them the chances of getting prizes 
 varying in amount from 500,000 francs to 
 1,000 francs given to the holders of the 
 lucky numbers by drawings to take place 
 at frequent intervals during the life of the 
 bonds. The accused, in canvassing pur- 
 chasers of the bonds, held out "as an 
 inducement the chance of winning one of 
 these prizes, and the belief that there was 
 such a chance influenced the purchasers in 
 paying the price which they gave for the 
 bonds. 
 
 Held, that the-accused was rightly con- 
 victed of selling lottery tickets contrary 
 to section 236 of the Criminal Code. Rex 
 v. Picard, 17 M. R. 343. 
 
 2. Disposing of property by a mode 
 of chance. 
 
 The defendant was convicted before a 
 P. M. of an offence under R. S. C, c. 159, 
 s. 2, which prohibits the "selling or offering 
 for sale of any lot, card, ticket or other 
 means or device for seUrng. or otherwise 
 disposing of any property real or personal 
 by lots, tickets or any mode of chance 
 whatsoever." 
 
291 
 
 CRIMINAL LAW. 
 
 292 
 
 His modus operandi was as follows: He 
 held a kind of concert in the street and 
 having gathered an audience he proceeded 
 to sell boxes of what he called "Parker's 
 Pacific Pens." Before selling the pens, 
 he placed in an empty box 100 envelopes, 
 each containing a $1 bill, 10 envelopes 
 with a $5 bill in each, 5 envelopes with a 
 $10 bill in each, and one envelope with a 
 $50 bill, making altogether $250 in 116 
 envelopes He also placed in the box 116 
 envelopes containing only blank pieces of 
 paper. Every person paying one dollar 
 for one box of pens was entitled to draw 
 one envelope, arid persons paying $5 for 
 a box of pens could draw eight envelopes; 
 but he would not take more than $5 from 
 any one person. If the $50 bill was 
 drawn before two-thirds of the pens were 
 sold, he would put another $50 bill in the 
 envelope and 50 envelopes with blank 
 papers. He said he did hot sell the 
 envelopes; that he would not take $20 for 
 one of them, but that he sold the pens 
 and distributed the money to advertise 
 the pens. 
 
 Held, following Begina v. Freiman, 18 
 O. R. 524, that the conviction was right. 
 
 Regina v. Dodd, 4 G. R. 390, and 
 Regina v. Jamieson, 7 O. R. 149, disting- 
 uished. Reg. V. Parker, 9 M. R. 203. 
 
 3. Winning of prize dependent part- 
 ly on skill — Device to evade the law 
 against lotteries— Criminal Code, s. 205. 
 
 Upon a case reserved for the opinion of 
 the Court as to whether the interposition 
 of a condition that the winner of a prize 
 in a lottery should shoot a turkey at, fifty 
 yards -in five shots, or, if a lady, that she 
 could choose a substitute to shoot for her, 
 would prevent a conviction under section 
 205 of the Criminal Code, 1892, it was 
 stated that the evidence showed that any 
 person could easily shoot a turkey under 
 ^ the circumstances. 
 
 Held, that it was a 'question for the 
 jury whether the making of that condition 
 was intended as requiring a real contest 
 of skill,' or merely as a device for covering 
 up a scheme for disposing of the property 
 by lot, that the verdict of guilty involved 
 a finding that it was merely a device, 
 that the evidence set out m the case 
 justified that finding and that the con- 
 viction should be affirmed. Reg. "v. 
 Johnson, 14 M. R. 27. 
 
 IX. Manslaughter. 
 
 1. Negligence causing death — Cor- 
 poration. 
 
 The defendant company was indicted, 
 under sections 213 and 220 of The Crim- 
 inal Code, 1892, for negUgence in main- 
 taining machinery in a condition dangerous 
 to life, resulting in the death of one of 
 its employees. 
 
 There was also a count for manslaughter. 
 
 Defendant demurred to the indictment. 
 
 Held, that, notwithstanding s-s (t) of 
 s. 3 of the Code, by virtue of which 
 sections 213 and 220 generally apply- to 
 corporations as well as individuals, an 
 indictment would not lie against cor- 
 poration for manslaughter; and, even if a 
 corporation were indicted .and convicted 
 of such an offence, there was no provision 
 of law under which any punishment- 
 could be imposed. 
 
 The punishment for manslaughter being 
 imprisonment for life under section 236 
 of the Code, section 958 did not apply and 
 a fine could not be imposed in lieu of 
 imprisonment. The general provision of 
 section 639 that, in case of the conviction 
 of a corporation, the Court "may award 
 such judgment and take such other aiid 
 subsequent proceedings to enforce the 
 same as are applicable to convictions 
 against corporations," could not be in- 
 terpreted so as to affect or modify the 
 positive enactment of section 236. Reg. 
 V. Cfreat West Laundry Company, 13 M. R. 
 66. 
 
 2. Peace officer shooting at fugitive 
 offender — Arrest without warrant^— Shop- 
 breaking — Criminal Code, 1906, ss. 30, 41, 
 461 — Reasonable and probable cause a 
 question for the jury to decide. 
 
 1. The question whether a peace oflScer, 
 imder section 30 of The Criminal Code, on 
 reasonable and probable grounds, believed 
 that an offence for which the offender 
 might be arrested without a warrant had 
 been committed and whether the ofiicer, 
 on reasonable and probable grounds, 
 believed that a fugitive had committed 
 that offence, is one for the jury and not 
 for the Judge to decide. 
 
 2. If a person, with intent to steal 
 something out of a shop or store, opens a 
 door leading into it by lifting the latch or 
 turning the knob and then enters the 
 store, although diiring business hours, for 
 the purpose of carrying out his intention, 
 he may be convicted of shop breaking 
 under section 461 of the Code. 
 
 3. When a peace officer, pursuing a 
 fugitive whom he had a right to arrest 
 without a warrant, found that the fugitive 
 was, in his opinion, likely to escape for 
 
293 
 
 CRIMINAL LAW 
 
 294 
 
 the time being owing to superior speed, 
 it is a question for the jury, on the trial 
 of the officer for manslaughter in killing 
 the fugitive by a shot from his revolver 
 intended only to wound and so stop his 
 flight, whether, under all the circum- 
 stances, the officer was justffied under 
 section 41 of the Code in such shooting 
 in order to prevent the escape of such 
 fugitive, or whether such escape could not 
 have been prevented by reasonable means 
 in a less violent manner. 
 
 See the text for the proper charge to 
 the- jury in such a case. Rex v. Smith, 17 
 M. R. 282. 
 
 X. Obstrtjcting OB Resisting. 
 
 1. Obstructing clergyman at Divine 
 service — No offence unless clergyman 
 rightfully officiating and lawfully appointed 
 —Property in church building erected by 
 congregation of one religious body, when 
 majority afterwards decides to join another 
 religious body — Indictment, sufficiency of. 
 
 1. An indictment, imder section 171 of 
 The Criminal Code, for unlawfully ftb- 
 structiug or preventing a clergyman or 
 minister, by threats or force in or from 
 celebra,ting Divine service or otherwise 
 officiating in any church, chapel, &c., is 
 sufficient ynthoxA an allegation that the 
 clergyman or minister obstructed was, at 
 the time of the offence, in lawful charge of 
 the church, chapel, &c. 
 
 2. To support a prosecution under that 
 section, however, it must be proved at the 
 trial that the clergyman or minister ob- 
 structed was, at the time of .the alleged 
 offence, either the lawful incximbent of the 
 church or was holding service with the 
 permission of the lawful authorities of 
 the churchi 
 
 .. 3. A church building erected by a con- 
 gregation of one reUgious body remains 
 the property of those who adhere to that 
 body, although a majority of the congre- 
 gation afterwards decides to join another 
 religious body and assumes to appoint a 
 clergyman or priest to hold services in the 
 church, and those who are opposed' to 
 such appointment may lawfully prevent 
 or obstruct the person so appointed from 
 officiating in the church. 
 
 Attorney Qeneral v. Christie, (1867) 13 
 Gr. 495; Attorney General v. Murdoch, 
 (1849), 7 Ha. 444, and Free Church oj 
 Scotland v. OveHoun, [1904] A.C. 515, 
 followed. Rex v. Wasyl Kapij, 15 M. R. 
 110. 
 
 2. Resi.ting a peace officer in the 
 execution of his duty. 
 
 When a person is charged before a 
 magistrate or two justices of the peace 
 with resisting and obstructing a peace 
 officer in the lawful performance of his 
 duty, the magistrate or justices should 
 observe the directions of section 786 of 
 The Criminal Code and obtain the con- 
 sent of the accused before proceeding to 
 try the case summarily, notwithstanding 
 that section 144 provides that everyone 
 is "liable on summary conviction before 
 two -justices of the peace to six months' 
 imprisonment with hard labor, or to a fine 
 of one himdred dollars, who resists" or 
 wilfully obstructs any peace officer in the 
 execution of his duty," etc. 
 
 Such offence is practically the same as 
 is referred to in sub-section e of section 783 
 of the Code, and the charge can only be 
 heard in a summary way subject to the 
 provisions of section 786. Reg. v. Crossen, 
 12 M.R. 571. ' 
 
 3. Obstructing Sheriff's officer— 
 
 Writs offi. fa. — Erroneous statement therein 
 of date of judgment — Validity of — Irregvr 
 iarity — Amendment — Sheriff — Duty of. 
 - The prisoner was convicted under an 
 indictment charging him with unlawfully 
 and wilfuUy obstructing a sheriff's officer 
 in the execution of three writs of fi. fa. It 
 was stated in each of the writs that the 
 judgment upon which it was issued had 
 been entered up on 25th February, 1892. 
 The judgments werp in fact entered up on 
 3rd February, 1887. Upon this point the 
 trial Judge reservedr a case for the opinion 
 of the Court of Queen's Bench. 
 
 Held, that where a writ is delivered to a 
 sheriff in proper form, and on its face regu- 
 lar, he is bound to execute it. That the 
 error was merely an irregularity which 
 might be amended, and that the prisoner 
 was rightly convicted. Reg. v. Monkman, 
 8 M.R. 509. 
 
 4. Obstruction of street— Bj/-Zat« pro- 
 hibiting persons from standing in groups on 
 streets or sidewalks so as to cause obstruction 
 to their free use by foot passengers. 
 
 A _ conviction under a by-law of a 
 municipality providing that "no persons 
 shall stand in groups * * * * on 
 any of the streets or sidewalks in said 
 city, so as to cause any obstruction to the 
 free use of said streets and sidewalks by 
 foot passengers," will be sustained upon 
 eyidence that the occupation of the street 
 by the defendants was such as would of 
 
295 
 
 CRIMINAL LAW. 
 
 296 
 
 necessity hinder, delay or impede the 
 progress of any foot passenger who 
 attempted to pass along, and it is not 
 necessary to show that some person was 
 actually obstructed. To obstruct is not 
 necessarily to render impassable, and there 
 may be obstruction, although the whole 
 width of the street is not occupied by the 
 crowd. Be Beitswwth, 11 W.L.R. 649. 
 
 See County Court, I, 9. 
 
 V XI. Speedy Teial by Jtjdge Withottt 
 Jury. 
 
 1-. Adding counts t indictment — 
 
 Criminal Code, 1892, s. 773. 
 
 When an accused person elects to take 
 his trial before a Judge without a jury on 
 the charge upon which he was committed, 
 or to answer which he was bound over to 
 take his trial under section 601 of The 
 Criminal Code, 1892,i leave should not be 
 granted, under section 773 of the Code, 
 for the addition to the indictment of new 
 or other charges for offences substantially 
 different, unless the accused elects to be 
 tried on such charges also by a judge 
 without a jury. 
 
 Rex V. Carriere, (1902) 14 M. R. 52, 
 followed. Bex v. Douglas, 16 M. R. 345. 
 
 2. Preferring indictment for charge 
 different from that in warrant of 
 commitment. 
 
 _ Held, that, notwithstanding the -pro- 
 visions of section 773 of The Criminal 
 Code, 1892, a- Judge should not, against 
 the wish of a prisoner, give his consent, at 
 the trial before him without a jury which 
 the prisoner has elected to take, to any 
 charge being preferred in the indictment 
 unless it is clear that, while it may be 
 more fornlaUy or differently expressed, it 
 is substantially the same charge as the 
 one on which he was committed for trial. 
 Rex V. Carriere, 14 M. R. 52. 
 
 3. Right to elect for speedy trial 
 after true bill found by grand jury. 
 
 The right of an accused person, bound 
 over by the magistrate at the preliminary 
 hearing to appear and take his trial at the 
 assizes, to elect, under section 825 of The 
 Criminal Code, to be tried by a Judge 
 without a iury,may be exercised evan after 
 the finding of a true bill by the grand jiuy 
 on an indictment upon the same charge 
 preferred by the Crown at the next 
 assizes, if such election is made before 
 plea to the indictment. 
 
 King v. Komiensky, (1903) 6 Can. Cr. 
 Cas. 524, distinguished. Bex v. Thomp- 
 son, Rex V. Foulkes, 17 M. R. 608. 
 
 XII. Summary Conviction. 
 
 1. Distress and imprisonment in 
 default of fine — Certiorari — Practice. 
 
 A statute permitted punishment by 
 imprisonment or penalty, or both. It 
 also provided that, where a fine is imposed 
 and not paid, a warrant of distress may 
 issue, and after a return, if not sufficient 
 goods, the defendant may be committed 
 to gaol. It also provided that no con- 
 viction should be quashed for want of 
 form or should be moved by certiorari 
 into any superior court. A conviction 
 under this statute directed the payment 
 of a fine and in default of payment a dis- 
 tress, and if no goods then imprisonment. 
 
 Held, that, as there was jurisdiction to 
 award distress and imprisonment, the 
 conviction was not bad, although by it the 
 jurisdiction was prematurely exercised — 
 such award at that time was surplusage 
 only. 
 
 A fiat for a writ of certiorari should not 
 issue, as of course, if the justice do not 
 appear upon notice of an application for 
 a summons that it should issue. 
 
 Notwithstanding the statutory pro- ' 
 vision a certiorari may issue where the 
 justice has no jurisdiction. Reg. v. 
 Galbraith, 6. M. R. 14. 
 
 2. Statement of offence. 
 
 Under~a by-law of the Village of Car- 
 man, providing that all pool rooms in the 
 village should be closed from 8.30 p.rn. 
 every Saturday until 7 a.m. of the fol- 
 lowing Monday and should remain closed 
 on every other day from 10 p.m. until 
 6 a.m. on the following day, the defendant 
 was convicted for that "he did refuse to 
 close a pool room occupied by him in the 
 Village of Carman after the hour of half- 
 past ei^ht, contrary to the by-law of the 
 Village in that behalf." 
 
 Held, that the conviction was bad and 
 should be quashed on the following 
 grounds: — 
 
 1. It did not state that the pool room 
 had been kept open after half-past eight 
 in the afternoon. 
 
 2. It did not state that it was on a 
 Saturday or Sunday the offence was com- 
 mitted; for, if it was not Saturday or 
 Sunday, the pool room might have been 
 lawfully kept open until ten o'clock p.m. 
 
297 
 
 CRIMINAL LAW. 
 
 298 
 
 3. The conviction did not give the date 
 when the offence had been committed 
 and, for aU that 'it stated, it might have 
 been before the by-law caine into operation, 
 or more than six months before the infor- 
 mation was laid . Re Fisher and the Village 
 of Carman, 15 M.R. 475.| 
 
 3. Unnecessary recitais in convic- 
 tion — Adjournment of hearing in absence 
 of accused. 
 
 1. A conviction in the form prescribed 
 by The Criminal Code wiU not be held bad 
 because it also contains recitals showing 
 certain adjournments of the hearing before 
 the justice, but not showing that no 
 adjournment had been made for a longer 
 period than the eight days allowed by 
 section 857, sub-section 1, of The Criminal 
 Code, although niore than- three months 
 had elapsed from the commencement to 
 the end of the proceedings. 
 
 It is not necessarily to be inferred from 
 the statement of certain facts, which were 
 not required to be stated, that other cir- 
 cumstances necessary to the jurisdiction 
 of the magistrate did not exist. 
 
 2. The hearing before a justice trying 
 a person for an offence punishable on 
 summary conviction may be adjourned 
 from time to time under section 853 of the 
 Code, although the accused be not present, 
 provided the adjoirrnments are made in 
 the presence and hearing of those parties, 
 solicitors or agents who are in fact present.^ 
 Proctor V. Parker, 12 M.R. 528. 
 
 XIII. 
 
 SuMMABT Trial op Indictable 
 Offence. 
 
 1. Appeals from magistrates. 
 
 The first clause of section 808 of The 
 Criminal Code, 1892, should be read as if 
 it were framed thus: "The provisions of 
 this Act relating to preUminary inquiries 
 before justices, except as mentioned in 
 sections 804 and 805, and the provisions 
 of part LVIII, shall not apply to any pro- 
 ceedings under this part," and, so con- 
 strued, it prevents an appeal from the 
 decision of a police magistrate on a sum- 
 mary trial under part LV of the Code. 
 
 Held, accordingly, that a mandamus to 
 compel a magistrate to take a f ecognizance 
 on an appeal from a conviction for theft 
 under section 783, sub-section (o), of the 
 Code, should be refused. Reg. v. Egan, 
 11 M.R. 134. 
 
 2. Information to be given prisoner 
 by magistrate when offering election 
 as to mode of trial — New trial. 
 
 A police magistrate proceeding, under 
 section 778 of the Criminal Code, to offer 
 a prisoner charged with an offence, for 
 wmch he cannot be tried summarily with- 
 out his consent, his choice as to the mode 
 of trial, should give the prisoner aU the 
 information set forth in paragraph (b) of 
 sub-section 2 of that section as re-enacted 
 by 8 & 9 Edw. VII, c. 9, and, if he omits 
 to inform the prisoner that he has the 
 option "to remain in custody or under 
 bail, as the Court decides, to be tried in 
 the ordinary way by the Court having 
 criminal jurisdiction," he does not acquire 
 jurisdiction to try the prisoner sum- 
 marily, although he consents thereto, and 
 a conviction following will be quashed as 
 made without jurisdiction. 
 
 King v. Walsh, 7 O. L. R. 149, followed. 
 
 Prisoner not discharged, but ordered to 
 be brought again before the magistrate 
 for the taking of proceedimgs de novo. 
 Rex V. Howdl, 19 M.R. 317. 
 
 3. Jurisdiction of police magistrate 
 
 — Common gaming house — Excessive fine — 
 Amending conviction — Criminal Code, sa. 
 773, 774, 777, 781, 1124— Certioran. 
 
 1. A police magistrate, though he 
 belongs to the class of officials designated 
 in section 777 of The Criminal Code who 
 may try summarily, with the consent of 
 the accused, a great number of serious 
 indictable offences, can only try summarily 
 without his consent a person charged with 
 the indictable offence of keeping a common 
 gaming house imder the powers conferred 
 by sections 773 and 774, as re-enacted by 
 chapter 9 of 8 & 9 Edward VII, and sec- 
 tion 781 limits the amount of the fine 
 upon conviction in such a case to $100, 
 including costs. 
 
 2. A conviction imposing a fine exceed- 
 ing SlOO in such a case cannot be amended, 
 under section 1124 of the Code, and should 
 be quashed on certiorari, as that section 
 only appUes to summary convictions under 
 part XV of the Code, notwithstanding 
 that that section was, in the revision of 
 1906, taken out of the Summary Convic- 
 tions part of the Code, where it formerly 
 stood as section 889, and placed in the 
 part headed "Extraordinary Remedies." 
 Beg. V. Randolph, (1900) 4 Can. Cr. Cas. 
 165, followed. Bex v. Shing, 20 M. R. 214. 
 
 4. Magistrate's clerk addressing the 
 accused for the Magistrate. 
 
 1. Section 785 of the Criminal Code, 
 1892, as re-enacted by 63 & 64 Vict., c. 46, 
 gives to the Police Magistrate of a city or 
 
299 
 
 CRIMINAL LAW. 
 
 300 
 
 town power to impose the same punish- 
 ment for a common assault as could be 
 jmiJosed upon a person convicted on an 
 indictment, when he has decided to treat 
 it as an indictable offence and is proceed- 
 ing under the summary trials part of the 
 Code. 
 
 2. The magistrate may ask the question 
 provided for by section 786 of the Code 
 Jhrough the mouth of his clerk. Bex v. 
 BidehaUgh, 14 M.R. 434. 
 
 6. Offer of election made by Magis- 
 trate's clerk for him — Warrant of com- 
 mitmen — Criminal Code, s. 1121. / 
 
 1. The offer of the magistrate to a pris- 
 oner of his right to elect for a summary 
 trial under section 778 of the Criminal 
 Code may be made through the magis- 
 trate's clerk speaking for him. 
 
 Rex v. Bidehaugh, (1903) 14 M. R. 434 
 followed. 
 
 2. On the apphcation of a prisoner 
 undergoing sentence imposed by a police 
 magistrate, after conviction on summary 
 trial of an indictable offence, for a habeas 
 corpus, on the ground that the .warrant of 
 commitment does not show that the 
 prisoner consented to be tried summarily, 
 the Judge may look at the conviction if it 
 is before him, and, if the conviction shows 
 such consent, section 1121 of the Code 
 appUes and the warrant should be held 
 good. 
 
 Beg. V. Sears, (1897) 17 C.L.T. 124, 
 c'istinguished. Rex v. Barnes, 21 M.R. 
 357. 
 
 6. Previous conviction — Grading sen- 
 tence within maximum provided-7-Appeal 
 against excessive sentence. 
 
 1. When a prisoner is convicted, on _a 
 summary trial before a police magistrate, 
 of theft, he caimot be sentenced, under 
 sub-section 2 of section 386 of the Crim- 
 inal Code, to more than seven years' 
 imprisonment^ although he has been pre- 
 viously convicted of theft, unless such 
 previous conviction has been charged in 
 the information by analogy to section 8151 
 and proved in accordance with section 
 963, and, where in such a case a greater 
 punishment is inflicted, the Covact of 
 Appeal, upon an application imder sub- 
 section 2 of section 1016 of the Code, wiU 
 set aside the sentence and pass what it 
 considers a proper sentence. 
 
 Qticere, whether the procedure provided 
 in the Code permits of inserting charges 
 of previous convictions in an information 
 
 leading up to the, preliminary hearing of 
 a charge of an indictable offence: 
 
 2. When a previous conviction is not 
 charged in the indictment or information, 
 neither a judge nor a magistrate has any 
 right to ask a prisoner, after conviction, 
 whether he has been previously convicted 
 or not, either with the view of ascertaining 
 whether the prisoner is liable to any in- 
 creased punishment in such cape, or with 
 the view of determining what the proper 
 sentence, within the ordinary maximum 
 provided by the statute in the particidar 
 case, should be. 
 
 Sembk, previous convictions caimot be 
 in any way considered in passing sentence 
 unless they have been charged in the 
 indictment or information. Rex v. Edwards, 
 17 M. R. 288. 
 
 (This has not been followed in subse- 
 quent cases) Ed. 
 
 7. Taking the evidence in short- 
 hand — Certiorari. 
 
 1. The Criminal Code contains no pro- 
 vision as to how the evidence of witnesses 
 at the summary trial of an indictable 
 offence shall be taken down, and a con- 
 viction entered by the magistrate will not 
 be quashed on certiorari because the 
 evidence was taken down by a shorthand 
 reporter. 
 
 King v. Klein, (1909) 16 Can. Cr. Cas. 
 503, approved. 
 
 2. Section 793, providing that the 
 magistrate shall transmit the depositions 
 of the witnesses to the proper officer, 
 does not, by inference, require that the 
 depositions must be taken in longhand by 
 the magistrate himself. Bex v. Bond, 21 
 M. R. 366. 
 
 XIV. Trial Bepokb Jury. 
 
 1. Juror not understanding English 
 
 — Mistrial. 
 
 The fact that one of the jury sworn to 
 try the prisoner did not thoroughly under- 
 stand the English lan^age is no ground, 
 after trial and conviction, for holding 
 that there has been a mistrial, or for 
 granting a new trial. 
 
 It is too la,te to challenge a juror after 
 he has been sworn, even if the ground for 
 challenge was not known at the time. 
 
 Ignorance of the English language 
 wOmd not in this Province be a ground of 
 challenge of a juror. 
 
 The provisions of section 746 of The 
 Criminal Code respecting the granting of 
 a new trial, when it is imperative, and 
 
301 
 
 CRIMINAL LAW. 
 
 302- 
 
 when discretionary, explained. Beg- v. 
 Earl, 10 M. R. 303. 
 
 2. Postponement of trial — Cancelling 
 •postponement and proceeding with trial. 
 
 The Judge at the assizes may, after 
 postponing till the next assizes the trial of 
 a person accused of miu:der on account of 
 the absence of a witness, order the trial 
 to be proceeded with at the same assizes 
 if the witness is produced. Rex v. Redd, 
 21 M. R. 785. 
 
 3. Right of Crown Counsel to reply 
 when no witnesses called for defence. 
 
 Under section 944 of the Criminal Code, 
 notwithstanding the proviso at the end 
 that the right of reply shall be always 
 allowed to the Attorney General or 
 Solicitor General or to any counsel acting 
 on behalf of either of them, when no 
 witnesses are examined for the defence, 
 the practice on the trial of a oivU action 
 should be followed, and counsel for the 
 prosecution should address the jury first, 
 counsel for the defence having the right 
 to reply. 
 
 Beg. Y.LeBlane, 13 C. L. T. Occ. N. 
 441. 6 Can. Cr. C^. 348. 
 
 4i Right to be tried by jurors skilled 
 in the language of the defence — 
 
 Challenge to array — Demurrer — Case re- 
 served—Writ of error — Ultra vires — Con- 
 stitutional law. 
 
 The prisoner, having pleaded to an 
 indictment for unlawfully wounding with 
 intent to maim, demanded a jury com- 
 posed for the one-half at least of persons 
 skilled in the language of the defence — 
 that language being the French language. 
 The statutes of Manitoba did not provide 
 for the summoning of such jurors, and 
 there were not sufficient jurors on the 
 panel so skilled. The prisoner then chal- 
 lenged the array of jurors on that ground. 
 The Crown demurred, and judgment was 
 given allowing the demurrer by the judge 
 presiding at the assize. The learned 
 judge then reserved a case for the con- 
 sideration of the Court for Crown cases 
 reserved. ' 
 
 Held, 1. That a challenge to the ap:ay 
 of jurors is a question of law arising on 
 the trial, which may be reserved within 
 the meaning of R. S. C, c. 174, s. 259, but 
 
 2. (DuBuc, J., dissenting) That, judg- 
 ment having been given on the demurrer, 
 it had become a matter of record and the 
 question could not be reserved, a writ of 
 error being the proper remedy. 
 
 The case was, therefore, directed to be 
 quashed. 
 
 Beg. v. Faderman, 14 Jur. 377, and Reg. 
 V. O'Bourke, 32 U. C. C. P. 388, considered 
 and commented on. 
 
 Per DuBUC, J. — The jury, when empan- 
 elled and sworn, become a part of the 
 constitution of the Court, but the selecting 
 and summoning of them are matters of 
 criminal procedure, over which the Par- 
 liament of Canada has exclusive jurisdic- 
 tion. 
 
 Per DuBTJC, J., also— Sec. 167 of The 
 Criminal Procedure Act, R. S. C, c. 174, 
 is intra vires of the Parliament of Canada, 
 and in this Province a prisoner, if he so 
 desires, is entitled to be tried by a jiu'y 
 composed for the onejialf at least of 
 persons skilled in the language of the 
 defence, if that language is the French or 
 English language. Beg. v. Plante, 7 M. 
 R. 637. 
 
 XV. Vagrancy. 
 
 1. Gaming — Idving by means of — Find- 
 ings of fact by magistrate — Evidence — Suf- 
 fmency of. 
 
 H. was convicted before a, police magis- 
 trate and sentenced to a term of imprison- 
 ment under R. S. C, 1886, c. 157, a. 8,upon 
 a charge of haying no peaceable profession 
 or calling to maintain himself by, but who, 
 for the most part, supported himself by 
 gaming, and of being a loose, idle or dis- 
 orderly person, and a vagrant. 
 
 On an application for a writ of habeas 
 corpus. 
 
 Held, that the weight to be given to the 
 evidence it was the function of the magis- 
 trate to deci^ie, and the Court could only 
 search the evidence, ascertain what points 
 might possibly be found in favour of the 
 prosecution, and consider whether, if the 
 magistrate found all of these against the 
 accused, there was reasonable ground for 
 inferring that the accused was guilty of the 
 crime charged. 
 
 Held, also, that, although the case was 
 exceedingly weak, the Court could not say 
 that upon no view of the evidence was it 
 possible for the magistrate to make the 
 mferences necessary to support the infor- 
 mation, and the application was, there- 
 fore, refused. 
 
 Heldj also, that it is clearly quite an 
 insufficient compliance with the statute 
 for the prosecution to shew merely that 
 an accused party has no apparent occu- 
 pation or calling, other than gaming, and 
 that he gambles frequently and habitually. 
 Reg. V. Herman, 8 M.R. 330. 
 
UKIMINAL LAW. 
 
 304 
 
 2. Gaming — Living hy means of — Evi- 
 dence — Sufficiency of. 
 
 R. S. C, c. 157, s. 8, provides that: "All 
 
 persons who, (A;) have no 
 
 peaceable profession or calling to maintain 
 themselves by, but who do, for the most 
 part, support themselves by gaming, 
 
 are loose, idle or disorderly 
 
 persons, or vagrants, within the meaning 
 of this section. ,2. Every loose, idle or 
 disorderly person, or vagrant shall, upon 
 
 > summary conviction be 
 
 deemed guilty of a misdemeanor, and shall 
 be Uable," etc. 
 
 D. was convicted before a police magis- 
 trate under above section and sentenced 
 to imprisonment. 
 
 On an application for a writ of habeas 
 corpits, 
 
 Held, that, tcS support such a conviction, 
 there must be evidence of four distinct 
 propositions: (1) That the accused had 
 no peaceable profession or calling to sup- 
 port himself by; (2) That he practised 
 gaming; (3) That, from this practice, he 
 derived some substantial profits; (4) That 
 these profits constituted the larger portion 
 of his means of support; and, there being 
 no reasonable evidence to warrant a find- 
 ing of either the third or fourth proposition, 
 it could not be assumed that because of 
 the want of a visible occupation^ and of 
 the accused being greatljr addicted to 
 gambling, the latter contributed mainly 
 to his support. 
 
 The prisoner was discharged. Reg. v. 
 Davidson, 8 M. R. 325. 
 
 3. Gaming— Lining' hy means of—Suf- 
 ficiency of evidence — Habeas corpus — 
 Criminal Code, s. 238 (J). 
 
 The prisoner was convicted under para- 
 graph (1) of section 238 of the Criminal 
 Code for that^ having no peaceable pro- 
 fession or calhng to maintain himself by, 
 he for the most part supported himself by 
 gaming and was thereby a loose, idle 
 and disorderly person and a vagrant. ' 
 
 There was evidence that, although he 
 was a carpenter by trade, he had not been 
 working at it or any other trade for about 
 seven months prior to his arrest, that he 
 had been making money by taking a rake- 
 off from men resorting to his house who 
 gambled there and that he had not only 
 
 Eaid his rent for several months back but 
 ad'^lso repaid $25 of borrowed money 
 during that period and had supported 
 himseU and faniily in some way. 
 
 Heldj that the inagistrate was justified 
 in findmg that the prisoner had for the 
 
 most part supported himself by gaming, 
 and that the prisoner was not entitled to 
 be discharged upon habeas corpus. Rex v. 
 Kohtyla, 21 M. R. 197. 
 
 4. Prostitute not giving a satisfac- 
 tory account of herself — Criminal Code, 
 section 238 (i) — Habeas corpus. 
 
 An information under paragraph (i) of 
 section 238 of the Criminal Code charging 
 the accused with being a common prosti- 
 tute -or night walker not giving a satis- 
 factory account of hers^, and being 
 thereby a loose, idle and disorderly person 
 and a vagrant, is not sufficient without also 
 alleging that she has been asked to ^ve 
 an account of herself, and no crimmal 
 offence is stated without such aUegation. 
 
 A conviction on a plea of guilty to such 
 a charge does not sufficiently disclose any 
 criminal offence and the accused will be 
 entitled to be released upon habeas corpus 
 from imprisonment under a sentence fol- 
 lowing such conviction. 
 
 Reg. v.Levecque, (1871) 30 U. C. R. 509, 
 and' Rex v. Harris, (1908) 13 Can. Crim. 
 Cas. 393, followed. Rex v. Pepper, 19 
 M. R. 209. 
 
 XVI. Warbant op Commitment. 
 
 1. Defects. 
 
 Under 31 & 32 Vic, o. 30, one justice 
 may sign a Warrant of commitment. 
 
 A warrant may be partly written and 
 partly printed. 
 
 A warrant was addressed to the keeper 
 of the common gaol at the City of Win- 
 nipeg, instead of to the keeper of the 
 common gaol of the Eastern Judicial Dis- 
 trict. 
 
 Held, sufficient. 
 
 The commitment stated the offence as 
 follows: "On or about the 4th day of 
 May, 1886, did embezzle the sum of $104, 
 being the property of the Dominion 
 Express Company." 
 
 Held, insufficient. Beg. v. Holden, 
 3 M. R. 579. 
 
 2. Defective Warrant. 
 
 A warrant of commitment must direct 
 the gaoler to receive and retain the 
 prisoner, otherwise it will be quashed. Beg 
 V. Barnes, 4 M. R. 448. 
 
 • 3. Gaming house — Poker — Playing 
 cards. 
 
 Held, 1. That keeping a gaming house, 
 is an indictable offence at common law. 
 
 2. That the cards, &c., referred to iii 
 section 3 pf 38 Vic, c 41, must be such as 
 
305 
 
 CRIMINAL LAW. 
 
 306 
 
 are ordinarfly used in'playing an unlawful 
 game. 
 
 3. That a commitment for unlawfully 
 keeping a common gaming house suff- 
 iciently describes an offence, so that the 
 party committed cannot be discharged on 
 the ground of there being any defect on 
 the lace of the commitment in merely 
 thus describing the offence. 
 
 4. That "poker" is not in itselE an un- 
 lawful game. , 
 
 5. That a commitment cannot be 
 quashed where the magistrate had such 
 evidence before him as would warrant 
 him in committing. Reg. v. Shaw, 4 M. 
 R. 404. 
 
 4. Jurisdit^ion of Indian agent — 
 
 Indian Act, s. 117; 53 Vic. c. 29, s. 9 (Z)),- 
 and 57-8 Vic., c. 32, s. 8 (D). 
 
 A warrant of commitment signed by an 
 Indian agent, under the provisions of The 
 Indian Act, must clearly show that the 
 agent had jurisdiction at the place where 
 the offence was committed; and, although 
 by s. 8 of c. 32 of 57-8 Vic. (D), substituted 
 for s. 117 of The Indian Act, the agent 
 would have jurisdiction all over Manitoba, 
 there is no ground for assuming that the 
 offence was committed in Manitoba when 
 no place is specified. 
 
 Such a warrant could only be supported 
 under s. 108, s-s 2, of The Indian Act or 
 section 886 or 889 of The Criminal Code, 
 1892, or amended if a proper conviction 
 were shown. 
 
 The prisoner was in custody imder a 
 warrant defective in this respect, and 
 offered some evidence to show that the 
 conviction was equally defective. 
 
 Held, that a writ of habeas corpus 
 should be issued to enable him to apply 
 for his release. Beg. v. Kennedy, 10 M. 
 R. 338. 
 
 6. Substitution of corrected com- 
 mitment. 
 
 Prisoner had been committed under a 
 warrant which was defective. Subse- 
 quent to the service on the jailor of a 
 writ of habeas corpus he received another 
 warrant of commitment which was regular. 
 
 Held, that the second warrant of com- 
 mitment was valid, and sufficient to 
 detain the prisoner in custody. Reg. v. 
 Hmse, 2 M. R. 58. 
 
 6. Substitution of valid for defective 
 conviction and commitment — Sum- 
 mary conviction. 
 
 The prisoner was convicted under sub- 
 section (b) of section 177 of The Criminal 
 Code, 1892, for an indecent exposure of 
 his person and sentenced to three months 
 imprisonment. Neither the conviction 
 nor the warrant of commitment stated, 
 although the evidence tended to show, 
 that the act had been done wilfully. He 
 then applied for a writ of habeas corpus. 
 
 Held, per Mathers, J., following Re 
 Plunkett, (1895) 1 Can. Cr. Ca. 365, that 
 the prosecution should be permitted, on 
 the hearing of the appMcation, to substi- 
 tute a new conviction and warrant 
 containing the omitted word: and, the 
 substitution having been made, that the 
 appUcation shohld be refused, but without 
 costs. 
 
 Held, also, by the Full Court, that no 
 appeal to the Full Court lies in this 
 Province from the decision of a single 
 Judge refusing a habeas corpus application, 
 though a prisoner may make successive 
 apphcations for the writ to one Judge 
 after another, or he may make a direct 
 application to the Court in banc. 
 
 Ex parte Alice Woodhall, (1888) 20 Q. B. 
 D. 832, referred to. Rex v. Barre, 15 M. 
 R. 420. 
 
 XVII. Miscellaneous Cases. 
 
 1. Appeal in criminal cases — Ques- 
 tions of law not arising upon the record 
 -^Refusal to reserve a case — Writ of error. 
 
 G. was indicted for "assault with intent 
 to murder." At the trial certain evidence 
 was tendered for the Crown, which the 
 prisoner's counsel objected to as inad- 
 missible. The evidence was admitted, 
 and the prisoner's counsel then applied to 
 have a case reserved. The learned judge 
 refused the application. The prisoner 
 obtained a writ of error. 
 
 Held, that a writ ol error does not lie 
 upon such refusal, and that section 266 
 of The Criminal Procedure Act of Canada 
 is a restriction, and not. an enlargement, of 
 the common law scope of writs of error. 
 Reg. V. GiVboy, 7 M. R-. 54. 
 
 2. Arrest without warrant — Detention 
 of prisoner. 
 
 1. A peace officer who arrests a person, 
 charged with obtaining goods by false 
 pretences with intent to defraud, on a 
 request by telegram from another Prov- 
 ince of Canada, where the offence is alleged 
 to have been conmiitted, may justify the 
 arrest anddetention of his prisoner imder 
 either section 22 or section 552, s-s. 2, of 
 
307 
 
 CRIMINAL LAW. 
 
 308 
 
 the Criminal Code by alleging, (a) that the 
 prisoner has actually committed such 
 offence or, (b) that he, the peace oflScer, on 
 reasonable and probable grounds, believes 
 that the prisoner committed the offence 
 charged. 
 
 2. Section 22 of the Code operates, not 
 merely to protect the officer from civU or 
 criminal proceedings, but also to authorize 
 the arrest and make it lawful; and it 
 apphes, not only when the arrest could be 
 made by any person without a warrant, 
 but also to cases in which a peace officer 
 only may so arrest. 
 
 3. Paragraph (a) at the end of sub- 
 section 7, section 552 of the Code, apphes 
 only to cases coming solely within sub- 
 section 7, and it is not necessary in other 
 cases to bring the person arrested before 
 a justice of the peace before noon of the 
 day following the arrest. Reg. v. Chutier, 
 12 M. R. 183. 
 
 3. Bail for prisoner committed to 
 trial for murder — Justifiable homicide — 
 Self defence. 
 
 When the depositions taken at the pre- 
 liminary hearing of a charge of murder 
 clearly show that the deceased died by 
 the hand of the prisoner and are such as 
 to justify his conamitment for trial and 
 sufficient to estabhsh a case to go to the 
 jury, bail should be refused,^ although it 
 also appears from the depositions that the 
 prisoner might be able to convince the jiiry 
 at the trial that his act was done in sefi 
 
 Rex V. Greenacre, (1837) 8 C. & P. 594; 
 Rex v.Blythe, (1909) 19 O. L. R. 386, and 
 Queen v. Mullady, (1868) 4 P. R. 314, 
 followed. Rex v. Monvoisin, 20 M. R. 
 568. 
 
 4. Duplicity — Commitment — Two of- 
 fences in same charge. 
 
 The charge against the prisoner, who 
 was brought up on a habeas corpus, was , 
 "for keeping a bawdy house for the resort 
 of prostitutes in the City of Winnipeg." 
 "Keeping a bawdy house" is in itself a 
 substantive offence, so is "keeping a house 
 for the resort of prostitutes." 
 
 Held, nevertheless, that there was but 
 one offence charged,- and that the commit- 
 ment was good. Reg. v. McKenzie, 2 
 M. R. 168. 
 
 6. Forgery of on6 of several signa- 
 tures — Interested witness. 
 
 A joint and several bond was executed 
 by the prisoner under an assumed name 
 
 for a -fraudulent purpose. -There was no 
 proof whether the other signatures had 
 been forged or not. 
 
 Held, that an indictment that the 
 prisoner had forged the bond was sus- 
 • tained. 
 
 The bond was executed in order to 
 obtain a marriage license. It having been 
 obtained, a form of marriage before a 
 person without authority to celebrate 
 marriage was gone through. 
 
 Held, that the issuer of the license was 
 not an incompetent witness as a person 
 interested or supposed to be interested. 
 
 Per -Dtjbuc, Jj^-Neither was the wpman 
 incompetent as a witness. Reg. v. Deegan, 
 6 M. R. 81. 
 
 6. Fraud in concealing one's own 
 goods. 
 
 Under s. 354 of The Criminal Code 
 (1892), which declares that every one is 
 guilty of an indictable cfience who, for 
 any fraudulent purpose, takes, obtains, 
 removes or conceals anjrthing capable of 
 being stolen, the prisoner was convicted 
 on the charge that he had concealed a 
 quantity of his own goods capable of 
 being stolen, for the purpose of defrauding- 
 the insurance companies which had insured 
 the goods, and leading the companies to 
 beUeve that the goods had been destroyed 
 by a fire which had previously taken place. 
 
 In a case reserved for the opiniod of the 
 Court as to whether such conviction was 
 proper, the Judge at the trial found as a 
 fact that the prisoner had concealed the 
 goods with the intent and purpose of 
 obtaining from the insurance companies 
 "their value and also keeping the goods for 
 himself, but it did not appear by the case 
 stated whether the prisoner had actually 
 made any claim. under the pohcies or not. 
 
 Held, that the prisoner was properly 
 convicted, and also that, although the 
 goods were his own goods, thay came 
 within the meaning of the expression 
 "things capable of being stolen." Reg. v. 
 GoUstauh, 10 M. R. 497. 
 
 7. Conviction for playing or looking 
 on in a common gaming house — 
 
 Charging offence in the alternative — Am,end- 
 ment of conviction — Joinder of several per- 
 sons charged with offence-criminal law — 
 Criminal Code, ss. 229, 725, 985, 986, 1124. 
 1. Section 725 of The Criminal Code, 
 which permits the statement in an infor- 
 mation or conviction that an offence has 
 been committed in different modes, &c., 
 
309 
 
 CRIMINAL LAW. 
 
 310 
 
 does not apply so as to warrant a convic- 
 tion under section 229 for -playing or looking 
 on while others are playing in a common 
 gaming house, as these are separate and 
 distinct offences. 
 
 King v. Ah Yin, (1902) 6 Can. Cr. Cas. 
 63, followed. 
 
 2. Such conviction may, however, be 
 amended xmder section 1124, on being 
 brought before the Court by certiorari, so 
 as to mate it a conviction for playing in a 
 common gaming house if the evidence 
 shows the commission of that offence, 
 and, when there is the statement of a 
 witpess that the accused were all playing 
 on the occasion in question, and it is shown 
 that gaming instruments were found in 
 the room at the time of the arrest, which 
 fact furnishes prima fade evidence under " 
 sections 985 and 986, the proof is sufficient. 
 
 King. v. Meikleham, (1905) 10 Can. Cr. 
 Cas. 382, followed. 
 
 3. Any number of persons may be 
 charged and convicted jointly with the 
 offence of plajdng in a common gaming 
 house, if they were all actually present 
 and taking part in the came game. Rex 
 V. Toy Moon, 21 M. R. 527. 
 
 8. Habeas Corpus Act, 31 Ch. 11 
 C. 2, s. 2 — Summary trial — Jurisdiction 
 of Police magistrate. 
 
 1. A prisoner's right to habeas corpus 
 in Manitoba depends on the Habeas Cor- 
 pus Act, 31 Ch. II, c. '2, s, 2, and the writ 
 cannot be taken out on behalf of a prisoner 
 under sentence of conviction by a police 
 mag^trate, exercising the extended juris- 
 diction to try indictable offences sum- 
 marily conferred by section 777 of the 
 Criminal Code, unless an absolute want 
 of jurisdiction is shown. 
 
 Re SprouU, (1886) 12 S. C. R. 141, fol- 
 lowed. 
 
 2: A police magistrate of a city or- 
 incorporated town, who is also a police 
 magistrate in and for the whole Province, 
 when acting under section 777 of the Code, 
 may try offences committed anywhere in 
 the Province. 
 
 3. Such police magistrate at the sum- 
 mary" trial of an indictable offence may, 
 under section 951 of the Code, convict the 
 accused of any offence included in the 
 offence charged, although the whole 
 offence charged is not proved, without 
 again offering the prisoner an election as 
 to the mode of trial. Rex v. McEwen, 
 17 M. R. 477. 
 
 9. Having in possession goods stolen 
 abroad. 
 
 Upon a charge of having in possession 
 goods stolen in a foreign country, it is not 
 always necessary to prove the state of the 
 law of that country. 
 
 Per Tatlor, C.J. — ^When the Crown 
 proved that the prisoner had taken, and 
 had in his possession in Canada, property 
 which he had, in any other country, taken 
 under such circumstances that, had he 
 taken it in like manner in Canada, it 
 would, by the laws of Canada, have been 
 felony, then the offence was proved. 
 
 2. And an allegation in the indictment 
 that the prisoner "feloniously had taken 
 and carried away" the goods, does not 
 impose any additional bm-den of proof 
 upon the Crown. 
 
 Per KiLLAM, J. — It may be necessary, 
 imder certain circumstances, for the 
 Crown to prove the foreign law as an 
 element in the moral quality of the act. 
 Reg. v. Jewell, 6. M. R. 460. 
 
 10. Jurisdiction of County Court 
 
 Judge— Appeai from summary conviction 
 by magistrate — Stating case for opinion of 
 Court of Appeal. 
 
 A County Court Judge, hearing an 
 appeal from a summary conviction by a 
 magistrate, has no power imdeir the 
 Criminal Code to state a case for the 
 opinion of the Court of Appeal. 
 
 Rex V. Mcintosh, 14 W. L. R. 548; 17 
 Can. Cr. Cas. 295. 
 
 11. Libel — Evidence to show that accused 
 cherished ill feeling towards person libelled 
 or her relatives — Inferences from similarity 
 of style and use of common terms in libellous 
 and admitted vrritings — Proof of hand- 
 writing by evidence of experts only. 
 
 1. At the trial for criminal Ubel where 
 the matter complained of was libellous 
 per se, the prosecution shoidd not be 
 allowed to give evidence of acts of hos- 
 tiUty on the part of the accused towards 
 the prosecutor or relatives unconnected 
 with the alleged libel, for the purpose of 
 leading to the inference that the accused 
 cherished feelings of iU-will towards the 
 prosecutor and was therefore likely to 
 have been the person who published the 
 Ubel; and, if such evidence has been 
 admitted, although without obiection,,the 
 jury should be told that they should give 
 no weight to it. 
 
 2. A comparison of style and conunon 
 forms of expression in the libellous and 
 admitted writings should be by experts or 
 
311 
 
 CRIMINAI/ LAW. 
 
 312 
 
 skilled witnesses and, without such evi- 
 dence, the trial judge should not invite 
 the jury to draw any inference from sim- 
 ilarity in style or expressions. 
 
 Scott V. Cr&rar, (1886) 14 A. R. 152, fol- 
 lowed. 
 
 Per Perdue, J.'A. — ^When the only evi- 
 dence of the handwriting of the accused 
 is that of experts, and where the experts 
 called by the prosecutor are contradicted 
 by an equal number of experts called by 
 the defence, the accused denying the 
 authorship on oath, the jury should be 
 told that the prosecutor had failed to 
 establish that the letters had been written 
 by her. JliJea; v. Law, 19 M. R. 259. 
 
 _ 12. Making of erasures in voters' 
 list — Dominion Elections Act, 1900, ss. 21, 
 22, 23, il— The Franchise Act, 1898, s. 10. 
 
 1. When a returning officer, appointed 
 to hold a Dominion election for an electoral 
 district in Manitoba, selects one of the 
 copies of lists of voters sent to him by the 
 Clerk of the Crown in Chancery pm-suant 
 to section 21 of the Dominion Elections 
 Act, 1900, as the one which he wiU certify 
 and forward to the deputy returning 
 officer, as required by section 41, for use 
 
 - at one of the polling sub-divisions, that 
 copy so selected becomes a voters' Ust 
 within the meaning of section 503 of The 
 Criminal Code, 1892, and it is an offence 
 under that section for the returning officer 
 wilfully to erase names of voters from it 
 either before or after he certifies it and 
 forwards it to the deputy. 
 
 2. Such returning officer has no author- 
 ity, under the Dominion Elections Act, 
 1900, to create the voters' fists upon which 
 the election is to be held, or, under sections 
 22 and 23 of the Elections Act, to make a 
 new division of the constituency into 
 polling subdivisions abd re-arrange the 
 names of the voters for each when there 
 are in fact polling divisions already estab- 
 lished and used at the last Provincial 
 election for the same territory, whether or. 
 not such polling divisions had been estab- 
 lished in strict accordance with the re- 
 quirements of the Provincial statutes.' 
 
 3. The returning officer who wilfully 
 makes such erasures from a voters' list 
 cannot escape punishment on. the ground 
 thai he had to make them in consequence 
 of having made new polling subdivisions 
 which he had no authority to make. 
 
 4. The fact that the heading of the list 
 of voters in question contained the words 
 "Registration District No. 3," instead of 
 "Polling Division No. 3," did not justify 
 
 the returning officer in believing, if he did 
 believe, that there were no polling divis- 
 ions, since tlje territory of No. 3 was 
 accurately describ'ed in the same ieading. 
 The Court, having held that the trial 
 Judge had erred in withdrawing the case 
 from the jury and directing a verdict of 
 not guilty, ordered a new trial. Bex v. 
 Duggan, 16 M. R. 440. 
 
 13. Negativing statutory exceptions 
 
 — Conviction — Statutory exceptions not nega- 
 tived. 
 
 A statute declared certain acts com- 
 mitted by "any person not legally em- 
 powered .... without the owner's 
 permission," to be unlawful. 
 
 A conviction, stating the acts done but 
 no;t negativing power and permission. 
 
 Held, bad. Beg. v. Morgan, 5 M. R. 63. 
 
 14. Recognizance of bail — Condition 
 to appear for sentence — Conviction quashed 
 and new trial ordered — Estreating recog- 
 nizance. 
 
 The accused was convicted by a jury of 
 a criminal offence, but the Judge reserved 
 a case as to the admissibility of certain 
 evidence and admitted the prisoner to 
 bail. The condition of the fecognizance 
 entered into was that the prisoner would 
 appear at the next sitting of the Court to 
 receive sentence. 
 
 Afterwards the FuU Court quashed the 
 conviction and ordered a new trial. The 
 accused not having appeared at the next 
 sitting, proceedings were taken to estreat 
 the recognizance and for the collection of 
 the named penalties. 
 
 Held, that the condition of the recog- 
 nizance was not broken and that, the 
 purpose of the accused's attendance 
 havmg failed, the sureties were not boimd 
 for his appearance. RoU of estreated 
 recognizance and fi. fa. issued thereon set 
 
 Queen V. Wheeler, (1865) 1 C. L. J. N. S. 
 272, and Queen v. Bitchie, (1865) 1 C. L. 
 J. N. S. 272, followed. Beg. v. Hamilton, 
 12 M. R. 507. 
 
 16. Secrecy of the ballot — Compelling 
 witness to disclose for whom he voted — 
 Dominion Electi ns Act, s. 71. 
 
 In a prosecution of a deputy returning 
 officer under the Dominion Elections Act 
 for fraudulently putting into a ballot box 
 divers papers purporting to be ballot 
 papers, but to his knowledge not being 
 ballot papers, and beinj other than the 
 
313 
 
 CRIMINAL LAW. 
 
 314 
 
 ballot papers which he was authorized by 
 law to put in the ballot box, 
 
 Held, notwithstanding section 71 of 
 the Act, that voters may be required at 
 the trial to state for whom they have 
 marked their ballots: Queen v. Beardsall, 
 1 Q. B. D. 425, followed. 
 
 Such evidence cannot be ruled out as 
 secondary evidence of the contents of 
 written documents, because under the 
 Act there is no way of identifying the 
 particular ballot marked by any witness. 
 Reg. v. Saunders, 11 M. R. 559. 
 
 16. Sunday — Habeas Corpus — Evidence. 
 
 Judicial proceedings should not be con- 
 ducted on Sunday and, where the prisoner 
 was committed for trial at a preliminary 
 investigation before a magistrate on a 
 Sunday, 
 
 , Held, that he was entitled to his dis- 
 charge, following Mackalley's case, 9 Co. 
 66, and Waite v. Hundred of Stoke, Cro. 
 Jac. 496. 
 
 Held, also, following Eggington's case, 2 
 E. & B. 717, and ReBailey, 3 E. & B. 607, 
 that the aflodavit of the prisoner was 
 receivable in evidence to show that the 
 investigation and commitment h^d taken 
 place on a SuAday. Beg. v. Cavelier, 11 
 M. R. 333. 
 
 17. Theft — Accessory — Receiver of stolen 
 
 Although, under section 61 of The 
 Criminal Code, a person who has been 
 accessory to a theft may be convicted as 
 a principal thief, this does not prevent his 
 conviction as a receiver of the stolen 
 property, if he has subsequently received 
 it from the actual thief. 
 
 The true principle is that it is a receipt 
 which is merely an act done in the com- 
 mission of the theft which cannot be 
 treated as a separate offence; and the 
 statute which makes counselling or pro- 
 curing form a participation in the offence, 
 when committed, does not also make a 
 subsequent receipt form a part of a theft 
 completed before the receipt. 
 
 Reg. v. Craddock, (1850) 2 Den. C. C. 
 31, and Reg. v. Hughes, (1860) Bell C. C. 
 242, followed. Reg. v. Hodge, 12 M. R. 
 319. 
 
 18. Treason — Jurisdiction of North 
 West Court — Information — Evidence in 
 shorthand — Appeal upon fact — Insanity. 
 
 1. In the North West Territories a 
 stipendiary magistrate and a justice of 
 the peace, with the intervention of a jury 
 
 of six, have power to try a prisoner 
 charged with treason. The Dominion 
 Act 43 Vic, c. 25, is not ultra vires. 
 
 2. The information in such case (if any 
 information be necessary) may be taken 
 before the stipendiary magistrate alone. 
 An objection to the information would 
 not be waived by pleading to the charge 
 after objection taken. 
 
 3. At the trial in such case the evidence 
 may be taken by a shorthand reporter. 
 
 4. A finding of "guilty" will not be set 
 aside upon appeal if there be any evidence 
 to support the verdict. 
 
 5. "To the extent of the powers conferred 
 upon it, the Dominion Parliament exer- 
 cises not delegated, but plenary, powers 
 of legislation. 
 
 Insanijty, as a defence in criminal cases, " 
 discusse(i. Reg. v. Riel, 2 M. R. 321, 
 
 Leave to appeal to Privy council 
 refused, 10 A. C. 675. 
 
 19. Warden's authority without cer- 
 tificate — Escape — New conviction. 
 
 A statute provided that "The warden 
 shall receive into the penitentiary every 
 convict legally certified to him as sentenced 
 to imprisonment therein, -and shall there 
 detain him." 
 
 Held, that the absence of a certificate 
 or copy of tjie sentence did not make the 
 detention of a prisoner, properly con- 
 victed and sentenced, illegal. 
 
 Per Bain, J. — Semble, even if no such 
 copy of the sentence had originally been 
 delivered to the warden, (and were any 
 such -necessary), his possession of it at 
 any time previous to his return to a habeas 
 corpus would be siifficient. 
 
 A statute provided that "Every one 
 who escapes from imprisonment shall, on 
 being- retaken, undergo, in the prison he 
 escaped from, the remainder of his term 
 unexpired at the time of his escape, in 
 addition to the punishment which is 
 awarded for such escape." After an 
 escape and before recapture, the peni- 
 tentiary was changed from one building 
 to another. 
 
 Held, 1. (KiLLAM, J., dvbitante), that a 
 conviction for an escape was not necessary 
 to imprisonment for the unserved portion 
 of the sentence. 
 
 2. That imprisonment in the new build- 
 ing was lawful. Reg. v. Peterson, 6 M. R. 
 311. 
 
 See Ballot Box Stuffing. 
 — Bills AND Notes, IV, 5. 
 
315 
 
 CRIMINAL PROCEDURE. 
 
 316 
 
 See Ceetioeari. 
 
 CoNSTITtFTIONAli LaW, 3. 
 
 — ' Conviction, 2, 4, 5. 
 
 — Forgery. 
 
 — Forcible Entry. 
 
 — Money Lenders' Act, 1, 2. 
 — ' Solicitor and Client, I, 3. 
 — • Summary Conviction. 
 
 CROSS APPEAL. 
 
 See Practice, III, 1. 
 
 — Rectification of Deed, 1. 
 
 CRIMINAL PROCEDURE. 
 
 l._ Initialling names of witnesses on 
 indictment — That party assaulted conr 
 sented to fight immatmal. 
 
 1. Notwithstanding the language of the 
 Interpretation Act, R. S. C, c. 1, s. 7 (4), 
 the word "shall" in s. 645 of The Criminal 
 Code, which requires the foreman of the 
 grand jury to put his initials opposite' the 
 names of the Crown witnesses on the back 
 of the bUl of indictment, is not imperative 
 in the sense that the foreman's omission 
 to do so wiU nullify the proceediugs. 
 
 O'Conmll v. The Queen, (1844) 11 C. & 
 F., 155; Queen v. Tovmsend, (1896) 28 
 N. S. 468, foUowed. ' • 
 
 2. The crime* of assault may be com- 
 mitted though the party assaulted may 
 have consented to fight. 
 
 Resina v. Cmiey, (1882) 8 Q. B. D. 534, 
 followed. Reg. -^.Buchanan, 12 M. R. 190. 
 
 2.^uashing conviction— /urisdicJion 
 
 of single judge — Full court — Practice — 
 Notice of motion. 
 
 An application to quash a conviction 
 under section 337 of The Criminal Code 
 must be made to the Full Court and not 
 to a single judge. The Provincial Legis- 
 lature having no authority to make laws 
 respecting criminal procedure, the practice 
 introduced by the Queen's Bench Act, 
 1895, Rule 162,' cannot apply to proceed- 
 ings under The Criminal Code. . Re 
 Boucher, 4 A. R. 191, and Reg. v. McAvhy, 
 14 O. R. 643, followed. 
 
 Held, also, that such an application 
 must be made by summons or rule nm 
 and not by notice of motion, and that in 
 the rule for the certiorari the grounds for 
 moving must be specified: PoTej/ on Con- 
 victions (6th ed.), 457. Reg. v. BeaU, 11 
 M. R. 448. 
 
 See Certiorari, 2. 
 
 — Criminal Law, XI, 3; XII, 1; XIII, 
 
 2, 4: XIV, 3. 
 
 — Jury 'Trial, I, 7. 
 
 — • Liquor License Act, 1. 
 
 CROSS RELIEF. 
 
 See Crown Patent, 5. 
 
 CROWN COUNSEL. 
 
 See Criminal Law, XIV, 3. 
 
 CROWN LANDS. 
 
 1. Dominion lands — Railway tres- 
 passes—Continuing trespass — Public con- 
 venience — Ministers of the Crovm— Dis- 
 allowance. 
 
 1. The Sovereign is always to be deemed 
 in possession of the lands of the Crown. 
 There can be no occupant of the Queen's 
 
 2. Possession, suflScient to enable a 
 plaintiff to maintain an action of trespass, 
 is the possession which is the test of the 
 right to be treated as a plaintiff in posses- 
 sion for the purposes of an injunction suit 
 or motion. 
 
 3. An Act of the Province having been 
 disallowed, the order of the Governor- 
 General in Council was published in the 
 Manitoba Gazette, and following -it was 
 also published a certificate of the Governor- 
 General of the day upon which the Act 
 was received. Held, that such publica- 
 tion was a sufficient signification of the 
 disallowance. 
 
 4. "The PubUc Works Act," 48 Vic.,c. 6, 
 furnishes no authority to take compulsorily 
 Dominion lands for the purpose of any 
 Provincial work, for the statute does not 
 expressly relate to the lands of the Crown; 
 and no authority under the words "the 
 enlargemsnt or improvement of any public 
 work" to take lands for the purpose of 
 changing ten miles of grade into sixty 
 three m^es of railway. 
 
 5. When railway companies or indi- 
 viduals exceed their statutory powers in 
 dealing with other people's property, and 
 an injunction is sought to restrain their 
 actions^ no question of damage or public 
 convemence is raised. 
 
317 
 
 CROWN PATENT. 
 
 318 
 
 6. A continuing trespass amounting to 
 pennanent ajjpropriation of the property 
 of another is, of itself, a sufficiently- 
 serious injury to warrant interference by 
 injunction. 
 
 7. Upon motion for an interlocutory 
 injimction where the right is doubtful, the 
 Court will consider on what side is the 
 balance of convenience; to which party is 
 injury more Ukely to be done by'its inter- 
 ference or refusal to interfere; in what 
 way the parties can best, after the, final 
 determination of their rights, be kept in, 
 or restored to, their position at the time 
 of the motion. 
 
 8. The Court has jurisdiction to grant 
 an injunction, at the instance of the 
 Attorney-General for the Dominion, in 
 respect of trespass upon Crown lands. 
 
 9. Persons claiming exemption from the 
 law must show some reason or authority 
 leaving no doubt upon the subject. -And, 
 where two' persons, who were Provincial 
 Ministers of the Crown, directed a tres- 
 pass upon lands of the Dominion and 
 showed no such exemption, an injimction 
 was issued ' against them. Atty.-Gen. v. 
 Ryan, 5 M. R. 81. ' — 
 
 2. Settlement of Manitoba claims — 
 
 48 & 49 Vic., c. 50 (Z))— 49 Vic., c. 38 
 (Man.) — Construction of statute — Tith to 
 lands — Operation of grant — Transfer in 
 prcesenti— Condition ■precedent — Ascertain- 
 ment and identification of swamp lands — 
 Revenues and emblements — Constitutional 
 law. 
 
 The first section of the Act for the final 
 Settlement of the Claims of the Province 
 of Manitoba on the Dominion (48 & 49 
 Vic, c. 50), enacts that "all Crown lands 
 in Manitoba which may be shown, to the 
 satisfaction of the Domiflion Government, 
 to be swamp lands, shall be transferred to 
 the Province and enure wholly to its 
 benefit and uses." ' 
 
 Held, affirming the judgment appealed 
 from (8 Ex. O. R. 337),"GiRO0AaD and 
 KiLLAMjJJ., dissenting, that the operation 
 of the statutory conveyance in favour of 
 the Province of Manitoba was suspended 
 until such time or times as the lands in 
 question were ascertained and identified 
 as swamp lands and transferred as such 
 by order of the Govemor-General-in- 
 Council, and that, in the meantime, the 
 Government of Canada remained entitled 
 to their administration and the revenues 
 derived therefrom enured wholly to the 
 benefit and use of the Dominion. 
 
 Atty.-Gen. for Manitoba v. Atty.-Gen. for 
 Canada, 34 S. C. R. 287. 
 
 See FrxTTTEEs, 1. 
 
 — ' FBAtlDUIiBNT CONVETANCB, 5. 
 
 — Highway, 1. 
 
 — Possession op Goods. 
 
 — Sale of Land fob Taxes, II. 
 
 CROWN PATENT. 
 
 1, Cancellation. 
 
 S. entered for a homestead and pre- 
 emption, and subsequently by deed con- 
 veyed to A. through whom plaintiffs 
 claimed. Before fhe patent was issued 
 the defendant made application for the 
 same land, alleging that S. had not com- 
 phed with the requirements necessary to 
 entitle him to the land. 
 
 Upon the report of the Land Board the 
 Miaister of the Interior cancelled the 
 entry of S. and aEowed the defendant to 
 be entered for the land. 
 
 The bill prayed that a patent from the 
 Crown granting the lands to plaintiffs 
 might be issued, and that the entry made 
 by the defendant should be set aside. 
 
 Held, tha,t the Court had no jurisdiction 
 to grant the reUef prayed. Crotty v. 
 Vrooman, 1 M. R. 149. 
 
 Z.-Iiaw of descent of land in Mani- 
 toba prior to creation of Province — 
 
 Dominion Lands Act amendment, 60 & 61 
 Vie., c. 29 — Meaning of word "Province" 
 in Dominion legislation — Construction of 
 statutes — Error or oversight in. 
 
 By an amendment to the Dominion 
 Lands Act, 60 & 61 Vic, c. 29, it is ' 
 enacted as foUows: "Where patents for 
 any lands have been or are'hereaf ter issued 
 to a person who died or who hereafter dies 
 before the date of such patent, the patent 
 in such case shall not therefore be void, 
 but the title to the land designated therein 
 and granted or intended to be granted 
 thereby shall become vested in the heirs, 
 assigns, devisees or other legal repre- 
 sentatives of such deceased person accord- 
 ing to the laws of the province in which the 
 land is situate, as if the patent had issued 
 to the deceased person during life." 
 
 The plaintiff claimed title to the lots in 
 c[uestion, now part of the city of St. Bon- 
 iface, Manitoba, under a patent from the 
 Crown issued in 1906 in the name of 
 Charles Larence; his grandfather, who 
 died in February, 1870, before the creation 
 
319 
 
 CROWN PATENT. 
 
 320 
 
 of the Province of Manitoba. The patent 
 recited the above Act and also contained 
 the following recitals: "And whereas the 
 legal representatives (Within the meaning 
 of the above enactment) of the late 
 Charles Laxence, etc., are entitled to a 
 grant of said lands, and apphcation has 
 been made by or on behalf of them or 
 some of them for such patent." 
 
 "And whereas, having in view the pro- 
 visions of the above enactment, we deem 
 it expedient for good and sufficient reasons 
 to issue such grant to or in the name of the 
 said late Charles Larence," and the hdbevr- 
 dum was "To have and to hold the same 
 unto the said "Charles Larence, his heirs 
 and assigns forever." " , 
 
 Held, that, as the lands in question were 
 not in any Province at the date of, the 
 death of Charles Larence, the above 
 statute did not cover the case or avail to 
 validate a patent issued in tbe name of a 
 deceased person^ which without the sup- 
 port 1 of some statute was a nuUity and 
 that, as the plaintiff was unable to estab- 
 lish a title to the lands independently of 
 the! patent, his action must be dismissed. 
 
 Although satisfied that there must have 
 been some error or oversight in drafting 
 a statute, the Court cannot correct the 
 error or supply the omission, for that 
 would be to legislate aijd not to. interpret 
 the Act. 
 
 Commissioners of IncomeTax v. Pemsel, 
 [1891] A.C., per Halsbury, L.C., at p. 543, 
 and In re St. Sepulchre's, (1864) 33 L.J. 
 Ch., per Westbury, L.C., at p. 37, fol- 
 lowed. Larence v. Larence, 21 M. R. 145. 
 
 3. Ejectment — Parliamentary title — 
 . Equitable defence — 38 Tic, c. 12, (Man.) — 
 35 Vic., c. 23 (D). 
 
 L., in 1875, applied for a homestead 
 entry for the S'.W.}^ of sec. 30, township 
 6, range 4 west, pre-empted by F., and 
 paid $10 fee to a clerk at the office, but 
 was subsequently informed by the officers 
 of -the Crown that his application could 
 not be recognized, and was refunded the 
 $10 he had paid. F. subsequtently paid 
 for the land by a military bounty warrant 
 in plursuance of sec. 23 of 35 Vic, c. 28. 
 L. entered upon tjie land and made im- 
 provements. In 1878, after the conflict- 
 ing claims of F. and L. had been consid- 
 ered by the officers of the Crown, a patent 
 for this land was granted by the Crown to 
 F., jvho brought an action of ejectment 
 against L. to recover possession of the 
 said land. F., at the trial, put in, as proof 
 of his title, the Letters Patent, and L. was 
 
 allpwed, against the objection of F.'s 
 counsel;, to set up an equitable defence 
 and to go into evidence for the purpose of 
 attacking the plaintiff's patent as having 
 been issued to him in error, and by im- 
 providence and fraud. The Judge, who 
 tried the case without a jury, rendered a 
 verdict for the defendant. 
 
 Held, on appeal, reversing the judgment 
 of the Court of Queen's Bench (Man.), 
 that L. , not being in possession under the 
 statute, had no parUamentary title to the 
 possession of the land, nor any title what- 
 ever which could prevail against the title 
 of F. under the Letters Patent. 
 
 Per GwTNNE, J. — -That under the prac- 
 tice which jjrevailed in England in 1870, 
 which practice was in force in Manitoba • 
 under 38 Vic, c. 12, at the time of the 
 bringing of this suit, an equitable defence 
 could not be set up in an action of eject- 
 ment. 
 Farmer v. Livingstone, 5 S. C. R. 221. 
 
 4. Setting aside — Estoppel — Covenant 
 for further assurance — Estate subsequently 
 acquired by covenantor. 
 
 Defendant was the patentee from the 
 Crown of Lot A, but before patent he had 
 sold and conveyed to one Clarke, the 
 plaintiff's predecessor in title, 43 feet in 
 frontage of Lot A. " Defendant, at the 
 time of that conveyance., had such an 
 interest in. the 43 feet and the rest of 
 Lot A that the Department of the Interior 
 recognized it by issuing the patent, which 
 they djd without knowledge that defend- 
 ant had conveyed away the 43 feet. 
 
 The defendant's deed to Clarke was 
 made before 14th May, 1875, when the 
 first Statute relating to Short Forms of 
 Indentures was passed. 
 
 It purported tcT be made in pursuance of 
 the Act respecting Short Forms of Con- 
 veyances, and was in the form set out in 
 the first schedule to the Short Forms Act, 
 afterwards R. S. M. 1892, c 141, with the 
 covenants in column one, but it contained 
 no recitals. 
 
 At the hearing it was assumed, though 
 not expressly admitted by the defendant's 
 counsel, that under s. 2 of the Act the 
 effect of the deed was to make the defend- 
 ant's covenants equivalent to those in the 
 second column of the first schedule to the 
 Act, and it was contended by the plaintiff 
 that this worked an estoppel against the 
 defendant. The deed did not come 
 within the Estoppel Act, R. S. M. 1892, 
 c. 52. 
 
321 
 
 CROWN PATENT. 
 
 322 
 
 Held, that the defendant was not 
 
 ' estopped by his mere grant from setting 
 
 up a title subsequently acqtiired, at least 
 
 when it did not appear that he had no 
 
 title at all at the time of his grant. 
 
 Doe d. Oliver v. Powell, 1 A. & E. 531; 
 Right d. Jefferys v. Buchnell, 2 B. & Ad. 
 278, followed. 
 
 In the absence of legislation covenants 
 do not estop: Heath v. Crealock, L. R. 10 
 Ch. 22; General Finance Co. v. Liberator 
 Building Society, 10 Ch. D. 15, and 
 Onward Building • Society v. Smithson, 
 [1893] 1 Ch. 1. 
 
 Specific performance of the defendant's 
 covenants for further assurance could not 
 be decreed without an amendment of the 
 bill, which did not set out the covenants 
 in the forms in the deed, or in those 
 which the statute gives to them. 
 
 When no legal estate passes, the coven- 
 ants do not run with the equitable title so 
 as to enable the assignee to sue at law: 
 Onward Buildin,g Society v. Smithson, 
 supra. 
 
 It appeared (3lear from Browning v. 
 Wright, 2 B. & P. 13, and the wdrding of 
 the covenant number 5 in the schedule, 
 that the covenfintor was not bound under 
 covenant to convey or assure to the cov- 
 enantee or his assigns any estate subse- 
 quently acquired by the covenantor and 
 which he had never previously held. 
 
 The plaintiff had wholly failed to estab- 
 lish the title set up by him, a title in fee 
 simple, whether legal or equitabte, or that 
 there had been such mistake as, under the 
 judgment in Attorney General v. Fonseca, 
 17 S. C. R. 612, would warrant the setting 
 aside of the patent. 
 
 Bill dismissed with costs. 
 
 Fraser v. Sutherland, 15 C. L. T. Occ. 
 Notes 17. 
 
 5. Setting aside in part — Purchaser 
 for value— ^Laches — Estoppel by former suit 
 — Cross-relief— Impromdence without fraud 
 — Presumption. 
 
 1. A patent may be good in part and 
 bad in part, and may be set aside so far as 
 it relates to certain of the property in- 
 cluded in it. 
 
 2. The plea of purchaser from the 
 patentee for value without notice is of no 
 avail as against the Crown. In such case 
 the maxim apphcable is Debeo digniqri, 
 and not Potior est conditio defendentis. 
 
 3; The plea of laches is no defence as 
 against the Crown. The Nullum tempus 
 Act, 9 Geo. 3, c. 16, is not in force in this 
 Province. 
 
 4. In' a former suit in which the same 
 portion of the patent was attacked upon 
 the same ground, the relator in this 
 information was plaintiff, and the 
 Attorney-General was defendant. The 
 bill in that case was dismissed, but such 
 dismissal was held to be no estoppel as 
 against the Attorney-General in this in- 
 formation. The Attorney-General in the 
 former case could not, under General 
 Order, have prayed cross-reUef against his 
 co-defendants. In any case it was not 
 obligatory upon him to do so. 
 
 5. A patent may be set aside upon the 
 ground of improvidence although lio fraud 
 is charged against the patentees. 
 
 6. The presumption against error in a 
 Crown~ patent is not so strong as in an 
 ordinary deed between subject and subject. 
 . 7. In order that a patent may be set 
 aside it is not necessary to shew that 
 some person is entitled to the land. It 
 is sufficient that there existed claims or 
 material facts, which, if present to the 
 mind of the Crown, would have influenced 
 it in de'ahng with the land. 
 
 8. It is not an answer to a charge of 
 improvidence and mistake, that the Crown 
 had^ in its possession documents which ' 
 disclosed the claims or material facts, if 
 these are shown not to have been present 
 to the mind of the official when granting 
 the patent. Attorney-General v. Fonseca, 
 5 M. R. 173. 
 
 Reversed on appeal to the Sujjreme 
 Court. See decision which immediately 
 follows. 
 
 6. Setting aside — Error and improvi- 
 dence — Superior title — Evidence — Res 
 judicata — Estoppel by, as against theCrovm. 
 
 Held, .1. That a judgment avoiding 
 letters patent upon an information at the 
 suit of the Attorney-General could only 
 be justified and^ supported upon the same 
 grounds being estabhshed in evidence as 
 would be necessary if the proceedings 
 were by scire facias. 
 
 2. The term "improvidence," as dis- 
 tipgujshed from error, applies to cases 
 where the grant has been to the prejudice 
 of the commonwealth or the general 
 injury of the pubUc, or where the rights 
 of any individual in the thing granted are 
 injuribusly affecte4 by the letters patent;, 
 and, F.'s title having been recognized by 
 the Govermnent as good and valid under 
 'the Manitoba Act, and the lands granted 
 to him in recognition of that right, the 
 letters patent could not be set aside as 
 
323 
 
 CROWN SUITS. 
 
 324 
 
 having been issued improvidently except 
 upon the ground that some other person 
 had a superior title also valid under the 
 
 Act. 
 
 3. Letters patent cannot be judicially 
 pronounced to have been issued in error 
 or improvidently when lands have been 
 granted upon which a trespasser, having 
 no color of right in law, has entered and 
 was in possession without the- knowledge 
 of the Government officials upon whom 
 rests the duty? of executing and issuing 
 the letters patent, and of investigating 
 and passing judgment upon the claims 
 therefor; or when such trespasser, or any 
 person claiming under him, has not made 
 any apphcation for letters patent; or 
 when such an apphcation has been made 
 and refused without any express deter-, 
 mination of the officials refusing the 
 application, or any record having been 
 made of the apphcation having been 
 made and rejected. 
 
 4. Per Patterson, J., That in the con- 
 struction of the statute effect must be 
 given to the term "improvidence" as mean- 
 
 _ilig something distinct from fraud or error; 
 
 ^letters patent may, therefore, be helcj to 
 have been issued improvidently if issued 
 in ignorance of a substantial claim by 
 persons other than the patentee to the 
 land which, if it had been known, would 
 have been investigated and passed upon 
 before the patent issued; and it is not the 
 duty of the Court to form a definite 
 opinion as to the relative strength of 
 opposing claims. 
 
 S.^Senible, per Gwynnb,. J.,- There is no 
 sound reason why the Government of the 
 Dominion should not be bound by the 
 judgment of a court of justice in a suit to 
 which the Attorney-General, as rep-e- 
 senting the Government, was a party 
 defendant, equally as any individual 
 would be, if the relief prayed by the 
 inforndation is sought in the same interest 
 and upon the same grounds as were 
 adjudicated upon by the judgment in the 
 former suit. Fonseca v. Attorneu-Oeaeral, 
 17 S. C. R. 612. 
 
 See Constitutional Law, 8, 10. 
 — ■ Dominion Lands Act. 
 — • Estoppel, 1. 
 
 — Evidence, 12, 13. 
 
 — Fbaudtjlbnt Conveyance, 5, 
 
 — Highway, 2. 
 
 — ■ Sale of Land foe Taxes, I, 2; II; 
 
 X,7. 
 — ■ Title to Land, 2, 3. 
 
 CROWN SUITS. 
 
 See Statutes, Construction of, 2. 
 
 CURRENT MONEY OF CANADA, 
 
 See Election Petition, IX, 1; X, 1, 2. 
 
 CUSTODY OF INFANT. 
 
 See Infant, 4, 5. 
 
 DAIRY INSPECTION; 
 
 See Municipality, VII, 1, 2, 3. 
 
 DAMAGES. 
 
 1. Amount— Breach of contract 'for 
 erection of buildings, etc. 
 
 The plaintiff and defendant agreed 
 that the plaintiff should procure a site for 
 a mOl and bmld the same so as to be ready 
 for the reception of machinery, which the 
 defendant was to supply. The plaintiff 
 incurred expense in building the mill, in 
 building a, house for the defendant at his 
 request, to be ready; for him on his arrival 
 from Ontario in going to Ontario on 
 account of the defendant's neglect to 
 cariy out the terms of the contract, in 
 paying wages to a man whilst absent in 
 Ontario, and in going to Winnipeg on 
 business of the venture. The defendant 
 refused to carry out the agreement. 
 
 Held, that the true measure of the 
 plaintiff's damages was the loss on the 
 sale of the house built by him for the 
 defendant, and the loss in respect of the 
 null building; but that he was not entitled 
 to recover for the journeys to Ontario and 
 Winnipeg or for the wages. Simpson v. 
 EUis, T. W., 31. 
 
 2. Amount — Breach -of covenant by 
 landlord to build fence. 
 
 The defendant demised land to the 
 plaintiff for one year, at 35200, and cov- 
 enanted to fence the premises. He 
 neglected to build the fence, and the 
 plaintiff refused to pay an instalment of 
 rent, amounting to 8100. The defendant 
 distrained a yoke of oxen and a wagon, 
 
325 
 
 DAMAGES. 
 
 326 
 
 with household furniture, not finding any 
 other distress on the premises. After 
 seizure, appraisement and notice of sale, 
 the bailiff found some barley in a shed oh 
 the premises, but made no change in the 
 seizure or inventory, thinking he had no 
 r^|ht to do so, and believing that the 
 barley was not .there when he made the 
 seizure. The plaintiff never objected to 
 the seizure of the oxen, and once asked 
 for a postponement of the sale. The 
 oxen and wagon were sold, the plaintiff 
 bujring them for $160. The rent and 
 expenses amounted to S135.30. _ Th? 
 surplus was retained by the plaintiff. 
 The day after the sale he issued a writ. 
 The jury found a verdict for the plaintiff 
 on the counts for breach of covenant to 
 fence, distraining beasts of the plow and 
 excessive distress, and assessed the dam- 
 age^ at $180. 
 
 Held, that the damages were excessive, 
 and that there shoujd be a new trial unless 
 the plaintiff consented to reduce his 
 verdict. 
 
 The measure of damages on the breach 
 of covenant was what it would have cost 
 the plaintiff to have leased another piece 
 of land fenced; for distraining beasts of 
 the plow, what^ would cost the plaintiff 
 to have hired oxen for the several days he 
 was deprived of the use of them. Per 
 Wood, C.J. Clarke v. Murray, T. W., 127. 
 
 3. Excessive damages — Jury fee. 
 
 " In an action for assault, false imprison- 
 ment, slander and libel, the assault and 
 imprisonment consisted in- the defendant 
 putting his hand upon the plaintiff's 
 shoulder, pushing her into the office and 
 locking the door for a short time. No 
 evidence was given of special damage 
 under the slander and libel counts, and a 
 verdict upon, them alone could not there- 
 fore be supported. The jury gave a 
 general verdict of $300. 
 
 HeM, 1. That, although the damages 
 were excessive, the Court would not inter- 
 fere with the verdict upon that account. 
 2. Although a jury fee would have been 
 payable but for the existence of the 
 slander and libel counts, and although no 
 evidence of the special damage was given 
 vmder these counts, yet the general ver- 
 dict would not for non-payment of the 
 fee be set aside. McMonagle v. Orton, 
 5 M. R. 193. 
 
 4. Expropriation — Damages in lieu of 
 specific performance — Presumption against 
 holder ofunproduced document — Dedication. 
 
 Defendants took proceedings to ex- 
 propriate lands of the plaintiff. The 
 commissioners awarded, to the plaintiff 
 821,455, but the award was not confirmed 
 by a judge, as required by the defendant's 
 charter. 
 
 Hdd, (overruling DtTBtrc, J.) that the 
 award coiild not be enforced. 
 
 After tbe award the defendants agreed 
 to give to the plaintiff, in exchange for the 
 same land, two other pieces of land and 
 $12,000. The plaintiff thereupon removed 
 certain buildings, ^he defendants used the 
 land for a street, and the defendants paid 
 the $12,000, but refused to convey the 
 two parcels of land, alleging that they 
 formed portions of streets. 
 
 Hdd, (affirming DuBtr,c, J.), 1. That a 
 bin might be filed to recover damages for 
 the breach of the contract, the deed from 
 the plaintiff to the defendant having 
 erroneously acknowledged receipt of the 
 purchase money. 
 
 2. That the damages might fairly be 
 placed at the difference between the 
 $21,455 and the $12,000, without proof 
 of the locality of the two parcels of land 
 or their value, the defendants having had 
 in their custody the documents by which 
 the locality could have been proved, and 
 not having produced them, but alleged 
 their loss. Wright v. Winnipeg, 4 M. R. 
 46. 
 
 See Animals Running at LABbE, 2, 3. 
 
 — ■ Assignment fob Benefit of Cred- 
 itors, 5. 
 
 — Banks and Banking, 6.. . 
 
 — Breach op Warranty. 
 
 — Building CoisrrBACT, 3, 4. 
 
 — Contract II, 2; VII, 3. 
 
 — Garnishment, IV, I. 
 -— Infant, 1. 
 
 — Injunction, I.'l; II, 1. 
 
 — Joint Tort Feasors. 
 
 — Landlord and Tenant, I, 1, 2.. 
 
 — Master and Servant, IV, 2. 
 
 — Misrepresentation, I; II; III, 1, 4. 
 
 — Municipality, IV, 1. 
 
 — Negligence VI, 6; VII, 4. 
 
 — Nuisance, 2. 
 
 ^- Pleading, XI, 1, 8. 
 
 — Railways VIH, 1, 5; XI, 4, 5.- 
 
 — Ratification. 
 
 — Sale of Goods, II. 3; III, 1; IV, 1, 4; 
 
 V, 1. 
 
 — Sale of Land for Taxes, I, 2. 
 — ■ Set Off, 2. 
 
 — Slander op Real Estate. 
 
 — Specific Performance. 
 — • Trade Unions. 
 
327 
 
 DAMAGES FOR DELAY. 
 
 328 
 
 See Trespass and Tbover, 1. 
 
 — Vendob and Purchaser, VI, 2, 15: 
 
 VII, 2, 11, 12. 
 
 — Warranty, 2, 3. 
 
 DECLARATION OF RIGHT. 
 
 See Costs, III, 2. i 
 
 — Frapdtjlent Conveyance, 10. 
 
 — Real Property Limitation Act, 8. 
 
 DAMAGES FOR DELAY. 
 
 See Pleading, VIII, 2. 
 
 DAMAGES FOR PERSONAL INJURY. 
 
 See Negligence, VII, 4. 
 
 DANGEROUS THINGS, HANDLING 
 OF. 
 
 See Negligence II, 2. 
 
 DEATH BY ACCIDENT. 
 
 See Workmen's Compensation for In- 
 juries Act, 3, 4. , 
 
 DEATH HAPPENING OUT OF THE 
 JURISDICTION. 
 
 See Lord Campbell's Act, 1, 2. 
 
 DECLARATORY JUDGMENT. 
 
 See Pleading, X, 9. 
 
 DEDICATION. 
 
 1. Absence of user by public. 
 
 Filitig in the registry office a plan of 
 property showing a street or lane does 
 not, in the absence of user by the public, 
 amount to a dedication. Wright v. Wirir 
 ni-peff, 4 M. R. 46. 
 
 2. Occupancy by pers i fil ng plan. 
 
 Dedication of a stree^ iot having been 
 acted upon — ^the proptrty not having 
 been used as a street, but on the contrary 
 the plaintiff's occupancy of it having been 
 sanctioned by the City — did not affect 
 the plaintiff's title. Wright v. Winnirpegi 
 3 M. R. 349. 
 
 See Damages, 4. 
 — Estoppel, 1. 
 
 DEBENTURES. 
 
 See Municipality, VIII, 8. 
 
 DEBTOR AND CREDITOR. 
 
 See Garnishment, VI, 10. 
 
 DEBTORS' ARREST ACT. 
 
 ! Examination of Judgment Debtor, 8. 
 
 DECLARATION OF OFFICE. 
 
 See Public Schools Act, 1. 
 
 DEED OF LAND. 
 
 1. Reservation of right to'^compen- 
 sation for depreciation in value caused 
 by closing of street. 
 
 The owner of land, which it is expected 
 will be depreciated in value by the con- 
 templated closing of a street, may, in 
 conveying it to a purchaser, reserve the 
 right to collect and receive the compen- 
 sation that may be thereafter awarded in 
 respect of such depreciation, and after- 
 wards his claim for such compensation 
 cannot be answered by showing that he 
 has sold and conveyed the land. Re 
 Codville, 16 M. R. 426. 
 
 2. Priority as between unregistered 
 equitable charge and subsequent 
 registered conveyance — Effect of grant 
 of land by registered owner according to 
 his estate and interest therein and as fuUy 
 
329 
 
 DEED OP SETTLEMENT. 
 
 330 
 
 and effectually as he lawfully can or may" 
 to an assignee in trust for creditors — ■ 
 Assignments Act, B.S.M. 1902, c. 8., ss. 
 6, 7—Lim Notes Act, R.S.M. 1902, c. 99, 
 ss. 4, 7— Registry Act, B.S.M. 1902,' c. 
 150, s. 72. 
 
 The defendant Burnett, having ex- 
 ecuted an agreement under seal creating 
 an equitable lien or charge on his farm 
 Ijind in favor of the plaintiffs for the 
 price of certain machinery which agree- 
 ment could not, uHder section 4 of The 
 Lien Notes Act, R.g.M. 1902, c. 99, be 
 registered, subsequently executed a deed 
 of assignment to the defendant Haverson 
 as trustee for ■ creditors. As regards 
 Burnett's lands, the wording'of the assign- 
 ment was as follows: "The said debtor, 
 according to his estate and interest 
 therein and as fully and effectually as he 
 lawfijly can or niay, ._ . . by these 
 presents doth hereby grant . . . unto 
 the said trustee . . all the real estate, 
 lands, tenements, and hereditaments of 
 the said debtor . , . of or to which he 
 may have any estate, right, title or 
 interest of any kind or description with 
 the appurtenances." 
 
 This assignment was made and duly 
 registered shortly after the comjnencement 
 of this action. 
 
 Held, that such deed purported to 
 deal only with such estate or interest in 
 the land as the assignor then had and did 
 not operate or assume to operate so as to 
 convey the land free from the equitable 
 charge or lien previously given to the 
 plaintiffs, 
 
 Sections 6- and 7, of The Assignments 
 Act, R.S.M. 1902, c. 8, do not help the 
 assignee,. as the giSSignment was not in the 
 words, or to the like effect of the words 
 given in section 6, and- section 7 provides 
 only that every assignment .... shall 
 vest the estate "thereby assigned" in the- 
 assignee, and:^does not assume to give the 
 deed any larger effect in the way of passing 
 property than on its face it purports to 
 have. , , 
 
 The only interest, therefore, that passed 
 to the assignee being what was left after 
 the jplaintiffs' equitable charge should be 
 satisfied, neither section 72 of The Reg- 
 istry Act, R.S.M. 1902, c. 150, nor section 
 7 of The Lien Notes Act can have any 
 application, as they only apply to invah- 
 date an unregistered instrument as against 
 a registered instrument that affects the 
 same estate or interest in lands. Canadian 
 Port Huron Co. v. BumM, 17 M. R. 55., 
 
 DEED OF SETTLEMENT, 
 
 Improvidence— flesaKwij trust upon 
 conveyance by husband to wife — Trusts of 
 land under Real Property Act — Parties to 
 action — Vagueness and uncertainty in 
 trusts as expressed — Power of revocation — 
 Independent advice to settlor — rAcquiescence, 
 laches and delay in taking steps to set aside 
 trust deed — Double possibility — Thellusson 
 Act — Rule against perpetuities. 
 
 The personal representatives of a 
 decepsed settlor are necessary parties to 
 an action by his widow to set aside a deed 
 of settlement executed by the settlor and 
 his wife conveying property to tmstees. 
 
 Held, also, by Mathers, C.J.K.B. 
 
 1. Whele a man executes a voluntary 
 conveyance of lands to his wife, there is 
 no presumption of a resulting trust in his 
 favor, but it is open to the grantor or his 
 representatives to show that under the •• 
 circumstances there was such resulting 
 trust and in thit case the lands will be 
 deemed in equity to be his, whether they ^ 
 are under the Real Property Act or not. 
 
 Childers v. ChiUers, (1857) 3 Jur. N.S. 
 1277; Marshall v. Cndwell, (1875) L.R. 
 20 Eq. 328, and Re Massey & Gibson, 
 (1890) 7 M.R. 172, followed. 
 
 2. A deed of settlement, although it 
 transferred all the property of the settlors 
 to the trustees without power of revoca- 
 tion in trust to pay the net income or part 
 thereof to the settlors or the survivor of 
 them until the death of the survivor, and 
 afterwards to distribute the corpus or the 
 income thereof between the children or 
 some of them in the absolute discretion of 
 the trustees, was held, ill the peculiar 
 circumstances set forth in the judgment, 
 not to be improvident. 
 
 3. If the trusts declared in a deed of 
 settlement are too vague and uncertain to 
 be executed, a trust in favor of the next 
 of kin would result by operation of law, 
 and the trustees would not take for their 
 own hene&t: Lewin, p. 164. 
 
 4. The settlor may wist to protect him. 
 self from his own improvidence or against 
 importunities of relatives and in such a 
 case the absence of a power of revocation 
 in the deed is not a ground for setting it 
 aside. 
 
 TokerY. Toker, (1863) 3 De G.J. & S. 487, 
 and Phillips v. MvUings, (1871) L.R. 7 
 Ch. 244, foUowed. 
 
 Coutts V. Acworth, (1869) L.R. 8 Eq. 
 558, distinguished. v 
 
331 
 
 DEFAMATION. 
 
 332 
 
 5. As the trustees were not beneficiaries 
 under the deed, the absence of independent 
 advice in the execution of jt was not 
 important. 
 
 Huguenin v. Baseley, (1807) 14 Ves. 
 273, distinguished. 
 
 6. The plaintiff, one of the-settlors, after 
 the death of her husband, had, in Ihe cir- 
 cumstances set forth in the judgment, 
 estopped herself from complaining of the 
 deed by acquiesence, laches and delay. 
 
 Turner v. Collins, (1871) L.R. 7 Ch. 
 329; Allcard v. Skinner, (1887) 36 Ch. D. 
 145, and Jarratt v. Aldom, (1870) L.R. 9 
 Eq. Cas. 463, fojlowed. 
 
 Sharp V. Leach, (18'62) 31 Beav. 491, 
 distinguished. 
 
 7. As the deed in question required that 
 the estate should be converted into money 
 at the death of the widow, in contempla- 
 tion of equity the estate conveyed con- 
 sisted of personal estate: Attorney-General 
 
 • V. Dodd, (1894) 2 Q.B. 150; and. since the 
 rule against a "double possibility" or 
 "a possibiUty upon a possibility" has, 
 according to In re Bowles, Amedroz v, 
 Bowles, [1902] 2 Ch. 650, no appUcation 
 to personal estate, therefore the deed was 
 not objectionable as offending against such 
 rule, although it might have been in the 
 absence of a direction for such conversion. 
 
 8. Under the deed there might be an 
 accumulation of income beyond the period 
 
 -permitted by the Thellusson Act, if the 
 trustees should exercise the power given 
 them of withholding the ^ares of some of 
 the beneficiaries and giving them to others, 
 and an accumulation beyond the per- 
 mitted period would be void under the 
 Act, but the gift itself would not be void 
 unless it would also infringe the rule 
 against perpetuities. 
 
 Godefroi on Trusts, 912; Jagger v. Jogger, 
 (1883) 25 Ch. D. 729, aaiTench v. Cheese, 
 (1855) 24 L.J. Ch. 55, followed. _ 
 
 9. The possibility of a power in a deed 
 of settlement being at some future time 
 exercised so as to infringe the rule against 
 perpetuities does not make the power 
 itself void, whereat is such that it majr be 
 exercised in a maimer entirely unobjec- 
 tionable. , 
 
 Slark V. Dakyns, (1874) L.R. 10 Ch. 35; 
 Picken v. Matthew, (1878) 10 Ch. D. 264,- 
 and Be Bowles, [19051 1 Ch. 371, followed. 
 
 Leake v. BoUnson, (1817) 2 Mer. 389, 
 distinguished. 
 
 10. As the widow and children of a 
 deceased son would be entitled under the 
 deed attacked to a share of the estate and 
 so were interested in maintaining the deed^ 
 
 they were necessary parties to the action 
 attacking it, which therefore failed for lack, 
 of parties, notwithstanding that the ex- 
 ecutors of the wiU of said son had been 
 mad^ parties. 
 
 These executors took nothing under the 
 deed and did not represent the infant 
 children of their testator and therefore 
 had been made parties unnecessarily. 
 Fonseca v. Jones, 21 M. R. 168. 
 
 DEFAMATION. 
 
 See Costs, XUl, 2. 
 — Libel, 5. 
 
 DEFAULT OP PURCHASER. 
 
 See Vendor and Purchaser, II, 3. 
 
 DEFECT IN SYSTEM. 
 
 s Negligence, II, 1; VII, 8. 
 
 DEFECTIVE APPARATUS. 
 
 iSee Negligence V, 4, 5. 
 
 DEFECTIVE MATERIAL. 
 
 See Practice XXVIII, 6. 
 
 DEFECTIVE WORKMANSHIP. 
 
 See Pleading, VIII, 2. 
 
 DEFENCE ON THE MERITS. 
 
 See Security for Costs, III. 
 
 DEFICIENCY IN LAND. 
 
 , See Vendor and Purchaser, VI, 13. 
 
333 
 
 DELAY. 
 
 334 
 
 DELAY. 
 
 See Amendment, 2. 
 
 — Infant, 11. 
 
 — Interpleader, VIII, 1. 
 
 — Practice, XVII, 3; XX, B, 1, 2. 
 
 — Security fob Costs, X, 1. 
 
 — Setting Aside Jxtogment. 
 
 — Solicitor, 6. 
 
 — Trade Name. 
 
 — Vendor and Purchaser, VI, 15. 
 
 DELEGATION OF AUTHORITY. 
 
 See MtJNiciPALiTY, I, 5; VII, 1, 2, 3. 
 
 DELEGATION OF DUTY. 
 
 See Arbitration and Award, 11. 
 
 DELIVERY. 
 
 See Gift, 1. 
 
 DELIVERY IN BLANK. 
 
 'ee Bills and Notes, VI, 1. 
 
 DELIVERY OF DEED. 
 
 See Assignment FOR Benefit of Cred- 
 itors, 4. 
 
 DELIVERY OF GOODS. 
 
 I Principal and Agent, I, 1. 
 Railways, III, 1, 4, 5, 6. 
 Sale of Goods, I, 1, 2; IV, 2; VI, 5. 
 
 DELIVERY OF POSSESSION. 
 
 See Bills of Sale, 1, 2. 
 
 DEMAND. 
 
 See Taxes. 
 
 DEMAND AND REFUSAL. 
 
 See Money Had and Received. 
 
 DEMAND OF POSSESSION. 
 
 See Vendor and Purchaser, IV, 8. 
 
 DEMURRER. 
 
 1. Argument of, before trial — Kmyu 
 Bench Act, Rule 453. 
 
 Under Rule 453 of the King's Bench 
 Act, R.S.M. 1902, c. 40, an order to have 
 a demurrer disposed of or argued before 
 the trial of the case should not be made 
 unless the points of law involved are such 
 as affect the whole case and the dispo- 
 sition of which would either determme 
 the whole case or declare some important 
 principle which would influence the con- 
 sideration of the matters remaining. 
 
 London, Chatham & Dover Ry. Co. v. 
 South Eastern Ry. Co., (1885) 53 L.T. 1095 
 Parr v. London Assurance Co., (1891) 
 8 T.L.R. 88, and Makarsky v. C.P.R., 
 (1904) 16 M.R. 53, followed. 
 
 Under the rule the question is largely- 
 one of cojivenience, and the Court will not 
 hear and determine piecemeal the various 
 matters involved in a complicated suit. 
 Gardiner v. Bickley, 15 M.R. 354. 
 
 2. Ore tonus. 
 
 A demurrer ore tenus wiU not be allowed 
 unless there is a demurrer on the record. 
 Wright v. Winnipeg, 3 M.R. 349. 
 
 3. Plea bad as to part — Demurrer to 
 part of plea — Discontinuance. 
 
 If a plea is bad in part, it is bad as to 
 the whole, and a demurrer should be to the 
 whole plea, otherwise it will work a dis- 
 continuance. Sparham v. Carley, 8 M.R. 
 448. 
 
 See Company, IV, 12. 
 
 — COSTB, XIII, 3. 
 
 — "Criminal Law, XIV, 4. 
 
 — Mortgagor and Mobtoaqeb, III, 3. 
 
 — Practice, XXIII, 1, 3; XXVIII, 7. 
 
 — Privity of Contract. 
 
 — Public Schools Act, 2. 
 
 — Railways, II, 2. 
 
 — Sale of Land for Taxes, VIII, 1. 
 
 — Time, 1. - 
 
 — Workmen's Compensation for In- 
 
 juries Act, 4. 
 
335 
 
 DEPARTURE. 
 
 336 
 
 DEPARTURE. 
 
 Pleading, I, 1; XI, 8. 
 
 DEPOSIT. 
 
 See Pledge. 
 
 DEPOSIT IN LIEU OF RECOGNIZ- 
 ANCE. 
 
 See Summary Conviction, 1. 
 
 DEPOSIT RECEIPT. 
 
 See Negotiable Instrttment. 
 
 DEPOSITIONIOF DECEASED 
 WITNESS. 
 
 See Evidence, 6. 
 
 DEPOSITIONS— ADMISSIBILITY OF. 
 
 See Criminal Law, VI, 3. 
 
 r DEPOSITIONS— MANNER OF 
 -^ TAKING. 
 
 See^viDENCE on Commission, 1,-2. 
 
 — Examination op Judgment Debtor, 5. 
 
 — Extradition, 3, 4, 5. 
 
 — Master's Office, Pbtactice in, 2. 
 
 DESCENT OF LAND. 
 
 Law of primogeniture in force in 
 Manitoba up to 3rd May, 1871. 
 
 -The Legislature of Manitoba passed the 
 first Intestacy Act in May, 1871, and 
 before that time the law of descent appli- 
 cable in England to estates in lands and 
 tenements should be held to have been in 
 force in Manitoba, and therefore, where a 
 person died intestate in April, 1871, being 
 the owner in fee simple of a parcel of land, 
 the Court. 
 
 Held, that the land descended to the 
 eldest son to the exclusion of the other 
 children. Be Tail, 9 M.R. 617. 
 
 iSee Crown Patent, 2. 
 
 DESCRIPTION. 
 
 See Fraudulent Preference, VI. 
 
 DESCRIPTION OF GOODS. 
 
 See Bills op Sale, 1. 
 
 — Chattel Mortgage, V, 1. 
 
 — Warranty, 4. 
 
 DESCRIPTION OF LAND. 
 
 1. Ambiguity^ — Charge on homestead 
 hefx)re patent — Dominion Lands Act,s. 42 — 
 60 & 61 Vic. {D.), c. 29, s. 5. 
 
 The written contract signed by defend- 
 ant for the purchase of machinery from 
 the plaintiff provided for a lien or charge 
 upon the"N.E. J^ Section 2, Township 4, 
 Range 14," without stating whether the 
 range meant was 14 west or east of the 
 principal meridian, both of which ranges 
 are in this Province; but the evidence 
 showed' that it was range 14 west that was 
 intended. 
 
 Held, (1) That the expression N.E. }4 
 sufficiently designated the north-east 
 quarter, as such contractions are in daily 
 use. 
 
 (2) That in this case the description 
 was sufficient to warrant the order for a 
 charge on the N.E. ^ 2-4-14 W.; for, (o) 
 if judicial notice should be taken of the 
 surveys that had been already made in 
 Manitoba and of those Which had not 
 been made, then, as township 4 in range 
 14 east had not been surveyed into sec- 
 tions, township 4 in range 14 west must 
 have been the one intended by the con- 
 tract, and there was no ambiguity requir- 
 ing evidence to explain; and, (6) if judicial 
 notice of such surveys could not be 
 taken, then the ambiguity, if any, was a 
 lat^t one and oral testimony was admis- 
 sible to ascertain what land was meant. 
 
 It was suggested in argument, that de- 
 fendant was merely a homesteader under 
 The_ Dominion Lands Act, and had not 
 received his patent, and thsft, under sec- 
 
337'^ 
 
 DESTRUCTION OF EVIDENCE. 
 
 338 
 
 tion 42 of that Act, he could not validly 
 create a charge on the land. 
 
 Held, that the defendant could not 
 raise such an objection in this aotionj and 
 that the plaintiff was entitled to an order 
 for the charge on the land and the chance 
 of realizing on it, though he might after- 
 wards be defeated by the action of the 
 Dominion Government. Abell v. Mc- 
 Laren, 13 M.R. 463. 
 
 Not followed as to last holding. 
 Cumming v. Cumming, 15 M.R. 640. 
 
 Followed as to &st holding. 
 y. Stewart, 21 M.R. 341. 
 
 2. Ambiguity — Falsa demonstratio — 
 General, followed by specific description. 
 
 Plaintiff and defendant were entitled, 
 under the deeds of' conveyance to their 
 predecessors in title respectively, to the 
 western and eastern parts respectively of 
 a fractional quarter section of land of an 
 irregular shape bordering on a lake at the 
 east side and containing about 132 acres. 
 The land was crossed by a highway called 
 the Gimli road running^ in a < somewhat 
 oblique direction' from north to south. 
 The conveyance on which the plaintiff 
 rehed described his land as the west half 
 of the quarter section or that part lying 
 on the west side of the GimU roaid, and the 
 defendant's title was for the east half, 
 &c., or that part lying on the east side of 
 the Gimli road. Possession had con- 
 tinued in accordance with the belief on 
 both sides, that the Gimli road divided the 
 fractional quarter section into nearly 
 equal portions. 
 
 On discovering that there was in fact a 
 larger area on the east side of the road 
 than on the west, the plaintiff brought 
 this action for possession of such excess, 
 being part of the land on the eastVide in 
 the possession of the defendant. 
 
 Held, 1. As applied to the land in ques- 
 tion, the words "east half" were not suf- 
 ficieijt to describe with clearness the land 
 intended to be conveyed and, conse- 
 quently, the words which follow could not 
 be rejected as falsa demonstratio. 
 
 GUlen V. Haynes, (1873) 33 U. C. R. 516; 
 Iter V. Nolan, (1861) 21 U. C. R. 309, and 
 Carivlrightv. Detlor, (1860) 19 U. C. R. 210, 
 distinguished. 
 
 2. This was a proper case for the appli- 
 cation of the rule that, when there is a 
 general description followed by a specific 
 one, the specific and not the general 
 description must be taken to govern, and 
 that the expression "east half" in this case 
 
 was, a general description that must yield 
 to the specific description that foUowB. 
 
 Murray v. SmUh, (1848) 5 U. C. R. 225, 
 and Smith v. Galloway, (4.833) 5 B. & Ad., 
 43 followed. : 
 
 3. The ambiguity in the description in 
 question was a latent one, only becoming 
 patent when evidence was given of the 
 irregular shape of the land, and therefore 
 extrinsic evidence was admissible to show 
 the intention of the parties. 
 
 Semble, the defendant might also suc- 
 ceed on the doctrine of election as set 
 forth in Elphinstone on Deeds, 105, Vin, 
 Ab., Grant, H. 5, and Shep. Touch., 106, 
 251, on the ground that his deed gave 
 him the option of taking the east half or the 
 land on the east side of -the road and he 
 had elected to take thfe latter. Oleson v. 
 Jonasson, 16 M.R. 94. 
 
 See CoNTKACT, XV, 1. ^ 
 
 — Real Propeett Act, I, 4,5, 7. 
 
 — Rectification of deed, 2. 
 
 — Sale of Land for Taxes, VI, 3. 
 
 — Statute of Frauds, 3. 
 
 DESTRUCTION OF EVIDENCE. 
 
 See Trade Unions, 1. 
 
 DETENTION OF PRISONER. 
 
 See Criminal Law, XVII, 2. 
 
 DETERMINATION OF ACTION. 
 
 See Replevin, 2, 3. 
 
 DEVOLUTION OF ESTATES. 
 
 1. Death of administrator — Unad- 
 ministered estate of intestate — Appointment 
 of administrator of estate of deceased 
 administrator — Costs. 
 
 L., the owner of the land in question, 
 died intestate. His widow was appointed 
 administratrix of his estate. She . died 
 without dealing in any way with the 
 land, and the plaintiffs were appointed 
 administrators of her estate. 
 
 Held, that the plaintiffs had no title 
 to the land, and that a grant of letters of 
 
339 
 
 DIRECTORS. 
 
 340 
 
 administration of the unadministered 
 estate of L. would be necessary, followed 
 by a conveyance from the new adminis- 
 trator to the plaintiffs, before they could 
 get title. 
 
 The defendant was only allowed the 
 costs of a demurrer, as the point of law 
 was apparent on the pleadings and he 
 should have raised it by his pleadings 
 instead of going to trial in the ordinary 
 way. National Trust Co. v. Proulr, 20 
 M. R. 137. 
 
 2. Registered jVLdgxaent— Interest of 
 
 ,_ heir in lands of intestate, whether realty or 
 persorudty — Parties to action. 
 
 Z., the owner of the lands in question, 
 having died intestate, his widow,- A, took 
 out letters of administration to his estate. 
 B.,the only child of Z. and A., subsequently 
 married the defendant and than- died 
 childless and intestate. The plaintiff, 
 having recovered a judgment in the King's 
 Bench against the defendant, registered 
 in the proper Land Titles office a certifi- 
 cate of the judgment arid then brought 
 this action for a sale of the defendant's 
 interest in the lands^to realize his judg- 
 ment. 
 
 A. had not disposed of the land in any 
 way under her letters of administration, 
 nor had letters of administration of the 
 estate of B. been taken out. 
 
 Held, that the defendant had no 
 interest in the lands in ques,tion which was 
 bound by, or could be sold under, the 
 registered judgment. 
 
 Held, also, that an administrator of 
 the estate of the defendant's- wife was a 
 necessary party to any proceedings affect- 
 ing her estate or the defendant's interest 
 in it. 
 
 Re Shephard, (1889) 43 Ch. D. 131, 
 followed. 
 
 Semble, even it the estate of the defend- 
 ant's wife had been represented in the 
 action, it would have to be held that the 
 defendant, while the land remained vested 
 in the administrator, had no interest in it 
 which would be bound by the judgment; 
 Thomas v. Cross^ 2 Dr. & Sm. 423. 
 
 Section 3 of The Judgments Act, R.S.M. 
 1902, c. 91, with the interpretation of the 
 word "land" given in s-s (j.) of s. 2, refers 
 to a present existing interest in land, and 
 does not cover an interest which may 
 come to a beneficiary as real estate or 
 may come to him as money according to 
 the actions of the administrator and the 
 unknown exigencies of the administration. 
 McDougall v. Gagnm, 16 M. R. 232. ( 
 
 DIRECTORS. 
 
 See Company, II, 2; IV, 7, 8. 
 
 DIRECTORS, LIABILITY OF. 
 
 See WiNDiNG-TTP, I, 5; IV, 3. 
 
 DIRECTORY OR IMPERATIVE 
 REQUIREMENTS. 
 
 See Criminal Law, -XIV, 1. 
 
 — Cbiminal Pbocedtire, I. 
 
 — Evidence on Commission, 7. 
 
 — Local Option Bt-law, V, 3. 
 
 — Municipal Elections, 4. 
 
 — Municipality, VII, 4. 
 
 — Prohibition, III, 1. 
 
 — Real Propeety Act, I, 1, 6. 
 
 — Statutes. Construction of, 1 
 
 — Workmen's Compensation for In- 
 
 juries Act, 4. 
 
 DISALLOWANCE OF PROVINCIAL 
 ACTS. 
 
 See Chown Lands, 1. 
 ; — Injunction, I, 10. 
 
 DISCHARGE OF RETIRING 
 PARTNER. 
 
 See Partnership, 4. 
 
 DISCHARGE FROM IMPRISON- 
 MENT. 
 
 See Costs, XIII, 7. 
 
 DISCLAIMER. 
 
 See Costs, II, 1, 2.. 
 
 — Municipal ELEfcTioNS, 1. 
 
 DISCLOSURE OF RELEVANT FACT 
 
 See Attachment of Goods, 4. 
 — Injunction, I, 1; III, 2. 
 
341 
 
 DISCONTINUANCE. 
 
 342 
 
 DISCONTINUANCE. 
 
 See Costs, XIII, 8. 
 
 — Demurrer, 3. 
 
 — Practice, X, 1. 
 
 DISCOVERY. 
 
 See Examination for Discovert. 
 
 — Production of Documents, 7, 13, 14. 
 
 DISCRETIONARY ORDER. 
 
 See Costs, XIII, 2. 
 — JurtTrial, 1, 1. 
 
 DISCRIMINATION. 
 
 See Municipality, I, 6. 
 
 — Real Property Act, III. 3. 
 
 DISCOVERY OF NEW EVIDENCE. 
 
 See Appeal to Supreme Court, 5. 
 — Evidence, 10. 
 
 DISMISSAL OF ACTION. 
 
 See Municipality, VI, 2. 
 
 — Practice, XXVIII, 24,,25. 
 
 — Production op Documents, 
 
 — Security for Costs, VI, 2. 
 
 DISCRETION. 
 
 I Judicial District Boards, 2. 
 
 DISCRETION OF COURT. 
 
 See Assignment for Benefit or Cred- 
 itors, 5. 
 
 — Fire Insurance, 3. 
 — . Practice, XX, B. 5. 
 
 — Prohibition, I, 4, 6, 7; III, 1, 3. 
 
 — Real Property Act, II, 2. 
 
 — Solicitor and Client, III, 5. 
 
 — Stating Proceedings, II, 2. 
 
 — Summary Judgment, I, 2. 
 
 DISCRETION OF JUDGE. 
 
 J Costs, XIII, 2. 
 County Court, II, 2, 5. 
 Examination of Judgment Debtor, 
 
 15. 
 Injunction, I, 1. 
 Interplbaijbh, II, 7. 
 Jury TRiiL, I, 4. 
 Pleading, I, 2; VIII, 2. 
 Practice, XX, B. 7, XX, C. 
 
 DISCRETION OF MASTER. 
 
 See Solicitor and Client, II, 1. 
 
 DISOBEDIENCE OF ORDER. 
 
 See Solicitor, 1, 8. 
 
 DISPUTE NOTE. 
 
 See Pleading, I, 2. 
 
 DISQUALIFICATION. 
 
 :e Election Petition, IV, 3. 
 ■ Municipal Elections, 2, 6. 
 
 DISTRESS AND IMPRISONMENT. 
 
 See Criminal Law, XII, 1. 
 
 DISTRESS FOR INTEREST. 
 
 See Distress for Rent, 3'. 
 
 — Mortgagor and Mortgagee, VI, 4. 
 
 DISTRESS FOR RENT. ' 
 
 1 Illegal distress — Damages for — Leave 
 and license— Contract not under seal and 
 without consideration — Nudum pactum. 
 
 The defendant attempted to justify a 
 seizure for rent under a warrant of distress , 
 
343 
 
 DISTRESS FOR TAXES. 
 
 344 
 
 by producing a document signed by the 
 plaintiff, which purported to give him the 
 right tq seize the plaintiff's goods for rent 
 before the rent fell due according to the 
 lease. The learned Judge found as a fact 
 that this document .was not sealed at the 
 time of its execution, and no consideration 
 was shown for the plaintiff executing it. 
 Held, that it was a nudum pactum and 
 that the defendant could not justify under 
 it. Brayfield v. Cardiff, 9 M. R. 302. 
 
 2. Illegal distress— Estoppel in pais-^- 
 Fraudulent remqval of goods to avoid distress 
 — Landlord and tenant. 
 
 Some of the plaintiff's goods haying 
 been seized and sold alon^ with those of 
 his wife under a distress warrant issued by 
 the defendant H. to his co-defendant, for 
 the purpose of levying an amount due by 
 the wife for rent of certain premises, from 
 which, before the seizure, all the goods 
 had been removed with the fraudulent 
 intention of evading payment of the rent, 
 the plaintiff brought this action for 
 da,mages. When the bailiff made the 
 seizure the plaintiff forbade him to do so, 
 but he did not at any time inform H. or 
 the bailiff that he claimed some of the 
 goods to be his; and after the seizure his 
 attorney wrote several letters to H., de- 
 manding that the goods be given up, and 
 referring to them as belonging to the 
 plaintiff's wife. 
 
 Counsel for defendants contended that 
 the plaintiff was estopped by his silence 
 as to his ownership of some, of the goods, 
 and by the language of the attorney's 
 letters, from setting up the present claim. 
 
 Held, (Dtjbuc, J., dissentmg) that the 
 defendants had failed to prove that they 
 had been induced to do anything, or to 
 abstain from doing anything, by reason of 
 what the plaintiff had feaid or done, or 
 omitted to ^ay or do, and that the plaintift 
 was entitled,to recover. — 
 
 Pickard v. Sears, 6 A.: & E. 469, dis- 
 tinguished. Montgomery v. Hellyar, 9 M. 
 R. 551. ^ 
 
 3. Illegal distress — Distress for interest 
 ^— Mortgage — ■ Attornment — Evidence\ — 
 Admission — 11 Geo. 2, c. 19, a. 19. 
 
 The* plaintiff su^d the defendants in 
 trespass and trover for seizing and selling 
 her crops under a warrant of distress 
 issued by them directing- their bailiff to 
 levy the amount of arrears of interest due 
 on a mortgage given them by one Robert- 
 son, the lessor of the plaintiff, on the land 
 
 on which the crops had been grown. The 
 mortgage contained the usual provision 
 that the defendants might distrain for 
 arrears of interest. It also contained an 
 attornment clause by which the mortgagor 
 became a tenant to the defendants of the 
 land at a yearly rental equal to the amount 
 of interest payable in the mortgage. 
 
 Held, that under R.S.M., c. 46, s. 2, 
 the distress was wholly illegal, as the 
 defendalnt could only take the goods of 
 the mortgagor for arrears of interest due 
 by him. 
 
 The bailiff, after making the "seizure, 
 neglected to give notice of the distress or 
 to make an appraisement of the goods, 
 but it appeared that, after the seizure and 
 sale of the crops, the plaintiff's husband 
 agreed with the defendants' manager tq 
 pay the defendants $200 if they would 
 abandon their claim to the crops, and 
 procure a release from the person who had 
 bought them at the sale. This money was 
 afterwards paid and accepted by the 
 defendants, and they contended that the 
 agreement ^as an admission of rent being 
 due and that the.statute 11 Geo. 2, c. 19, 
 s. 19, applied so as to prevent the plaintiff 
 from bringing an action such as the 
 present, and that she was restricted to an 
 action on the case for any special damages 
 that she might be able to prove. 
 
 Held, that there was not sufficient 
 evidence that any interest was in arrear 
 on the mortgage or any rent overdue, and 
 that the agreement entered into by the 
 plaintiff's husband could not be construed 
 as an admission that any rent was due by 
 Robprtson, and therefore that the case 
 was not brought within the last mentioned 
 statute. MUler v. Imperial Loan & In- 
 vestment Co., 11 M. R. 247. 
 
 See Chattel Mortgage, II, 3. , 
 
 — Damages, 2. 
 
 — Fi. Fa. Goods, 4. 
 
 — ■ Landlord and Tenant, I. 
 
 DISTRESS FOR TAXES. 
 
 See Taxation, 1. 
 — Taxes.' 
 
 DOCUMENTARY EVIDENCE. 
 
 See EviDKNCB, 3. 
 
345 
 
 DOG RUNNING AT LARGE. • 
 
 346 
 
 DOG RUNNING AT LARGE. 
 
 Destruction of unlicensed dog. 
 
 The defendant shot and killed the 
 plaintiff's dog, which was running home 
 alone on the highway, at the bidding of 
 the plai^iff's wife, whom he had been 
 following. ,He had not a metallic ticket 
 fastened on his neckj as required by 34 
 Vic, c. 21 (Man.), which enacts that every 
 dog foimd running at large without euai 
 a ticket liiight be destroyed by any one 
 who should so find him running at large; 
 nor had the Provincial tax fixed by the 
 Act been paid for several years. 
 
 Per Wood, C.J. — The dog was running 
 at large within the meaning of the Act, 
 •and was therefore lawfully destroyed by 
 the defendant. 
 
 Per McKeagnet, J. — ^The dog was obey- 
 ing the command of the plaintiff's wife, 
 was therefore under her control, and was 
 not running at large within the meaning 
 of the Act. 
 
 The Court being equally divided, the 
 verdict for the plaintiff in the Court 
 below was upheld. Allan v. McKay, 
 T.W., 111. 
 
 DOMINION ELECTIONS ACT. 
 
 R. S. C. 1906, c. 6, ss. 193, 206— 
 
 Application for recount of votes — Man- 
 damus to County Court Judge to proceed — 
 Return to Clerk of the Crown in Chancery — 
 Affidavit on application to County Court 
 Judge to order recount, requirements of, 
 under .section 193 — Swearing on informa- 
 tion and belief not sufficient. 
 
 The afBdavit required by section 193 
 of the Dominion Elections Act, R. S. C. 
 1906, c. 6, upon receipt of which the 
 County Court Judge is to proceed to 
 recoimt the ballots cast at an election of 
 a member of the House of Commons, must 
 be such as to make it appear to the Judge 
 that a, deputy returning officer has erred 
 as therein stated, and such requirement 
 is not satisfied liy the affidavit of an 
 elector who merely states that he verily 
 believes that such error has' been com- 
 mitted. All that was made to appear by 
 the affidavit was the deponent's belief in 
 certain facts, but the Act requires that 
 the facts themselves must be made to 
 appear by the affidavit. 
 
 Be North Cape Breton and Victoria 
 Eledim, (190S) 6 East. L. R. 37, 532, 
 followed. 
 
 After the returning officer has made hia 
 return ,to the Clerk of the Crown in 
 Chancery, il; is too late to apply, under 
 section 206 of the Act, to a Judge of the 
 King's Bench in Manitoba for an order 
 compelling the County Court Judge to 
 proceed with the recount. 
 
 Bellechasse Election, (1886) 17 Q. L. R., 
 294, and Portneuf Election, (1892) 1 
 ,Q. R. S. C.'268, followed. Re Dauphin 
 Election, 21 M.R. 629. 
 
 DOMINION LANDS. 
 
 See BoTJNDARY Lines. 
 — Crown Lands, 1. 
 
 DOMINION LANDS ACT. 
 
 1. Agreement to assign interest in 
 homestead before issue of patent — 
 Illegality. 
 
 1. Under section 42 of the Dominion 
 Lands Act, R.S.C., c. 54, as re-enacted by 
 section 5 of 60 and 61 Vic, (D.), c 29, an 
 agreement made by a homesteader, before 
 issue of the patent and before procm-ing a 
 certificate of recommendation for patent 
 from the local agent, to assign and trans- 
 fer an interest in the homesteaded land to 
 another person, though made in good 
 faith and for an adequate consideration, 
 is absolutely nuU and void and cannot be 
 enforced at the suit of such other person. 
 
 AbeU V. McLaren, (1901) 13 M.R. 463, 
 not followed. 
 
 2. Since the case of AuJ)ert v. Maze, 
 (1801) 2 B. & P. 371, there has been no 
 distinction between malum prohibitum and 
 malum in se as to anjrthing forbidden by 
 statute. 
 
 Cannan v.Bryce, (1819) 3 B. & Aid. 179, 
 and Wetherell v. Jones, (1832) 3 B. & Ad. 
 221, followed. Cumming v. Cumming, 15 
 M.R. 640. 
 
 2. Charge on land created by home- ^ 
 steader before recommendation for 
 patent — Declaration by Minister- of In- 
 terior as to effect of such charge — Estoppel. 
 
 A charge on land created by a home- 
 steader before it is recommended for 
 patent is absolutely void under section 
 142 of the Dominion Lands Act, R.S.C. 
 1906, c 55, andfa declaration of the Min- 
 ister of the Interior under that section 
 waiving the forfeiture of the homestead 
 
347 
 
 DOMINION PAJILIAMENT— POWERS OF. 
 
 348 
 
 right that would otherwise foUow the 
 giving of such a charge has not the effect 
 of making it valid in the hands of the 
 grantee. 
 
 Harris v. Rankin, (1887) 4 M.R. 115, 
 Cumming v. Cwmming, (1904) 15 M.R. 
 640, and Anderson v. Carkins, (1890) 135 
 U.S.R, 483, followed. 
 
 One who took a conveyance of the 
 property frdm the homesteader after 
 recommendation for patent is. not estopped 
 from setting up the invaUdity of a charge 
 . created before recommendation by reason 
 only that he had acted as the agent of the 
 party iii acquiring the prior charge, having 
 ceased to be such agent before getting his 
 deed. 
 
 Howell, C.J.A., dissenting. American 
 Abell Co. V. McMillan, 19 M.R. 97. 
 
 3. Charge on land for debt to Crown 
 
 — Costs — Real Property Act — Registry Act. 
 
 Under section 18 of 60 & 61 Yic, (D.), 
 c. 29, amending the Dominion Lands Act 
 and set out in statement of case, unless 
 the Registrar makes the necessary, entries 
 respecting the indebtedness of the patentee 
 there referred to "in the proper register or 
 othpr record book in his office," no charge 
 or lien will be created on the land com-, 
 prised in the patent for such indebtedness 
 
 A docket or note book in which the 
 ' Registrar kept a record of applications 
 under The Real Property Act received 
 and examined by him is not to be con- 
 sidered "the proper register or record 
 book" in which to make the necessary 
 entries, which should have been made in 
 the Abstract Book kept under The Reg- 
 istry Act, as the patent had been regis- 
 tered under the old system of registration. 
 
 Under Rule 277 of The Queen's Bench 
 Act, 1895, costs win be given against the 
 Crown when it fails in proceedings taken 
 by way of caveat and petition under The 
 Real Property Act. Reg. v. Fawcett, 13 
 M.R. 205. 
 
 DOMINION PARLIAMENT- 
 POWERS OF. 
 
 See Constitutional Law. 
 
 DOUBLE POSSIBILITY. 
 
 See Deed op Settlement. 
 
 DRAINAGE. 
 
 See Municipality, II, 2; III, 2, 3, 4. 
 
 — Watebcouhsb. 
 
 DREDGING SAND FROM BED OF 
 RIVER. 
 
 See Injunction, I, 4, 5. 
 
 DRUGGIST SELLING LIQUOR. 
 
 See LiQUOK License Act, 4. 
 
 See Contract XI, 1; XV, 7. 
 
 — Masteb and Servant, IV, 3, 4. 
 
 DUPLICITY. 
 
 See Criminal Law, XVII, 4. 
 
 — Extradition, 8. 
 
 — Liquor License Act, 10. 
 
 DURESS. 
 
 1. Agreement signed under threat 
 of criminal proceedings — Award — Ac- 
 quiescence—Waiver. 
 
 The plaintiff having bought two horses 
 from the defendant and given a chattel 
 mortgage upon them which was to be paid 
 -by delivering hay, a dispute arose as to 
 whether the horses had been paid for or 
 not. Defendant then seized the horses, 
 claiming a right to do so under the chattel 
 mortgage, when plaintiff prosecuted him 
 for stealing. The defendant then threat- 
 ened to prosecute the plaintiff for perjury 
 in swearing to the iuformation. The 
 parties then agreed to refer their disputes 
 to arbitratioii, the plaintiff havmg been 
 induced by the threats to do so. The 
 proceedings of the arbitrators were ad- 
 mittedly irregular, but an award was 
 made giving the horses to defendant who 
 was to pay the feed bill due against them, 
 and $15 for previous expenses. The 
 defendant then paid the feed bill aad the 
 $15 and took away the horses. 
 
349 
 
 EARLY CLOSING. 
 
 350 
 
 More than four months afterwards the 
 plaintiff replevied the horses in the County 
 Court, when the Judge found that the 
 horses had been paid for by the delivery 
 of hay, and that the arbitration proceed- 
 ings were irregular, but was of opinion 
 that^ plaintiff had by his conduct and 
 acquiescence waived all objections to the 
 award. 
 
 On appeal to a Judge of the Queen's 
 Bench, 
 
 Held, that the agreement of arljitration 
 was wholly void. 
 
 Williams v. Bayley, 4 Giff: 638, L. R. 
 
 I H. L. 200, and Windhill Local Board v. 
 Vint, 45 Ch. D. 351, foUowed. 
 
 Phwer V. Sadler, 10 Q. B. D. 572, 
 distinguished. _ 
 
 Held, also, that the plaintiff was not 
 estopped from objecting to the agreement 
 and award by the fact that he had allowed 
 the defendant to take the horses and pay 
 the money according to the award, or by 
 allowing the defendant to keep the horses 
 for so long. Hayward v. Phillips, 6 A 
 & E. 119; Bartley. Musgrave, 1 Dowl. N. 
 S. 325, followed. Laferriere v. Cadieux, 
 
 II M. R. 175. 
 
 notes and seeking to recover back such 
 payments. 
 
 HeU, that this plea could not be 
 supported, as it did not show that the, 
 payments in question had been made in 
 consequence of any fresh threats or undue 
 influence or pressure, but as far as the 
 plea showed had been voluntarily made. 
 
 The defendant had withdrawn certain 
 pleas, intending to rely on the issue in 
 law on the demurrer; but, when the 
 plaintiffs, on "their demurrer faihng, got 
 leave to file replications, the defendant 
 was also given leave to re-instate his plea 
 of non fecit, and to apply on affidavit to 
 re-instate his other pleas. Commercial 
 Bank v. Bokeby, 10 M. R. 281. 
 
 See Bills and Note, VIII, 11. 
 
 — MOKTGAGOE AND MOETGAQEE, IV, 3. 
 
 EARLY CLOSING. 
 
 See Constitutional Law, 16. 
 — Municipality, VII, 4, 
 
 2. Promissory notes signed under 
 threat of criminal prosecution— i2e- 
 
 covery of money paid on such notes — Undue 
 influence — Practice — Re-instating aban- 
 doned pleas. 
 
 Demurrer to plea on equitable grounds 
 setting up that the defendant had been 
 induced to sign the promissory notes sued 
 on by threats of a criminal prosecution in 
 settlement of a claim preferred against 
 hiln by the plaintiff, and that the defend- 
 ant was not really liable for such claim, 
 that he had acted without legal or. inde- 
 pendent advice, and had been induced to 
 beUeve that he was liable for the amount 
 and signed the notes in that~~beUef and in 
 consequence of such threats, and that 
 save as aforesaid no value or consideration 
 had passed for the making or payment of 
 the notes. 
 
 : Held, DuBuc, J., dissenting, that this 
 plea was good as it showed sufficient 
 groimds in equity for granting relief to 
 the defendant: McCkUchie v. Haslam, 65 
 L. T. N. S. 691, andOsbaMiston v. Simpson, 
 13 Sim. 513, foUowed. 
 
 The other plea demurred to was one of 
 counter claim setting up the same state 
 of facts as to the giving of the notes in 
 question, and that the defendant had paid 
 certain sums of money on account of such 
 
 EASEMENT BY PRESCRIPTION. 
 
 See Wat of Necessity. 
 
 EJECTMENT. 
 
 1. Evidence of default in payment of 
 mortgfage — Possession — Payment of taxes 
 is evidence of possession. 
 
 The plaintiff .brought ejectment in 1893 
 for the lot of land in question, upon 
 which he had made a mortgage in 1875, 
 and set up that all claim under the mort- 
 gage was barred by the Statute of Limi- 
 tations, and that it must be presumed to 
 have been satisfied, and that neither the 
 mortgagees nor any person claiming 
 through them had attempted to take 
 possession of the property until the year 
 1892. The defendant relied on a sale 
 imder the power of sale in the mortgage 
 which took place in the year 1877, and 
 claimed that he had in 1891 acquired the 
 property by an agreement of sale from 
 the purchaser under the mortgage. The 
 defendant in June, 1892, took actual 
 possession of the property, put a fence 
 around it and erected a dwelling upon it. 
 There was no direct evidence of default 
 
351 
 
 EJUSDEM GENERIS. 
 
 352 
 
 in payment of the mortgage, but a notice 
 of mtention to exercise the power of sale 
 in it was produced dated November 20th, 
 1876. This -notice was in the usual form 
 and had indorsed on it a certificate of 
 service on the plaintiff by a baUiff, since 
 deceased, whose handwriting was proved. 
 The conveyance under the power of ^ale 
 was proved, dated June 16th, 1877, and 
 some entries. showing that there had been 
 a mortgage sale were produced from a 
 solicitor's docket. The taxes on the lot 
 since they were first levied in 1882, and 
 up to the present time, were paid by the 
 defenda;nt, and those "through whom he 
 claimed. The ijlaintiff had done nothing 
 to assert his title', or his right of possession, 
 from the time of the mortgage sale up to 
 the issue of the writ of ejectment. 
 
 Held, that under the' circumstances 
 there was sufficient evidence , to prove 
 default in payment of the mortgage in the 
 absence of any evidence to the contrary, 
 and that the service of the notice of' sale 
 and the sale under the power were suf- 
 ficiently proved. 
 
 Held, also, that the payment of the 
 taxes by the defendant and those through 
 whom he claimed was evidence of posses- 
 sion, and that the defendant had estab- 
 lished occupation and possession of thfe 
 said land by himself and those through 
 whom he claimed^ for over eleven years, 
 and that the plaintiff should be nonr 
 suited. Hughes v. Rutledge, 10 MtR. 13. 
 
 2. Local actii^ — Ejectment — Moving 
 against irregularity. 
 
 Held, 1. A writ of ejectment must be 
 issued in the district in which the land 
 ■ nMbs. 
 
 2. A party objecting to a proceeding on 
 the ground of irregularity must move 
 within the time allowed to take the next 
 step in the cause. Landed Banking and 
 Loan Co. v. Douglas, 2 M.R. 221. 
 
 3. Right of action by reversioner'. 
 
 An owner of land may bring an action 
 to recover possession, although he has 
 previously given a lease of it to a third 
 party. Penner v. Winkler, 15 M.R. 428. 
 
 4. Stay of execution till equity done 
 by plaintiff. 
 
 Where a plaintiff recovered a verdict in 
 an action of ejectment, execution was 
 stayed until he had paid the amount of an 
 equitable mortgage on the land, the value 
 of improvements made by the \ purchaser 
 froin the equitable mortgagee, and con- 
 
 firmed a lease of the preinises. McKenney 
 V. Spmce, T.W., 11. 
 
 5. Title by possession — Subsequent 
 possession o} defendant. 
 
 In 1862, T. erected a house on the land 
 in question, the fee of which was in the 
 Grown, and Uved in the house and exer- 
 cised acts of possession on the land for 
 two years, when he died. Before his 
 death, he verbally gave the house and his 
 interest in the land to his daughter, the 
 wife of W., who was residing with him. 
 After T.'s dcEiith, W. resided on the land 
 for a few months, and then left. W. con- 
 vejred to the plaintiff by deed, which was 
 registered. After the conveyance to the 
 plaintiff, and about two years before 
 action, the defendant commenced plowing 
 part of the land in question, and after- 
 wards took possession of the whole, though 
 forbidden by the plaintiff. The action 
 was commenced in 1880. 
 
 Hetd, .that the mere prior possession of 
 W., the plaintiff's grantor, was not suf- 
 ficient to entitle the plaintiff to recover as 
 against the mere possession of the defend- 
 ant. Lacerte v. Hargrove, T.W., 343. 
 
 6. Transfer of title pending action— 
 
 Evidence loithovi objection — Costs. 
 
 When inadmissible evidence is received 
 at the trial without objection, the opposite 
 party carmot afterwards object to its hav- 
 ing been received. ^ 
 
 In ejectment, if at the trial the evidence 
 shows title out of both jiarties, although 
 in plaintiff when writ issued, the plaintiff 
 is entitled to judgment for costs only. 
 McLaren v. McClelland, 6 M.R. 533. 
 
 See Ceown Patent, 3. 
 
 — Pleading, I, 3; II, 1; XI, 9. 
 
 EJUSDEM GENERIS. 
 
 See GoNTRACT V, 5. 
 
 ELECTION EXPENSES. 
 
 See Election Petition, IV, 3. 
 
 ELECTION OF BENEFITS. 
 
 See Life Insttrancb, 2. 
 
353 
 
 ELECTION OF REMEDY. 
 
 354 
 
 ELECTION OF REMEDY. 
 
 Proceedings at law and in equity — 
 
 Statutes — Construction. 
 
 Plaintiff, after recovering judgment at 
 law against defendant, placed fi. fa. goods 
 and lands in the hands of the- sheriff, and 
 issued garnishing orders. Under the 
 fi. fa. goods the sheriff seized certain 
 mortgages. The plaintiff also registered 
 the judgment against certain lands, and 
 filed a bUl for a sale. Upon an application, 
 at law, to compel the plaintiff to elect 
 between the proceedings at law and in 
 equity, 
 
 Held, 1. The case was not within the 
 provisions of the Con.' Stat. Man., c. 37, 
 s. 83. 
 
 2. There is no practice outside the 
 statute appUcable to the case. At most 
 the question would be one of costs. 
 
 3. The statute can only apply to pro- 
 ceedings at law and in equity, against 
 lands — and probably the same lands— 
 not to proceedings at law against goods, 
 and in equity against lands. AUoway v. 
 Little, 1 M.R. 316, considered. 
 
 4. In any case the application was 
 prematiu'e, the answer in equity not 
 having been filed. Ferguson v. Chambre, 
 2 M.R., 186. 
 
 See Contract, X, 1. 
 — ■ Estoppel, 2. 
 — ■ evidbnce, 17. 
 
 — Pleading, III, 2. 
 
 — Registered Judgment, 1. 
 
 I. 
 
 11. 
 
 III. 
 
 rv. 
 
 V. 
 
 VI. 
 
 VIL 
 
 VIII. 
 
 IX. 
 
 X. 
 
 ELECTION PETITIONS. 
 
 Apfidavit op PSTITIOTreR. 
 Allegations in Petition. 
 Copt op Petition. 
 Corrupt Practices. 
 Practice. 
 
 prei.iminakt objections. 
 Recognizance. 
 Return to Writ. 
 Security pob Costs. 
 Status op Petitionee. 
 
 I. Appidavit op Petitioner. 
 
 1. Abuse of the process of the Court 
 
 — Preliminary objections—Dominion Con- 
 troverted Elections Act — 64 & 55 Vic, (D.), 
 c. 20, s. 3 — Examination of petitioner. 
 
 The affidavit required by 54 & 55 Vic. 
 (D.), c. 20, s. 3, to be made by the peti- 
 
 tioner, and presented with his petition, 
 that he has good reason to believe and 
 verily does beHeve that the several alle- 
 gations contained in the said petition are 
 true, must be a true affidavit, and if it be 
 shown that the petitioner has no good 
 reason for such belief all proceedings on 
 the petition, will be stayed for wan^ of 
 jurisdiction in the Court. 
 
 Held, also, (1) That the respondent 
 might take the objection within a reason- 
 able time after he discovered it, notwith- 
 standing the time had passed for fifing 
 preliminary objections under section , 12 
 of the Dominion Controverted Elections 
 Act, (Bain, J:, dissenting as to this 
 point.) 1 
 
 (2) That under section 2, s-s. (j), the 
 Court has the same power at any time_,to 
 correct an abuse of its process, or to punish 
 a fraud attempted to be practised upon it, 
 as it would have in an ordinary case withiii 
 its jurisdiction. 
 
 The petitioner was examined, under 
 section 14 of the Act, upon hm affidavit, 
 and practically admitted the falsity of 
 his statement therein, but qucere, whether 
 the examination on the affidavit was not, 
 ultra vires f 
 
 Per Taylor, C.J. — Even if the examina- 
 tion on the affidavit was unauthorized by 
 the statute, no objection was taken, to it 
 at the time and, besides, the Court can of 
 its own motion at any time direct an 
 inquiry as to any fraud practised upon it, 
 or any improper use of its process: Dungey 
 V. Angove, 2 Ves. 304. 
 
 Re Marquette Election, King v. Roche, 
 11 M.R. 381. 
 
 Appeal to Supreme Court quashed, 
 27 S.C.R. 219. 
 
 2. Abuse of the process of the Court 
 
 — Dominion Controverted Elections Act — 
 Preliminary objections — 54 & 55 Vic, (D.), 
 c. 20, s. 3 — Examination of petitioner. 
 
 This was a motion to stay the proceed- 
 ings on an election petition on the samfe 
 ground as that relied on in Re Marquette 
 Election, supra. The petitioner, on 
 his examination on his affidavit pre- 
 sented with the petition, stated that 
 before making the affidavit there were 
 read to him statements made by a number 
 of persons as to transactions connected 
 with the election, and he gave several 
 instances of corrupt practices which had 
 been related to him by certain persons 
 whose names he gave, and he said he 
 believed these statements were correct. 
 
355 
 
 ELECTION PETITIONS. 
 
 356 
 
 Held, that it could not be said that his 
 affidavit was untrue, although his evi- ■ 
 dence was far from satisfactory, and a 
 Judge might feel that he could not have 
 made the affidavit on the same informa- 
 tion that the petitioner had. 
 
 Appeal from judgment of Killam, J., 
 dismissing motiqn, dismissed without 
 costs. Re MacdonaU Election, Snider v. 
 Boyd, 11 M.R. 398. 
 
 II. Allegations in Petition. 
 
 Preliminary objections— Sfa^tts of pe- 
 titioner — Notice in Gazette — "Immediately" 
 — Identity of petitioner — Vagueness — ^Se- 
 curity — Bond — Affidavits of jiistification. 
 ^ The status of the petitioner may be 
 enquired into upon a preliminary objection 
 to the petition. 
 
 The absence of notice of presentation of 
 tlie petition in the Octzette is not a ground 
 for preliminary objection. 
 
 Meaning of the word "immediately." 
 
 The absence of the words "Whose name 
 is subscribed," after the name of the 
 petitioner is not a sufficient ground of 
 objection to a petition. 
 
 A petition is npi insufficient for vague- 
 ness or uncertainty because it alleges a 
 number of wrongful acts in the alternative. 
 A petition is sufficient, if it allege inerely 
 that the respondent was guilty of a corrupt 
 practice within the meaning of section 198 
 of The Election Act of Manitoba, 1886. 
 
 Security for costs may be given by bond 
 to the respondent. 
 
 A bend was given to secure certain 
 named costs "and also all costs which on 
 the final disposal of the petition the court 
 shaU aiyard to be payable as provided by 
 the Manitoba Act." The statute re- 
 quired security for "any and all other 
 expenses and charges," 
 
 Held, that the bond, was sufficient, 
 affidavits of justification need not accom- 
 pany the bond. But if the sufficiency of 
 the security be attacked the absence of 
 such affidavits may be considered. Bf. 
 Cartier Election, 4 M.R. 317. 
 
 Not to be relied on: Be St. Boniface, 
 8 M.R. 479. 
 
 III. Copt op Petition. 
 
 1. For returning officer — Preliminary 
 objections — B.S.C., c. 9, s. QZ— English 
 general rules — R.S.C., c. 9, s. 9 (ft) — 
 Description and occupation of petitioner. 
 
 ffeW,'by the Supreme Court, 20 S.C.R. 
 1, affirming the judgment of the Court 
 below, (7 M.R. 581) that, the Judges of 
 the Court in Manitoba not having made 
 rules for the practice and procedure in 
 controverted elections, the English rules 
 of Michadmp,s Term, 1868, were in force, 
 (R.S.C., c' 9, s. 63), and that under rule 
 1 of said English rules the petitioner, 
 when fiUng an election petition, is bound 
 to leave a copy with the Clerk of the Court 
 to be sent to the returning officer, and 
 that his failure to do so is the subject of a 
 substantial preliminary objection and fatal 
 to the petition. Strong and Gwtnne, 
 JJ., dissentiug. 
 
 V Held, further, reversing the judgment 
 of the Court belqw, that the, omis- 
 sion to set out in the petition the residence, 
 address and occupation of the petitioner 
 is a mere objection to the form \^ch can 
 be remedied by amendment, and is there- 
 fore not fatal. Re Lisgar Election, Collins 
 V. iJoss, 20 S.C.R. i. 
 
 2. Signature of copy — Setting aside 
 service. 
 
 Motion to set aside the service of an 
 election petition upon the grounds: 
 
 1. That the copy served was not signed 
 by the petitioner, and did not show, that 
 the original was signed. 
 
 2. That the copy of the recognizance 
 served did not show th^t the original was 
 under seal, and if the original was under 
 seal the copy served is not a true copy. 
 
 3. That there was no style of cause in 
 the petition. 
 
 Refused with costs. La Verandrye 
 Election, 1 M.R. 11. 
 
 3. True copy. 
 
 " The following variances between the 
 original petition and the copy filed; 
 "person" instead of "persons;" places - 
 instead of "place;" "John A. McDonell" 
 instead of "John A. McDonald;'.' "cause" 
 instead of "caused." 
 
 Held, immaterial. 
 
 The condition of the recognizance was 
 as follows: — "The condition of this recog- 
 nizance is that John Hall shall and well 
 and truly pay." 
 
 Held, sufficient. , 
 
 In a certificate at the end of the recog- - 
 nizance one of the sureties was referred to 
 as "the above named W. A. Baldwin." 
 It should have been "William Augustua. 
 Baldwin." 
 
 Held, sufficient. Re Lome Election, 
 4 M.R, 275. 
 
367 
 
 ELECTION PETITIONS. 
 
 358 
 
 IV. Corrupt Practices. 
 
 1. Bribing — Manitoba Controverted Elec- 
 tions Act — Agency — Trivial and unvm- 
 portant offences. 
 
 At the trial of the petition against the 
 respondent seeking to have his election 
 declared void and himself disqualified for 
 bribery and corrupt practices, within the 
 meaning of The Manitoba Controverted 
 Elections Act, R.S.M., c. 29, it was. proved 
 that one D. had been guilty of bribery of 
 a voter. 
 
 D. was a person regularly employed by 
 one of those most prominent on respond- 
 ent's committee, and was working in the 
 committee rooms prior to the elections 
 just as any other member of the com- 
 mittee. ~ 
 
 Held, that he must be considered to be 
 an agent of the respondent, that the 
 respondent was hable for any corrupt 
 practice committed by him, that it was 
 doubtful if the direct purchase of even a 
 single vote for a payment in money by an 
 agent of the respondent could be treated 
 as of a trivial and unimportant character, 
 and the election saved under section 248 
 ot the Elections Act as amended by 55 
 Victoria, c. 12, s. 11; and the election was 
 declared void. 
 
 The only personal charge which was 
 pressed against the respondent was on 
 account of his having paid money for the 
 hire of teams to bring voters to the Court 
 of Revision of the voters' list, held shortly 
 before the election took place, and after 
 respondent had declared himself a candi- 
 date. He had treated this ejjpendituf e as 
 part of his election expenses m furnishing 
 the statement of such after the election. 
 
 Held, that, although this payment, not 
 being included in the Ust~of permitted 
 expenses under section 216 of the Elections 
 Act, was forbidden by that section, yet it 
 was not a corrupt practice within the 
 meaning of section 214. Re Election, for 
 Beautiful Plains, Ferguson v. Davidson, 
 10 M.R. 130. 
 
 2, Bribery — Treating — Furnishing 
 transportation — Proof of ngendy of person 
 guilty of corrupt practice — The Dominion 
 Elections Act, 1900, ss. 108-111. 
 
 1. A charge of bribery,^ whether by a 
 candidate or his agent, is one which should 
 be established by clear and satisfactory 
 evidence, as the consequences resulting 
 from such a charge being established are 
 very serious: Londonderry Case, (1869) 
 1 O'M. & H. 274; Warnngton Case, (1869) 
 
 Id. 42; Ne»ih Victoria Case, (1874) Hodg. 
 Elec. Cas. 702. 
 
 2. To prove agency, the evidence should 
 also be clear and conclusive and such as 
 to lead to no doubtful inference: Sligo 
 Case, (1869) 1 O'M. & H. 300; Perth£ase, 
 (1895) 2 Ont. Elec. Cas. 30. 
 
 3. To constitute agency in election 
 cases, as in other cases, there must be 
 authority in some mode or other from the 
 supposed principal. It may be by express 
 appointment or direction or employment 
 or request, or it may be by recogoition and 
 adoption of the services of one assuming 
 to act without prior authority or request. 
 It may be directly shown, or it may be 
 inferred from circumstances. It may pro- 
 ceed directly from J;he alleged principal or 
 it may be created indirectly through one 
 or more authorized agents: Taunton Case, 
 
 (1874) 2 O'M. & H. 74; Strand Case, (1874) 
 3 O'M. & H. 11; NorthOntarioCase, Hodg. 
 Elec. Cas. (1875) 304; East Elgin Case, 
 (1899) 2 Ont. Elec. Cas. 100. 
 
 4. The fact that a person is a delegate 
 to, or member of, the convention or body 
 which selects a candidate does not of 
 itself make such person an agent of the 
 candidate chosen: Harwich Case, (1880) 
 3 O'M. & H. 69; WesOmry Case, (1880) 
 Id. 78; West Simcoe Case, (1883) 1 Ont. 
 Elec. Cas. 159. _ . ~ 
 
 5. Canvassing, speaking at meetings, or 
 other work in the promotion of an election 
 does not per se establish agenoy> although, 
 according to degree and circumstances, it 
 may afford cogent evidence of agency: 
 Londonderry Case, (1869) 1 O'M. & H. 278; 
 Staleyhridge Case, (1869) Id. 67; Bolton 
 Case, (1874) 2 O'M. &-H. 141; East 
 Peterhoro, (1875) Hodg. Elec. Cas. 245; 
 ComwaU, (1874) Id. 547; South Norfolk, 
 
 (1875) 7d. 660. 
 
 6. Accompanjdng a candidate in his 
 canvass is not sufficient in itself to con- 
 stitute agency: Shrewsbury, (1878) 2 
 O'M. & H. 36; Harwich, (1880) 3 O'M. & 
 H. 69; Salisbum (1883) 4 O'M. & H. 21. 
 
 7. Section 109 of The Dominion Elec- 
 tions A(Jt, 1900, is new and goes far in 
 advance of the former law as to treating 
 voters at an election in omitting the 
 element of corrupt intent, and-shomd be 
 strictly cosnstrued. Under that section 
 the providing or furnishing of refresh- 
 ments or drink would not be ah offence 
 imless done at the expense of the candi- 
 date. 
 
 8. The treating of electors prior to and 
 on polling day by an agent of the respond- 
 ent, although done on a liberal scale, will 
 
359 
 
 ELECTION PETITIONS. 
 
 360 
 
 not be assumed to have' been done witli 
 the corrupt intent necessary to make it an 
 offence, when the Court is satisfied that 
 he was accustomed to keep at all times 
 considerable quantities of liquors on hand 
 and to supply them quite freely to others 
 -in the way of hospitality or as a matter of 
 business, and there is no other evidence 
 to show that the treating was done in 
 order to influence a voter or voters: Gkn- 
 garry Case, (1871) Hodg. Elec. Cas. 8; 
 Brecon Case, (1871) 2 O'M. & H. 44; East 
 Elgin Ca^e, (1879) Hodg. Elec. Cas. 769; 
 Welland Case, (1871) Id. 50. 
 
 The same rule appUes to treating when 
 done in comphance with a cuptom preva- 
 lent in the . country and without ejqiress 
 evidence of any . corrupt iutent in so 
 treating; a]so to the sup;pying of meals at 
 a private house to electors who have come 
 from a distance, in the absence of evidence 
 that this was "done for the purpose of 
 influencing the election: The Rochester 
 Case, (1892) 4 O'M. & H. 157; Dundas 
 Case, (1875) Hodg. Elec. Cas. ^5; London 
 Case, (1875) Id. 214. 
 
 9. The taking unconditionally and 
 gratuitously of a voter to the poll by a , 
 railway company or an individual, or the 
 giving to a voter of a free pass or ticket 
 by railway, boat or other conveyance, if 
 unaccompanied by any condition or stipu- 
 laltion affectingithe voter's action in refer- 
 ence to his vote, is not a corrupt praoticej-- 
 and the onits ia on the petitioner to prove, 
 that the railway tickets supplied had been 
 paid for: BeHhier Case, (1884) 9 S.C.R. 
 102; North Perth Case, (1891) 29 S.C.R. 
 Z31; Lisgar Case, (1901) 13 M.R. 478. 
 
 10. "Wliere a charge is made of an offer 
 not accepted of money to inftience a voter 
 the evidence is required toTae particularly 
 clear .and .conclusive: Sovth Grey Case, 
 (1871) Hodg. Elec. Cas. 52; Prescott Case, 
 (1883) I'Ont. Elec. Cas. 88; Northallerton 
 Case, (1869) 1 O'M. & H. 167. 
 
 The witness in this case, whom the 
 Judges considered to be honest and 
 reliable, said first that the agent, Fiset, 
 told ^im' that the other side was poor, but, 
 "if you come with us, we have lots of 
 money," and aftefwfirds testified: "He 
 said our side was poor and that I wanted 
 money, and if I . wanted to go on their - 
 side they would give me some money." 
 
 Held, too indefinite and vague.. 
 
 The respondent was nominated at a 
 meeting of delegates from different por- 
 tions of the constituency, and, at a public 
 meeting after the close of the conventioi;i, 
 he stated that he expected all the dele- 
 
 gates to help at the election and that he 
 looked for assistance not only from them, 
 but from all supporters of the Govern- 
 ment. 
 
 Held, that these and other general 
 remarks ndade by the respondent were 
 not suflBcient to constitute aU his sup- 
 port's his agents, but that the persons 
 promoting hB election from a central 
 agency or committee in Winnipeg recog- 
 mzed and visited by him, and persons sent 
 out from that agency, should be deemed 
 to be his agents. for the purposes of the 
 election. 
 
 In the following cases agency was held 
 to have been sufficiently proved: 
 
 Alexander Smith, who went to a polling 
 place on election day to look after it, 
 armed with authority to vote there as 
 the respondent's agent. 
 
 Edward Jobin, who had been recognized 
 by the central agency in Winnipeg. 
 Talbot, Biu'eau and Ami, who came from 
 outside the constituency and made Som- 
 erset their headquarters for the promotion 
 of the respondent's election and acted 
 openly there for about three weeks and 
 went about addressing pubUc meetings 
 for the respondent. Biu'eau also had 
 been sent out by the Winnipeg agency to 
 speak at a meeting, and the respondent 
 had an important meeting with Bureau 
 and Talbot from which it was reasonable 
 to infer that he recognized them as 
 working for him in the district. 
 
 Aurele Fiset. This man . canvassed in 
 the constituency for ten days, was at a 
 meeting at which Bureau spoke and 
 Talbot and Ami were present, and he 
 publicly thanked the people for attending 
 at his request. 
 
 The respondent ha,ving allowed the 
 organization of the contest to go into the 
 hands of persons as to whom he could or 
 would not give any information, and hav- 
 ing failed to show that he had made any 
 serious effort to prevent illegal practices, 
 he was refused any costs of his-attendance 
 or examination as a witness, but in other 
 respects the petition was dismissed with 
 costs. Re Lisgar Election, 14 M.B.. 310. 
 
 3. Evidence to disqualify — Proof that 
 candidate took all reasonable means to pre- 
 vent the commission of corrupt practices^ 
 The Dominion Elections Act, 1900, ss. 123^ 
 127,. 146 — Offences of a trimal, unimportant 
 and limited character — Burden of proof-^ 
 Costs — Witness fees — 54-5 Vic., c. 20, s. 15 
 — Statement of election expenses — Pay- 
 ments by candidate otherwise than through 
 
361 
 
 ELECTION PETITIONS. 
 
 362 
 
 his election agent — Payment for expenses 
 or services of agent. 
 
 At the trial of a petition to set aside the 
 election of the respondent and for the dis- 
 qualification (X the respondent for personal 
 complieity in corrupt practices, the Judges 
 found on the evidence that corrupt prac- 
 tices had been committed by five or six 
 different agents of the respondent; but it 
 was urged on his behalf that, under 
 section 127 of The Dominion Elections 
 Act, 1900, the election should not be 
 declared void. The Judges, however, 
 found that, as regards at least two of the 
 said agents, the respondent had given no 
 orders or cautions against the commission 
 of corrupt practices, and that the circum- 
 stances were such as to throw upon him 
 the suspicion of having sanctioned or con- 
 nived at the corrupt practices committed 
 by -a third agent, although he denied on 
 oath haviiig been guilty of any suchvpon- 
 duct. 
 
 Held, (1) That the offences proved could 
 not be deemed to have been of a trivial, 
 .unimportant and limited character, and 
 that the onus was on the respondent to 
 prove afiirmatively, for the purpose of 
 saving the election, that the particular 
 offences proved were committed contrary 
 to his orders and without his sanction and 
 that he had taken aU reasonable means 
 for preventing the commission of corrupt 
 practices, and that, as he had failed to 
 satisfy the Court in that regard, the elec^ 
 tion must be set aside under section 123 
 of the Act. 
 
 (2) That, as to disqualification of the 
 candidate, the onus was on the petitioner 
 to prove beyond a reasonable doubt the 
 guilt of the respondent, and that there 
 was not sufficient evidence to warrant an 
 aflBrmative finding that he had personally 
 been guilty of corrupt practice. 
 
 Centre Wellington Case, (1874) Hodg. 
 Elec. Cas. 579; Russell Case, (1875) lb. 
 199; WeUand Case, (1875) lb. 187, fol- 
 lowed. 
 
 ■ (3) That the omission from the election 
 accounts furnished under -section 146 of 
 the Elections Act of certain payments 
 made by the respondent and his personal 
 payment of the sums directly and not 
 through his election agent, although for- 
 bidden by the Act, are not expressly con- 
 stituted as corrupt practices voiding the 
 election. The Lichfield Division ' Case, 
 (1895) 5 O'M. & H. 34, and the Lancaster 
 Division Case, (1896) lb. 39, distinguished 
 on the ground that the Imperial Statute 
 under which they were decided expressly 
 
 makes these things illegal practices and 
 declares that an election shall be voided 
 for such practices. 
 
 (4) That the payment by a candida,te 
 of an agent's legitimate expenses while 
 engaged in promoting his election is not 
 a corrupt practice; and quaere, whether, 
 payment for the services of such an agent 
 would be so where not colorably made to 
 secure the agent's vote. 
 
 Costs awarded according to the findings. 
 
 In view of the wording of sub-section 4 
 .of "section 15 of 64 & 55 Vic, c. 20, the 
 Court subsequently made an afiBrmative 
 order allowing to the respective parties 
 the witness fees and other actual, necessary 
 and proper disbursements incurred in 
 respect of the issues on which the findings 
 had been in their favor respectively. Be 
 Lisgar Election, 13 M.R. 478. 
 
 4. Returning ofEicer participating in 
 
 — Dominion Controverted Elections Act, 
 R.S.C., c. 9, s.i2 (/) and s. 7 — Preliminary 
 objections — Corrupt practices — Returning 
 officer as party respondent to petition — 
 Certainty in pleading. 
 
 Hearing of preluninary objections to 
 election petitions against both the suc- 
 cessful candidates and the returning 
 ofiioers. 
 
 Each petition alleged, among other 
 things, that the returning officer, acting 
 in coIlusi(^ with the elected' member, 
 unlawfully estabhshed different polling, 
 divisions from those arranged by the 
 Provincial authorities for Provincial elec- 
 tions; that, instead of supplying the 
 deputy returning officers with tifie copies 
 of the voters' lists received from the Clerk 
 of the Crown in Chancery, he made 
 changes and erasures therein and retnoved 
 therefrom the naHies oif many persons 
 entitled to vote and so prevented such 
 electors from voting at the election; that 
 he had given copies of the voters' lists so 
 improperly made out to his co-respondent" 
 and refrained from furnishing such copies 
 to the opposing Candidate and concealed 
 these matters entirely from the latter, and 
 that all this had been done in furtherance 
 of a design previously arranged between 
 the respondents to embarrass ajid hinder 
 those opposed to the election of the 
 elected member; also that the returning 
 officer had signed a large number of cer- 
 tificates in blank to enable voters to vote 
 at Ipolling places for which their names did 
 not appear, and that the respondents 
 had, in these and other wa;ys, conspired 
 to impede and interfere with the free 
 
363 
 
 ELECTION PETITIONS. 
 
 364 
 
 exercise of the franchise of many voters. 
 Held, 1. That the acts complained of 
 might constitute corrupt practices within 
 the meaning of sub-section (f) of section 
 2 of The Dominion Controverted Elec- 
 tions Act, II.S.C., c. 9, for, although they 
 were not so declared by the Dominion 
 Elections Act, or by any other Act di the 
 ParMament of Canada, yet they were 
 infractions of subsequent statutory pro- 
 visions as to the conduct of elections and 
 may amount to corrupt practices within 
 the common law of Parliament, as they 
 might be of such extent that the con- 
 stituency had not had a fair and free 
 •opportunity of electiiig ,the candidate 
 whom the majority might prefer, this 
 being the test applied by Lord Coleridge, 
 C.J., in Woodioard v. Sarsons, (1875) 
 L.R. 10 C.P. at p. 743, and therefore the 
 paragraphs of the petition setting forth 
 such acts should not be struck out on 
 preliminary objections. 
 
 2. The conduct of the retjaming officer 
 in connection with the election being 
 complained of, he was properly joined as 
 a -respondent under section 7 of the Act. 
 
 3. An allegation in the petition that the 
 returning officer, with the knowledge and 
 consent of the elected member, in many 
 ways improperly aided, in the election of 
 the latter Is too vague and should be 
 struck out. Re lAsgar Election Petition, 
 re Selkirk Election Petition, re Brandon 
 Election Petition, re Portage -La Prairie 
 Election Petition, 16 M.R. 249. 
 
 6, Treating — Intent — Appeal — Die- 
 qualification — Payments for accommoda- 
 non. 
 
 Held, upon an appeal by the petitioner, 
 the respondent has no right to seek a 
 reversal of the certificate dismissing 
 coxmter charges against the defeated 
 candidate. 
 
 Held, (Taylor, J., dissenting), although 
 a successful candidate, at an election for 
 the Legislative Assembly, may be found 
 guilty of treating electors, with intent to 
 influence their votes, he may be unseated 
 only, and not disqualified. 
 
 Held, per Wallbridgb, C.J. 1. Treating 
 per SB is not illegal. It is the corrupt 
 intent of influencing voters by it that the 
 statute condemns. 
 
 2. The word "corrupt" in the statute 
 does not mean dejjraved, but rather that 
 the act was done in so unusual ^and sus- 
 picious a way, that the Judge ought to 
 impute to the person a criminal intention 
 in doing it. 
 
 Held, per Taylor,, J. 1. The difficulty 
 of finding the existence of corrupt intent 
 in treating, where, according to the habits 
 and practices of the respondent, and 
 existing generally in the locality, treating 
 is customary, discussed. 
 
 2. Payments to an elector not an hotel 
 keeper for. accommodation, unless exces- 
 sive, are not prima facie corrupt. 
 
 3. Treating, after a meeting, at taverns 
 where ^supporters ~ of both , parties are 
 present — promiscuous treating among a 
 large crowd of men attracted together by 
 a political meeting — is not prima facie 
 corrupt. 
 
 4. Much weight will be attached to 
 the denial by the respondent of corrupt, 
 intent. 
 
 5. To prove agency, authority from the 
 alleged principal must be shown. Be 
 Rockwood Election, Brandrith v. Jackson 
 2 M.R. 129. 
 
 "V. Practice. 
 
 1. Abandoned petition — Costs. 
 
 A petition was filed, styled in the Elec- 
 toral Division of Kildonan. After a pre- 
 liminary objection had been taken on the 
 ground that the name of the constituency 
 was Kildonan and St. Paul's, a new 
 petition was served, together with a notice 
 of abandonment of the former petition. 
 This notice was styled in the Electoral 
 Division of Kildonan, and St. Paul's. 
 Upon a motion by the resijondent that the 
 first petition should be discontinued and 
 that the petitioner should pay the costs 
 incurred. 
 
 Held, 1. That such an application could 
 be entertained. 
 
 2. That, under the circumstances, the 
 appUcation could not be defeated because 
 the summons was styled in the Electoral 
 Division of Kildonan and St. Paul's. 
 
 "3. Although the statute requires that 
 two copies of the preliminary objections 
 are to be left with the prothonotary, one 
 for file and one for the petitioner, yet, if 
 one copy" be filed, and one be served upon 
 the petitioner as provided by Rule 14. 
 the petitioner cannot object. 
 
 4. Proceedings upon the second petition 
 not stayed until payment of the costs of 
 the first. Be Kildonan & St. Paid'x 
 Election, 4 M.R. 252. 
 
 2. Service of order — Counsel represent- 
 ing witness — "Sufficient sureties'." 
 
 At law an order must be drawn up and 
 served within a reasonable time, otherwise 
 
365 
 
 ELECTION PETITIONS. 
 
 366 
 
 the other party may treat it as abandoned. 
 But the order wiU not be set aside on the 
 ground of delay unless the other party's 
 position has been affected by it. ~ 
 
 In equity only ex parte orders require 
 service. The common law prevails as to 
 service of orders in election cases. 
 
 An order was made for the examination 
 of witnesses upon a chamber application. 
 The order was not served, but the opposite 
 attorney attended on, and took part in, 
 the examination. 
 
 Held, that the depositions might be 
 read. 
 
 A witness cannot be represented by 
 counsel, nor can counsel engaged in the 
 case be heard in support of any objection 
 the witness may liave to giving evidence. 
 
 The expression in The Controverted 
 Elections Act, "three sufficient sureties," 
 means three, siireties each of whom is suf- 
 ficient for the whole amount. Be Assini- 
 boia Election, 4 ]\il.R. 328. 
 
 VI. PKELIMINARy OBJECTIONS. 
 
 1. Appeal from single Judge^Bteo- 
 
 iion petition without prayer — Amendment. 
 
 An appeal wiU lie against the order of a 
 single Judge allowing preliminary objec- 
 tions, and thereupon dismissing a petition. 
 
 An -election petition set forth certain 
 corrupt practices and concluded as fol- 
 low^: "Your petitioner alleges that, by 
 reason of one or inore of such acts or 
 practices, the election of said C. E. H. 
 was void." 
 
 Held-, that these words constituted a 
 sufficient TJrayer for relief. 
 
 2. That, if necessary, an amendment 
 could be made. Re Shoal Lake Election, 
 ."iM.R. 57. 
 
 2. Re-opening trial to let in further 
 evidence — Dismissal for want of jprgse- 
 cution — Manitoba Controverted Elections 
 Act, R:S.M: 1902, c 34, ss. 10, 13— 
 Dominion GonirovertedElections Act, B,S.C. 
 1906, c. 7, s. Z9— King's Bench Act, 
 R.S.M. 1902, c. 40, ss. 92, 93. 
 ■ 1. Under The Manitoba Controverted 
 Elections Act, R.S.M. 1902, c. 34, and 
 sections 92 and 93 of the King's 3ench 
 Act, R.S.M, 1902, c, 40, the Judge, at the 
 trial of prelimiiiary objections to an elec- 
 tion petition, may, even after the peti- 
 tioners have closed their case, re-open it 
 and allow them to put in further evidence 
 to, prove their status as j)etitioners. 
 
 2. The I requirement in section 39 of The 
 Dominion Controverted Elections Act, 
 
 R.S.C. 1906, c. 7, that an election petition 
 must be brought to trial within six months 
 from the time of its presentment, is not 
 imported into the law governing election 
 petitions under The Manitoba Contro- 
 verted Electfons Act, R.S.M. 1902, c. 34, 
 by the language of section 13 of the latter 
 Act. Such a provision would require a 
 positive statute, as ft deals with some- 
 thing more than a mere matter of practice 
 and procedure. Be Morris Election, 17 
 M.R. 330. 
 
 3. Service of. 
 
 The Manitoba Controverted Elections 
 Act, R.S.M. c. 29, s. 37, provides that 
 "Within five days after the service of the 
 petition .... . the respondent 
 may produce any preliminary objections, 
 or grounds of insufficiency, which he may 
 have to urge against the petitioner or 
 
 against the petition; he 
 
 shall in such case at the same time file a 
 copy of such objections or grounds for the 
 petitioner." *" 
 
 Rule 14, after dealing with the subject _ 
 of filing preliminary objections, says, "and 
 shall serve a copy thereof." 
 
 The respondent filed a copy of his pre- 
 liminary objections for the petitioner and 
 then, under rule 14, obtained a summons 
 to dispose of these objections. There was 
 no evidence to show whether they had been 
 served or not. 
 
 Held, that, there being no' evidence to 
 show that a copy of the preliminary objec- 
 tions had not been served,, it must be 
 assumed that the Judge who issued the 
 s^unmons was satisfied with the (regu- 
 larity of the respondent's proceedings up 
 to that time. Be St. Boniface Election, 
 8 M.R. 446. ' 
 
 i'. Summons to dispose of — Time 
 within which to take cut. 
 
 The preliminary objections to an elec- 
 tion petition cannot be dismissed on the 
 ground that the respondent did not, 
 within five days after the filing of the 
 objections, take out a summons to dis- 
 pose of them, as required by Rule 14. 
 The statutory obligation to hear and 
 decide the objectiions still remains. 
 
 Ride 14, as to taking out such a sum- 
 mons, is equally obligatory upon each 
 party. 
 
 -Be St. Andrews Election, 4 M.R. 514, 
 commented on. Be Brandon City Election, 
 8M.R. 505. 
 
 See Costs, XII, 1. 
 
367 
 
 ELECTION PETITIONS. 
 
 368 
 
 VII. Recognizance. 
 
 1. Justice of the Peace. 
 
 . An election petition was filed and served 
 on 15th January. An order allowing 
 respondent ten days' further time to file 
 preliminary objections "to the petition 
 and proceedings" was made on the 20th 
 January. A statement of preliminary 
 objections was filed on the 26th January, 
 anong which was an objection that the 
 recognizance for security for costs was 
 taken before a Justice of the Peace. 
 
 Held, that such an objection was not a 
 preliminary objection; that the rules were 
 erroneous in so treatmg it, and that the 
 objection might be taken at any time. 
 
 The Elections Act declared that "The 
 Judge shall then hear the parties upon 
 such objections." The rules limited the 
 time for hearing to five days after the 
 commencement of the time referred to as 
 >"the] 
 
 'em, 
 
 Held, that this rule was ultra vires. 
 
 The recognizance was taken before S., 
 who was a commissioner for takihg afii- 
 davits, and ,also a Justice of the Peace. 
 It purported to have been taken before S. 
 in his quality of a Justice. As a Justice 
 he had no power to take the recognizance, 
 but as a coiHmissioner he had. 
 
 Held, that the recognizance was void. 
 In re St. Aridrews, 7 C.L.T., Occ.N. 277. 
 
 2. Justice of tlbe Peace. 
 
 An objection that the recognizance for 
 security for costs was taken befor^ 
 a Justice of the Peace is a preliminary 
 objection. Preliminary objections having 
 been filed in proper time, a summons to 
 consider them will not be discharged 
 merely because it has not been taken out 
 within the time limited by statute. 
 
 A Justice of the Peace has no power to 
 take a recognizance in an election case. 
 (Se NoHh Dufferin Election, 4 M.R. 
 280, followed.) 
 
 A recognizance was taken before R. S., 
 described ^s a Justice of the Peace. He 
 was also a commissioner, but nothing 
 appeared upon the recognizance to show 
 that fact. 
 ■ Held, that the recognizance was invalid. 
 
 These were appeals from the decision of 
 Wallbbidge, C. J., in re St. Andrews 
 Election, and-DoBUC, J., in re Lavarandrye 
 Election, (in which he followed re St. 
 Andrews Election) . ReLaverandrye Election, 
 re St. Andrews Election, 4 M.R. 514. 
 
 3. Justice of the Tbslc^— Amendment 
 of security. 
 
 Justices of the Peace have no authority 
 or jurisdiction save that of the old "Con- 
 servators of the Peace," and such as have 
 been given to them by statute. They 
 have no power to take a recognizance upon 
 an election petition. 
 
 A person voluntarily entering into a 
 recognizance is not estopped from denying 
 its validity. 
 
 The practice in England with reference 
 to security for costs has not been intro- 
 duced into Manitoba. 
 
 If the security upon an election petition 
 be imperfect there is no power to permit 
 an amendment of it or the substitution of' 
 other security. 
 
 Ujjon a preliminary objection to a 
 petition upon the ground that the recog- 
 liizance was taken before a Justice of the 
 Peace, the recognizance having been held 
 bad, the petition was dismissed with costs. 
 
 Re North Duferin Election, 4 M.R. 280. 
 
 4. Justice of the Peace — Bond withovt 
 seals — Amendment. 
 
 An instrument in the form of a recog- 
 nizance not under seal, taken before a 
 Justice of the Peace, was filed as security 
 for costs. 
 
 Held, 1. Irregular as a recognizance, 
 (Re Nm-th Duferin Election, 4 M.R. ^80 
 followed) ; and invalid as a bond for want 
 of seals. 
 
 2. That the Court had no power to per- 
 mit the substitution of other security. 
 Re Emerson Election, 4. M.R. 287. 
 
 VIII. Rbtubn to Writ. 
 
 Preliminary objections — • Manitoba 
 Controverted Elections Act, R.S.M., c. 29, 
 s. 18 — Manitoba Election Act, R.S.M., 
 c. 49, s. 196 — Return to Clerk of Executive 
 Council and gazetting same before result of 
 recount — Time for filing petition. 
 
 The Retvuning Ofiicer' having made his 
 return to the -Clerk of the Executive 
 Coimcil, pursuant to section 196 of The 
 Manitoba Election Act, R.S.M., c. 49, 
 but without waiting fo^ the result of a 
 recount of which he had received notice, 
 the Clerk, as required by section' 200, 
 published the election of the respondent 
 in the next number of the rManitoba 
 Gazette. 
 
 The petition was filed on the last of the 
 30 days thereafter in accordance with 
 section 18 of The Manitoba Controverted 
 Elections Act, R.S.M., c. 29. 
 
369 
 
 ELECTION PETITIONS. 
 
 370 
 
 After the result of the recount was made 
 known confirming the election of the 
 respondent, the Returning Officer sent 
 another return to the Clerk of the Execu- 
 tive Council, which he duly gazetted, but 
 this was more than six weeks after the 
 filing of the petition. 
 
 Held, that the petition was regular and 
 that a preliminary objection based on the 
 contention that the first return and 
 gazetting of the election were void, and 
 that only a petition filed after the second 
 return would 'be good, should be over- 
 ruled. Re Rosenfeldt Election, 13 M.R. 87. 
 
 IX. Security foe Costs. 
 
 1. Freliminary objections-^Proo/ that 
 security was duly given — Evidence that notes 
 deposited were current money of Canada — ■ 
 Statement of the purposes for which the 
 security was given — Manitoba Controverted 
 Elections Act, R.S.M., 1892, c. 29, ss. 21, 22. 
 
 The petitioners, intendiug to comply 
 with sections 21 and 22 of The Manitoba 
 Controverted Elections Act, R.S.M., c. 29, 
 made a deposit with the Prothonotary, 
 consisting of Dominion notes, one for 
 $500, one for $100, and 150 for $1 eachj 
 and got a receipt stating that the sum of. 
 $750 had been deposited as security "for 
 the payment of all costs, charges and 
 expenses which the Court shall, award to 
 be payable Joiy the petitioners on the final 
 disposal of the petition." 
 
 On the hearing of preliminary objections 
 it was shown that the notes had been 
 handed out by one bank to the petitioners' 
 solicitor as Dominion notes in payment of 
 a cheque; and that, after receiving them, 
 the Prothonotary deposited them in 
 another J bank, which received them as 
 cash. The note for $500 was produced 
 and identified at the hearing, but the 
 others had been paid out in the' course of 
 business and could not be traced. 
 
 Held, (1) That it was not necessary to 
 prove that the notes were genuine and 
 signed by the ' proper officials with the 
 same strictness as would be required in 
 proving other documents before the 
 Court, and that the evidence adduced 
 was sufficient prima fade to establish com- 
 pliance with the Act; and 
 
 (2) That the petitioners were not boimd 
 by the form of the receipt given by the 
 Prothonotary as to the purposes for 
 which the security given was intended, as 
 no receipt is required by the statute to be 
 given. The money was paid in as security 
 
 for costs in the matter, and sections 21 and 
 22 of the Act make it security for all pur- 
 poses therein referred to. Re St. Boniface 
 Election, 13 M.R. 75. 
 
 2. Statement of purposes for which 
 given — Recognizance under seal — Bond. 
 
 Security for "the costs, charges and 
 expenses in respect of. the election jjetition" 
 is sufficient without enumerating the 
 various items for which security is required 
 by the statute to be given. 
 
 Security was given by an instrument in 
 the form of a recognizance, but executed 
 under seal. It was invalid as a recog- 
 nizance because taken before a Justice of 
 tfae Peace. 
 
 Held, that it could not be supported as 
 a bond. In re West Brandon Election, 
 7 C.L.T., Occ. N. 301. 
 
 X. Status op Petitioner. 
 
 1. Burden of proof oi— Preliminary 
 objections — Security for costs — Current 
 money of Canada. 
 
 Where a petition against the election of 
 a member- of the Legislative Assembly is 
 presented by a person other than a can- 
 didate,> the onus is on the petitioner to 
 establish his sUAus. 
 
 Where the only evidence of status was 
 contained in an affidavit which stated: "I 
 was at the time of said election, and at the 
 time of the ffiing of the petition herein and 
 am now, an elector of the said electoral 
 division, and had a right to vote at said 
 election." 
 
 Held, insufficient. 
 
 The Richelieu Election Case, 21 S.C.R., 
 168, followed. 
 
 The security for costs required to be 
 given by the petitioner under R.S.M., 
 c. 29, s. 22, must be in legal tender, i. e., 
 gold coin or Dominion notes. 
 
 Re St. Boniface Election, 8 M.R. 474, 
 followed. Re Cypress Election, 8 M.R. 
 581. 
 
 2. Burden of proof of — I 
 
 objections — Security for costs — Current 
 money of Canada. 
 
 A petitioner against the election of a 
 member to the Provincial Legislature, who 
 was not a candidate, must, if the objection 
 is taken by preliminary objection, estab- 
 lish hfa status lay producing a properly 
 verified copy of the list of electors and 
 some evidence of his identity with some 
 ^ person whose name appears thereon. 
 
371 
 
 ELECTION PETITIONS. 
 
 372 
 
 Stanstead Election Case, 20 S.C.R. 12, 
 followed. 
 
 The seciirity for costs required to be 
 given by R.S.M., c. 29, s. 22, must be in 
 gold coin or Dominion notes. Re St. 
 Boniface Election, 8 M Jl. 474. 
 
 3. Proof of — Dominion ' Controverted 
 Elections Act — Ths Franchise Act, 1898-^ 
 The Dominion Elections Act, 1900. 
 
 On the trial of the preliminary objection 
 to an election petition, filed under The 
 Dominion Controverted Elections Act, 
 that the petitioners were not persons 
 entitled to vote at the election in question, 
 it is not necessary since the passing of The 
 Franchise Act, 1898, and The Dominion 
 Elections Act, 1900, to prove that the 
 names of the petitioners were on theJist 
 of voters which was actually uped Toy the 
 deputy returning officer at the particular 
 polling division; but it will be sufficient to 
 show that their names were on the original 
 list transmitted under section 16 of The 
 Franchise Act, 1898, by the custodian 
 thereof after final revision to the Clerk of 
 the Crown in Chancery, as this-is declared 
 by s-s. 2 of section 16 to be "the original 
 and legal list of voters for the polling 
 division for which the list of which it is a 
 copy was prepared;" and under section 10 
 of the same Act this list may be proved 
 by the production of a copy authenticated 
 by the ordinary imprint of the Queen's 
 Rinter. 
 - The Richelieu Cose,1:i892) 21 S.C.R. 168, 
 and the Winnipeg and Macdonald Cases, 
 (1897) 27 S.C.E,. 2Q1, distinguished on the 
 ground ^of changes in legislation. Re 
 Provencher Dominion Election, 13 M.R. 
 444. - 
 
 4. Proof of — What list of electors must 
 he produced. . 
 
 A petitioner against the election of a 
 member of the Provincial Legislature, 
 who was not a candidate, being required, 
 under The Controverted Elections Act, 
 R.S.M. c. 29, s. 14, to prove his right to 
 vote at the election in answer to a pre- 
 liminary objection, may do so by showing 
 that his name appears on the list of 
 electors for the whole constitueilcy, pre- 
 pared and revised under The Election 
 Act, R.S.M. c. 49, s. 148, and need not 
 show that his name was on the list of 
 voters supplied to the deputy returning 
 officer for use in the polling division in 
 which the petitioner would have the 
 right to poU his" vote. (Taylor, C.J., 
 dissenting.) 
 
 The Richelieu Election Case, 21 S.C.R. 
 168, considered and distinguished. Re 
 Brandon City Election, 9 M.R. 511. 
 
 6. Proof Oft— List of voters — Certificate of 
 Clerk of the Crown in Chancery. 
 
 On the hearing of preliminary objec- 
 tions to the election petition, in order to 
 prove the status of the petitioner, a cer- 
 tificate of the Clerk of the Crown in 
 Chancery, verifying a copy of the list of 
 voters as finally revised for the electoral 
 district, and stating that the copy is a 
 true copy of the list of voters which was 
 used . at such polling division and was 
 returned to him by the returning officer 
 for said electoral district "in the same 
 phght and condition as it now appears, 
 and that said original list of votersls now 
 on record in my office," is, by virtue of 
 section 114 of The Dominion Elections 
 Act, R.S.G. c. 8, sufficient proof that the 
 petitioner was an elector. • 
 
 Richelieu Election Case, 21 S.C.R. 168, 
 followed. 
 
 Re Macdonald Dominion Election, 17 
 CL.T.Occ.N. 159. 
 
 - 6. Proof of — Manitoba Controverted 
 Elections Act, R.S.M. 1902, c. 34, ss.,10, 13 
 — Preliminary objections— Reopening trial 
 to let in further evidence — Evidence to 
 prove deposit of security-^Dominion Con- 
 troverted Eledions Act, R.S.C. 1906, c. 7, 
 s. 6 — Affidavit verifying petition — Practice 
 and procedure in electi,oii petitions, what is 
 — Construction of statuies-^ Headings to 
 groups of sections — Notice to the respondent 
 of the furnishing of the security — Scrwtiny 
 of votes — Claim of seat for opposing can- 
 didate — Manitoba Election Act, R^S.M. 
 1902, c. 52, ss. 183, 184. 
 
 1. Se(*ion 13 of The Manitoba Contro- 
 verted Elections Act, R.S.M. 1902, c. 34, 
 which provides that, "until rules shall 
 have been made in pursuance of the Act 
 and in all cases unprovided for by such 
 rules when made, the principles, practices 
 and rules then in force by which election 
 petitions under The Dominion Contro- 
 verted Elections Act, R.S.C. 1906, c. 7, 
 are governed, shall be observed so far as, 
 consistently with this Act, they may be, 
 so observed," should be limited in its 
 application to matters with respect to 
 wmch the Judges of the Court of King's 
 Bench mighty under section 10 of the Act, 
 make general rules or orders; that is, for 
 the effectual execution of the Act and of 
 the intention and object thereof and the 
 
373 
 
 ELECTION TO AFFIRM CONTRACT. 
 
 374 
 
 regulation of the practice and procedure 
 with respect to election petitions, &c. 
 
 2. Accordingly, the requirement of sec- 
 tion 6 of the Dominion Act, that the peti- 
 tion should be accompanied by an affi- 
 davit verifying the petition, is not im- 
 ported into the Manitoba Act, which 
 gives the right to any elector to present 
 such petition without hmiting it to those 
 who can make such an affidavit. 
 
 3. The concurrence of two tfiings is 
 essential before the Dominion practice 
 can be applied in any particular case; 
 first, the subject must not have been 
 dealt with by the Manitoba Act or rules; 
 and, secondly^it must be something con- 
 cerning which the Judges would have 
 power to make a rule. The requirement 
 of an affidavit verifying the petition is 
 something beyond a ♦mere matter of 
 "practice and procedm:e," and, therefore, 
 the Judges would have no power, under 
 section 10, to make a rule introducing, it. 
 
 4. The inclusion of section 13 among a 
 woup of sections headed "Rules of 
 Court" is further evidence that the 
 Legislature did not intend by that section 
 to incorporate the Dominion statutory 
 enactments as distinguished from rules of 
 practice and procedure. 
 
 5. The rules in force under the Mani- 
 toba statute do nfrt; provide that the 
 respondent should have notice of the 
 furnishing of the security by the petitioner 
 depositing current money of Canada, 
 instead of giving a recognizance or bond 
 as formerly. 
 
 6. A petition imder the said Act may 
 ask for a scrutiny of the votes at the 
 election and may also claim the seat for 
 the opposing candidate. 
 
 7. To prove the peititioner's status on the 
 trial of the prelminary objections, it 
 would be sufficient to produce either the 
 list of~electors for the whole constituency 
 certffied by the Clerk of the Executive 
 Council, or the list actually used by the 
 deputy returning officer with identification 
 of his name as being on one of these Usts, 
 provided there be further evidence to 
 show th^ the petitioner is not disqualified 
 as a voter under tjie provisions of section 
 184 of The Manitoba Elections Act, R.S.M. 
 1902, c, 52. This latter evidence is neces- 
 sary because the petitioner must be a 
 person who has the right to vote and 
 section 183 says that every person whose 
 name appears as an elector on the list 
 . . . shall be entitled to vote at such 
 election, provided at the time of such election 
 
 such person is not disqualified under the 
 provisions of the next following section. 
 
 8. Although the petitioner has closed 
 his case without giving such further evi- 
 dence, the trial Judge may, as at the trial 
 of an ordinary action, re-open the case, 
 and allow him to put in further evidence 
 to prove his status. 
 
 To prove that the documents purporV 
 ing to be Dominion of Canada notes 
 deposited with the Prothonotary by the 
 petitioner for the necessaxy security were 
 genuine, he produced at the hearing of the 
 preliminary objections the identical notes 
 so deposited, showed that the Protho- 
 notary had received them as genuine and 
 had given a receipt describing them, and 
 called a bank official with an experience of 
 ten years who testffied that the notes 
 were genuine and that he knew them by 
 the paper, the scroU on them and by their 
 general appearance. The Prothonotary 
 also swore that the deposit had been 
 made in Dominion notes. 
 
 Held, sufficient, although the bank 
 official did not know by whom Dominion 
 notes should be signed or the genuineness 
 of the signatures appearing on them. 
 Inre St.BonifaceElectionCase, 13 M.R. 75, 
 followed. Re Morris Provincial Election, 
 6 W.L.R. 742. 
 
 See Costs, XII, 1. 
 
 ELECTION TO AFFIRM CONTRACT. 
 
 See Misrepresentation, III. 
 — Mistake, 1. 
 
 ELECTRIC LIGHT COMPANY. 
 
 See Municipality, VIII, 7. 
 
 ELECTRIC WIRES. 
 
 See Negligence, VI, 1. 
 
 ELECTRO-THERAPEUTICS. 
 
 See Medicine. Practice of 
 
375 
 
 EMBARRASSING PLEADINGS. 
 
 376 
 
 EMBARRASSING PLEADINGS. 
 
 See Libel, 4. 
 
 — Pleading, X. 
 
 — Pbactice, XXIII, 2. 
 
 EMPLOYER AND EMPLOYEE. 
 
 See Negligence, VII. 
 
 ENGLISH COURTS, DECISIONS OF 
 
 See Mortgagor and Mortgagee, VI, 15. 
 
 ENLISTMENT IN MILITIA. 
 
 See Military Law. 
 
 ENTERING JUDGMENT. 
 
 See Practice, XXVIII, 17. 
 
 EQUALIZED ASSESSMENTS. 
 
 See Judicial District Boards. 
 
 EQUITABLE ASSIGNMENT 
 
 1. After acquired property — ■! 
 
 ment of — Banks — Powers of — Advances on 
 security of choses in action. 
 
 A fi&m of contractors agreed with S. 
 that, if he would indorse their notes to 
 the Mokons Bank to the amount of 
 $10,000, they would give an assignment 
 to the B^-nk of all moneys to be payable 
 to them from a Railway Company on 
 contracts made and to be made by them 
 with the Railway Company to secure the 
 notes. They also agreed with the Bank 
 that, in consideration of an advance to 
 them of the' money upon their notes 
 endorsed b^ S., they would assign to the 
 Ban£ the said moneys, and gave to N., 
 the Bank manager, a power of attorney 
 authorizing him to collect from the Rail- 
 way Company the said moneys. S. 
 endorsed the notes and the moneys were 
 advanced. 
 
 Held, that this transaction amounted 
 to ah equitable assignment to the Bank ' 
 of the moneys in question. 
 
 Rodick V. GandeU, 1 D. M. & G. 763, 
 distinguished. 
 
 Held, also, that moneys arising out of 
 future contracts can be assigned. 
 
 Tailby v. The Official Receiver, 13 App. 
 Cas. 523; Re Clarke, Coombe v. Carter, 36 
 Ch. D. 348, and Re Turcan, 40 Ch. D. 5, 
 followed. 
 
 BrovM V. Johnston, 12 A.R. 190, dis- 
 tinguished. 
 
 Heldj also, that it is within the powers 
 of incorporated Banks to make advances 
 upon the security of any choses in action, 
 except in so far as the Banking Act 
 expressly excludes such transactions. Mol- 
 sonsBank v. Carscaden, 8 M.R. 451. 
 
 2. Half-breed allotment — Registration^ 
 of patent-^Redtah in patent. 
 
 A half-breed child conveyed all his 
 "right, title, interest, claim, property* and 
 demand both at law and in equity of which 
 he is now in possession, or of which he may 
 hereafter become possessed, of, in and to 
 the said land to which he is, or may 
 become, entitled as heir at law of such 
 half-breed in the said Province of Mani- 
 toba, wheresoever the same has been, or 
 may hereafter be, aUottdd." 
 
 Held, a good equitable assignment. 
 
 Held, that a vendor is bound to register 
 the patent through which he claims title. 
 
 Held, that a recital, in a jiatent two 
 years old, of a death intestate is not suf- 
 ficient evidence of the fact, as between 
 vendor and purchaser. Sutherland v. 
 Schuliz, 1 M.R. 13. 
 
 3. Not necessary to be in writing — 
 
 Equitable assignment — Notice. 
 
 Held, by the Full Court, aflSrming the 
 decision of Taylor, J., that an equitable 
 assignment of a chose in action may be 
 made by any words or acts shewing a 
 clear intention to assign; a deed or writing 
 is not necessary. McMaster v. Canada 
 Paper Co., 1 M.R. 309. 
 
 EQUITABLE CLAIM. 
 
 See Constructive Notice. 
 — Deed of Land, 2. 
 
 EQUITABLE DEFENCE. 
 
 See Pleading, X, 3. 
 
377 
 
 EQUITABLE ESTOPPEL. • 
 
 378 
 
 EQUITABLE ESTOPPEL. 
 
 Remarks upon equitable estoppel, and 
 the Statute of Frauds, as viewed in 
 Courts of Equity. McKenney v. Spence, 
 T.W. 11. 
 
 EQUITABLE EXECUTION. 
 
 and 
 
 Receiver^— Trade Union — Diies 
 assessments payabh by members. 
 
 If there is nothing in the constitution or 
 rules of a trade union importing a contract 
 express or implied on the part of members 
 to pay dues or assessments; a receiver will 
 not be appointed to collect them by way of 
 equitable execution to satisfy a judgment 
 against the union, as a receiver could not 
 recover such dues and assessments by 
 action. 
 
 Cochran v. -Boleman, (1904) 1 Am. & 
 Eng. Ann. Cas., 388, and In re Ontario 
 Insurance Act, (1899) 31 O.R. 154, fol- 
 lowed. Cotter V. Osborne, 19 M.R. 145. 
 
 ^ See Gabnishment, V, 1, 2, 5. 
 
 EQUITABLE INTEREST. 
 
 See Landlord and Tenant, IV, 1. 
 — Paeties to Action, 3. 
 
 EQUITABLE MORTGAGE. 
 
 Subsequent conTeyauce to innocent 
 purchaser — Parol release of equity of 
 redemption — Statute of Frauds. 
 
 G., being seized in fee simple in posses- 
 sion of a piece of land, borrowed £7 from 
 D., and as security therefor deposited 
 with him his title deeds. Being unable 
 to pay the money, it was verbally agreed 
 that D. should take^the land in satisfac- 
 tion. To effiectuate this they went to the 
 Hudson's Bay Company's office to have a 
 transfer made. ,It appeared that the 
 Company kept a register of lands granted 
 by them, on which they entered the name 
 of the grantee, the consideration and a 
 description of the land; and when their 
 grantee or those claiming under him made 
 a sale it was entered in a like manner, 
 sometimes on production of a conveyance,' 
 sometimes on the verbal statement of both 
 parties appearing in person. The official, 
 on this occasion, made the entry as to part 
 
 of the land, but as to the part in question 
 he refused to make the entry, because no 
 entry or conveyance appeared from the 
 Company's grantee to G. G. remained 
 in possession, on an understanding that he 
 might redeem D. within a reasonable time. 
 In 1867 D. got into possession, and sub- 
 sequently sold the land to the defendant, 
 whose name, at the time of the trial, 
 appeared in pencil in the Company's 
 book. G. then conveyed to the plaintiff. 
 Prior to this conveyance D. got' a verdict 
 against G. in the General Court of Assini- 
 boia for trespass. And in an action of 
 ejectment in the same Court by the 
 plaintiff against D., after the conveyance 
 to the plaintiff, the jury found a verdict 
 forD. 
 
 Held, (Betoubnay, J., dissenting), that 
 the. plaintiff was entitled to succeed; for 
 ID., by deposit with him of the title deeds, 
 took an equitable mortgage only, and the 
 subsequent transaction at the Hudson's 
 Bay Company's office had not the effect 
 of conveying the legal estate to him. 
 
 Per Wood, C.J. — ^Though equity will 
 presume a release of the equity of redemp- 
 tion to a mortgagee after a lapse of time, 
 especially where the acts of the mortgagee 
 with respect to the property are such that 
 he could not charge the expense incurred 
 thereabout in an account as mortgagee, 
 in this case any such presumption was 
 rebutted by the mortgagor's remaining in 
 possession and by the miortgagee's own 
 admissions. 
 
 Per Betournat, J. — The Statute of 
 Frauds did not apply to the release of the 
 equity of redemption, because by D.'s 
 taking possession the contract became an 
 executed one, and D. had acquired the 
 legal estate as shown by the verdict in the 
 actions of trespass and ejectment in the 
 General Court of Assiniboia. McKenney 
 v. Spence, T.W., 11. 
 
 See Pledge. 
 
 EQUITABLE RELIEF. 
 
 See Contract, VII, 2. 
 
 — Cottntt CotTHT, I, 25. 
 
 — Jtirisdiction, 2. 
 
 — Misrepresentation, IV, 2. 
 
 — Monet Had and Received. 
 
 — Mortgagor and Mortgagee, I, 4. 
 
 — Pleading, X, 8; XI, 9. 
 
 — Vendor and Purchaser, II, 2, 4, 7; 
 
 VII, 6. 
 
379 
 
 EQUITABLE RIGHT. 
 
 EQXnTABLE RIGHT. 
 
 See Ownership op Crops. 
 
 EQUITABLE SECURITY. 
 
 See Growing GROPSi 
 
 EQUITY OF REDEMPTION. 
 
 See Equitable -Mortgage. 
 
 ERROR. 
 
 See Mortgagor and Mortgagee, VI, 11, 
 
 ERROR AND IMPROVIDENCE. 
 
 See Crown Patent, 6. 
 
 ERRORS IN SURVEY. 
 
 See Survey of Land. 
 
 ESCAPE. 
 
 See Criminal Law, XVII, 19. 
 
 ESCROW. 
 
 See Rbctipipation of deed, 1. 
 
 — ^ Vendor and Purchaser, VI, 10. 
 
 ESTATE SUBSEQUENTLY AC- 
 QUIRED BY COVENANTOR. 
 
 See Crown Patent, 4. 
 
 ESTATE TAIL. 
 
 Barring entail — Enrolment of deed. 
 
 A conveyance barring an entail does 
 not require enrolment, registration being 
 sufficient. Beid v. Whiteford, 1 M.R. 19. 
 
 ESTOPPEL. 
 
 1. Acceptance of patent. 
 
 Plaintiff claimed title through B. to 
 land which the City claimed to have been 
 owned by R. and by him dedicated as a 
 street. Previous to any patents B. had 
 owned south of a creek and R. north of 
 it. By the Dominion survey a strai^t 
 line^wafl run disregarding the sinuosities 
 of the creek, and both parties accepted 
 patents according to this survey. Pre- 
 vious to the patents B. owned the land in 
 question. Under the patents R. owned 
 it. B.'s patent was issued in March, 
 1875, R.'s in May, 1878. B. sold to 
 plaintiff in 1871 and got some papers 
 Which were afterwards given up and a new 
 deed executed in May, 1872. The des- 
 cription in this deed by mistake only 
 covered a portion of. the land. In 1873 
 or 1874 B. gave plaintiff a memorandum 
 showing what land should nave been con- 
 veyed, and on the 6th November, 1877, 
 executed a proper conveyance. On the 
 other hand R., assuming to own the land 
 in question prior to his patent, in August, 
 1874, registered a plan including this 
 property upon which it appeared as a 
 street. R. shortly after obtaining his 
 patent and in July, 1878, conveyed the 
 land to B. - 
 
 Held, 1. That B. and the plaintiff as his 
 assignee were not estopped by the patents 
 from setting up the true ownership. 
 Wright V. Winnipeg, 3 M.R. 349. 
 
 2. Business name — Change of, upon 
 change of ownership — Notice to creditors. 
 
 The defendant carried on business under 
 the style of Rowe & Co. She sold to her 
 husband (stipulating that the name of the 
 firm shoiild be changed) who continued 
 the business under the style of A. Rowe 
 & Co. Before, as well as after, the sale, 
 the husband was the actual manager of 
 the business N^nd, beyond the change of 
 name, there was nothing to indicate a 
 change of ownership. The defendant 
 had dealt with the plaintiffs and her 
 husband continued the accovmt, having 
 agreed to pay the liabilities of the old 
 business. 
 
 In an action for the price of goods 
 delivered by the plaintiffs upon the orders 
 of A. Rowe & Co., 
 
 Held, that the defendant was not liable. 
 
 The defendant's husband, after con- 
 tinuing tKe business for some time, sold 
 it to The W. T. P. & P. Co., and this 
 company agreed to assume and pay the 
 
381 
 
 ESTOPPEL. 
 
 382 
 
 liabilities of Rowe & Co. Pending this 
 action the plaintiffs recovered judgment 
 against the company for the amount here 
 sued for. 
 
 Held, that this judgment was evidence 
 of the election by the plaintiffs to look to 
 the company for the old debt. Richards 
 V. Rowe, 4 M.R. 112. 
 
 3. Failure to defend action on prior 
 note forged by same peiaon— Forgery. 
 
 A person whose indorsement on a 
 promissory note has been forged is not 
 estopped from denying his signature by 
 the fact that he had allowed judgment to 
 go against him by default in a previous 
 action by the same plaintiff on an indorse- 
 ment of his name on a prior promissory 
 note forged by the same person, althougji 
 the forger negotiated the second note 
 after such judgment. 
 
 Morris -v.Bethell, (1869) L.R, 5 C. P. 47, 
 followed. * 
 
 MacKenzie v. British Linen Co., (1881) 
 6 A.C. 82, distinguished. Simon v. 
 Sinclair, 17 M.R. 389. 
 
 4. By representation— Liera on land — 
 Consideration — Exemption of homsstead. 
 
 Action to recover balance due for a 
 threshing outfit sold and delivered by the 
 plaintiff company to defendants, Charles 
 Hornby and Ids wife, Ellen Hornby, under 
 a written agreement signed by defendants 
 wiiich provided that promissory notes 
 were to be given on approved security for 
 the amounts payable at the dates men- 
 tioned. When the machinery had been 
 delivered at the defendants' farm, the 
 plaintiffs' agent called there to take 
 settlement for it. Defendants then signed 
 the notes asked for and the agen^ demanded 
 a hen on the farm as security for the notes, 
 and, relying on the representations of both 
 defendants then made that the wife owned 
 the land, accepted a hen on the land for 
 the amount, signed by Mrs. Hornby in the 
 presence of her husband, and did not 
 insist, as he might have done, that the 
 husband should also sign it. It appeared 
 that the title to the land was then actually 
 in the husband, and had remained so ever 
 since. 
 
 Rpnewal notes had been given by the 
 defendants and the origiaal periods of 
 credit considerably extended, and during 
 this time the husband wrote several letters 
 in which the wife was spoken of as the 
 actual owner. . , 
 
 The chief contention at the trial was as 
 to whether the plaintiffs were entitled to 
 
 a lien on the land for the debt as against 
 the defendant Charles Hornby. 
 
 Held, 1. There was ample consideration 
 for the giving of the lien, as the plaintiffs 
 might have removed the machinery and 
 refused to carry out the transaction if it 
 had been refused. 
 
 2. The defendant Charles Hornby was 
 estopped by the representations he had 
 made, and subsequently repeated, from 
 denying that the land in question was his 
 wife's propertjr and from claiming it as 
 his own as against the plaintiffs. 
 
 Freeman v. Cooke, (1848) 2 Ex. 654, 
 followed. , 
 
 3. Defendant Hornby was also thereby 
 estopped from claiming it to be exempt 
 as land occupied by him from proceedings 
 under a registered judgment. 
 
 Judgment declaring that the lien 
 claimed formed a valid charge on the land 
 referred to for the amount of the plaintiffs' 
 claim and costs of suit. John AbeU Co. v. 
 Hornby, 15 M.R. 450. 
 
 6. Res judicata — Order of liability 
 among owners of parts of equity of redemp- 
 tion — Defective registration. 
 
 The usual mortgage decree with a 
 reference as to encumbrances was made. 
 Subsequently the Master made a report 
 finding that the plaintiff and certain of 
 the defendants had encumbrances upon 
 the whole land. ^ This was not appealed 
 from. Afterwards an order was made 
 referring it to the Master to inquire 
 whether as between themselves any one 
 or more of the defendants was or were 
 entitled to be relieved from the payment 
 of the plaintiff's mortgage, and to fix the 
 order of habihty. • 
 
 Held, that the defendants were estopped 
 from denying the priority of the plaintiff's 
 mortgage. 
 
 It is the duty of a vendor who has been 
 paid in full to discharge any encumbrances 
 on the land, and it is inmia.terial as 
 regards the appUcation of this principle 
 whether the encumbrance was created by 
 the vendor or resulted from the act of a 
 prior owner. If, therefore, the enciun- 
 brance extends to other lands, those, and 
 not the land conveyed, are the primary 
 fund for its payment. Pierce v. Canavan, 
 7 A. R. 194, foUowed. 
 
 If those other lands are subsequently 
 sold to another purchaser they remain in 
 his hands subject to the same liability. 
 
 The encumbrance — a mortgage, con- 
 tained the following clause: "ftovided 
 fiurther that the said mortgagee will 
 
383 
 
 ESTOPPEL BY JUDGMENT. 
 
 384 
 
 release any portion of the lands hereby- 
 mortgaged on receiving a sum on account 
 of the said principal money equivalent to, 
 or in the ratio of, fourteen hundred dollars 
 per acre for the portion so released." The 
 area of tie mortgaged premises was such 
 that, computed at $1,400 per acre, there 
 would be more than sufficient to pay off 
 the amount of the mortgage. 
 
 Held, that these circumstances would 
 not vary the result. Davies v. White, 16 
 Gr. 312, distinguished. ' 
 
 If the deed to the second purchaser be 
 registered before tl;iat to the first, the 
 second is entitled to have the first pur- 
 chaser's property first applied in satis- 
 faction of the mortgage. 
 
 Registration is ineffectual if the addition 
 or calling of the witness be not set forth 
 in the affidavit of execution. Renwick v. 
 Berryman, 3 M.R. 387. 
 
 See Amendment, 8. 
 
 — Arbi-ebation and Award, 8. 
 
 — Bills and Notes, VIII, 12. 
 
 — Chose in Action, 4. 
 
 — Compant, IV, 10, 14. 
 
 — County Court, II, 4. 
 
 — Crown Patent, 4, 5, 6. 
 
 — Dominion lands Act, 2. 
 
 — Duress, 1. 
 
 — Equitable Estoppel. 
 
 — Evidence, 7. 
 
 — Executors AND Adminstbators, 2. 
 
 — Expropriation op Land, 3. 
 
 — Fire Insurance, 4, 6. 
 
 — Fixtures, 3, 8. 
 — ■ .Garnishment, IV, 2. 
 
 — Husband and Wipe, IV, 2. ' 
 
 — Indemnity, 4. 
 
 — Indians, 1. . ' 
 
 — Landlord and Tenant, I, 6. 
 
 — Mortgagor AND Mortgagee, VI, 1, 
 
 — Munici:?ality,. I, 3; IV, 5; V, 1; 
 
 VIII, 7. 
 
 — Negligence, VII, 6. 
 
 — Pleading, VIII, 2. 
 
 — Practice, XVII, 2. 
 
 — Principal and Agent, IV. 
 
 — Real Property Limitation Act, 6. 
 
 — Sale op Goods, VI, 6. 
 
 — Sale op Land por Taxes, VI, 1. 
 
 — Vendor and Purchaser, V, 2. 
 
 — Winding-up, IV, 5. ' 
 
 ESTOPPEL IN PAIS. 
 
 See Chattel Mortgaoe, V, 1. 
 
 — Chose in Action, 3. 
 
 — Distress for Rent, 2. 
 
 — Homestead,-^. 
 
 — Municipality, I, 3. 
 
 ESTOPPEL BY JUDGMENT. 
 
 See Practice, II, 1. 
 ' — Vendor and Purchaser, V, 2. 
 
 EVIDENCE. 
 
 1. Admissions of judgment debtor — , 
 
 Garnishmenf — Assignment for creditors. 
 
 Interpleader issue to decide the title to 
 a sum of money claimed by the plaintiff 
 under an assignment from H. for the 
 benefit ' of his creditors as against' the 
 defendant, a judgment creditor of H., 
 who claimed the money under a garnishing 
 order attaching it in the hands of C. who 
 had paid it into court. 
 
 Held, (Dubuc, J., dissenting) that evi- 
 dence of the admissions of' the judgment 
 debtor was not admissible as against the 
 garnishing creditor either on account of 
 any privity between them^ or as evidence 
 of declarations made by a party against 
 his own interest (there being no proof of 
 his death) ; and that, as there was no other 
 ' evidence to show that the money in ques- 
 tion belonged to the estate of H., a verdict 
 should be entered for the defendant with 
 costs. Bertrand v. Heaman, 11 M.R. 205. 
 
 2. Admission of judgment debtor 
 not admissible as between his crecUtor 
 and a third party — Oamishment — County 
 Courts.Ad, B.S.M., c. 33, ss. 261, 266. 
 
 In an interpleader issue between a gar- 
 nishing creditor and a third party claiming 
 the attached money, evidence of an admis- 
 sion of the judgment debtor as to the right 
 to the money is not admissible in favor of 
 the third party. 
 
 Bertrand V. Heaman, (1896) 11 M.R. 205, 
 followed. 
 
 Where the garnishee has paid the 
 attached money into court, a tliird party 
 claiming it has no right, under section 261 
 or 266 of The County Courts Act, R.S.M., 
 c. 33, on the trial of an interpleader issue, 
 without giving some proper prima fade 
 evidence of his right to the money or debt, 
 to apply to set aside the garnishing order, 
 or to raise the question whether the debt 
 was properly attachable under the Act. 
 
 The claimant was granted leave to have 
 a new trial of the issue on payment of 
 costs. Marshall v. May, 12 M.R. 381. 
 
385 
 
 EVIDENCE. 
 
 386 
 
 3. Aflidavits, when allowed to be 
 read — Real-Property Act — Appeal — Docur 
 mentary Evidence Act — Deed of Municv- 
 pality— Absence of witness — New trial. 
 
 An appeal will lie from a verdict ren- 
 dered upon the trial of an issue under the 
 provisions of the Real Property Act, 1889. 
 
 2. Upon Buch an appeal, affidavits can- 
 not be read, when they: are not mentioned 
 in the notice of appeal, or of the intention 
 to read which notice has not been given 
 until two days before the argument of the 
 motion, unless satisfactory reasons are 
 assigned why an earlier notice was not 
 given. 
 
 3. A conveyance executed by a munici- 
 pality is not a pubhc document within the 
 meaning of the Documentary Evidence 
 Act, 8 & 9 Vic, c. 113, s. 1. 
 
 4. The sufficiency of certain oral testi- 
 mony in proof of corporate seal discussed. 
 
 5. A party who finds himself at the trial 
 without some important witness should 
 ask for an adjoxirnment of the trial instead 
 of proceeding with the trial. If he pro- 
 ceeds, a new trial will not afterwards be 
 granted. Morice v. Baird, 6 M.R. 241. 
 
 4. Breach of promise of marriage — 
 
 32 & 33 Vic, {Imp.), c. 68, s. 2— TA« Mani- 
 toba Eiridmce Act, R.S.M., 1902, c. 57. 
 - The Imperial Statute 32 & 33 Vic, c 68, 
 s. 2, requiring the plaintiff's evidence in 
 an action for breach of promise of mar- 
 'riage to be, corroborated by some other 
 materia^ evidence in support of such 
 promise, is in force in Manitoba, not being 
 either expressly or by implication repealed 
 by The Manitoba Evidence Act, 67 Vic, 
 c. 11, now chapter 57 of the Revised 
 Statutes of Manitoba, 1902. Cockerill v. 
 Harrison, 14 M.R. 366. 
 
 5. Character of, plaintiff — Admissi- 
 bility of evidence as to, in action for 
 malicious prosecution. 
 
 The plaintiff, in an action for false 
 imprisonment and maHcious prosecution 
 - brought against defendant, a copstable, 
 for arresting him for obscene language, 
 put in evidence a prior conviction of him- 
 self and wife for keeping a disorderly 
 house, which had been quashed on appeal, 
 in order to show want of reasonable and 
 probable cause for the defendant's prose- 
 cution of the plaintiff. Thereupon the 
 defendant cross-examined the plaintiff, 
 and gave evidence as to the plaintiff's 
 general bad character. 
 
 Held, that such evidence was impropi 
 erly received. Fitch v. Murray, T. W., 
 74. 
 
 6. Depositions taken on a prelimi- 
 nary investigation before a magistrate 
 
 — Criminal Code, ss. 590 and 687. 
 
 Depositions of a witness since dead 
 taken on a preliminary investigation 
 before a Justice of the Peace of a charge 
 against a prisoner will be admissible, 
 under section 687 of The Criminal Code, 
 at his subsequent trial, if they purport to 
 be signed by the Justice by or before 
 whom they purport to have been taken,, 
 provided it be proved that they were 
 taken in the presence of the accused and 
 that he or his counsel had a full oppor- 
 tmiity of cross-examining the witness, 
 notwithstanding that the signature of the 
 witness was written with only one of two - 
 Christian names given in the caption, and 
 that the Justice omitted to put the letters 
 "J.P." after his signature, as in the Form 
 S appended to The Criminal Code. 
 
 On the preliminary investigatipn before 
 a Justice of the Peace of a charge against 
 the accused, the depositions of several 
 witnesses were taken on March 25th, and- 
 committed to writing by the Justice under 
 the heading "Canada, Province of Mani- 
 toba, Western Judicial District." "The 
 depositions of, Matthew Hamilton of, etc., 
 and others, of , taken on this 
 
 25th day of March, etc., at Brandon, etc., 
 before -the undersigned, one of Her 
 Majesty's Justices of the Peace for the 
 said Province in the presence and hear- 
 ing of Alexander Hamilton who stands 
 charged," etc. The first three pages of 
 the record made contained the evidence 
 of Matthew Hamilton and another wit- 
 ness and concluded as follows: "Prisoner 
 is remanded until Thursday, March 29th, 
 at 10.30," with the date, 25th March, 
 1898, and the signature of the Justice. 
 
 On 29th March following, Martha 
 Louise Walker, since deceased, whose 
 name did not appear previously in the 
 record,^ appeared to have given her evi- 
 dence which the Justice took down on 
 twenty-two other sheets of paper, be- 
 ginning simply "Martha Louise Walker 
 sworn saith." This was merely annexed 
 to the first three sheets, and concluded 
 with' the signatures of "Louisa Walker" 
 and "K. Campbell, P.M." 
 
 Held, that the latter deposition could 
 not be read under section 687 of The 
 Criminal- Code in' evidence against the 
 accused at his trial, as it did not purport 
 
387 
 
 EVIDENCE. 
 
 388 
 
 to be a deposition taken by a Justice of 
 the Peace on the charge 'against the 
 accused, and therefore it covdd not be 
 said that it purported to be signed by the 
 Justice by or before whom it purported 
 to have been taken. 
 
 Semble, if it had been proved that sec- 
 tion 590 of the Code had been compUed 
 with by reading over the deposition to 
 the witness and by the witness and magis- 
 trate signing in the' presence of the 
 acpused, all three being present together, 
 and in other respects, the deposition 
 might have been admissible in eyidence 
 independently of section 687 of the Code. 
 
 Although the deposition held inadmis- 
 sible was taken on a charge on which the 
 accused was acquitted, it contained very 
 material testimony bearing on the charge 
 on which he was convicted which might 
 have influenced the jury, and the Court 
 ordered that the conviction should be set 
 aside and a new trial granted. Reg. v. 
 Hamilton, 12 M.R. 354. 
 
 7. Estoppel — Promissory note made 
 payable to B. on sale made by A. of A.'s 
 
 One Kirkpatrick, having previously 
 bought a threshiAg outfit from the plain- 
 tiffs, upon which he still owed them a large 
 amount, made a sale of it to the defendant. 
 As a matter of convenience this sale was 
 carried out -by the .,def endant signing an 
 order for the purchase and making a note 
 for the price- in favor of the plaidtiffs. 
 The defendant resisted payment of the 
 note on the ground that the consideration 
 for it had wholly or partly failed, and that - 
 he had not got all the goods ordered or an 
 engine of the quality ordered, and cos- 
 tended that the documents relied on were 
 conclusive evidence that the sale had been 
 made by the plaintiffs and that they were 
 estopped -from denying it. 
 
 Held, that the plaintiffs were not 
 estopped from showing that it was Kirk- 
 patrick who "had made the sale and that, 
 as" the evidence est^ablished this, defendant 
 had no remedy against the plaintiffs for 
 any defects in the threshing outfit and 
 must pay the amount of the note. Case 
 Threshing Machine Co. v. Wermiger, 17 
 M.R. 52. 
 
 8. Ezamination of party, use of at 
 trial. 
 
 Held, that the examination of a party 
 to an action, taken for the purpose of dis- 
 covery, may be used at the trial to con- 
 tradict the same party, but cannot be put 
 
 in evidence as an admission. Arnold v- 
 Caldwell, 1 M.R. 155. 
 
 9. Further evidence, leave to give 
 
 — Affidavit — Judgment — Sale of land — ■ 
 Queen's Bench Act, 1895, Bute 803^ Parties _ 
 — Postponement for, further evidence. 
 
 A judgment debtor served, under Rule 
 803 of The Queen's Bench Act, 1895, with 
 a notice of motion calling upon him to 
 show cause why the land alleged to be 
 bound by the registration of a certificate 
 of judgment against him should not be 
 sold to satisfy the judgment; has a right to 
 be heard on the motion, and to object to 
 the suflSciency of the materials filed in 
 support of it, although'he may have trans- 
 ferred all his interest in the land to a third 
 party for the purpose of defeating credi- 
 tors, or otherwise. 
 
 The FuU Court wiU not grant & posl- 
 jponement for the purpose of enabling the 
 applicant to procure fmther evidence 
 which he might have got at an earUer 
 stage of the proceedings. 
 
 The evidence filed in support of the 
 motion for the sale of the land in question 
 consisted of an affidavit made by a clerk 
 in the plaintiffs' employment that they 
 had recovered a judgment 'against the 
 defendant in a County Court, and caused 
 a certifica,te of said judgment in the 
 proper form required by the statute to be 
 issued, and that the same was duly regis- 
 tered in the Land Titles Office for the dis- 
 trict in which the land was situated, but 
 not showing his means of Knowledge of 
 such facts; and of a post-card, dated at 
 "L. T. O., Morden," containing a mem- 
 orandum to the effect that a certificate of 
 judgment for $110.20 against Robert 
 Warener, in Belmont County Court, yas 
 received and registered the 24th of July, 
 1896, in suit of Massey- Harris Co. v. 
 Robert Warener, but not stating where the 
 same was registered. The memorandum 
 had the words "District Registrar" at the 
 foot, without any signature or name. 
 
 Held, that such evidence was not suf- 
 ficient to warrant the making of an order 
 for sale on such a motion. Massey- Harris 
 Co. V. Warener, 12 M.R. 48. 
 
 10. Further evidence, leave to give 
 
 — Master's office — Opening up reference 
 after same cldsed — Admissibility of further 
 evidence — Surprise — Discovery of new evi- 
 dence — Diligence — Corroborative evidence — 
 New trial. 
 
 The plaintiffs filed a bill to foreclose a 
 mortgage, by which interest was reserved 
 
389 
 
 EVIDENCE. 
 
 390 
 
 at the rate of nine per cent, per annum. 
 The defendants allowed the bill to be 
 taken pro confesso, but attended on the 
 taking of accounts in the Master's office. 
 The mortgage was long overdue. By the 
 Master's report, interest was allowed at 
 the rate of nine per cent., after the princi- 
 pal money became due. The defendants 
 appealed, on the ground that the plain- 
 tiffs were entitled to six per cent, only, 
 after the time when the principal money 
 became payable, and the appeal was 
 allowed. 
 
 The plaintiffs then presented a petition 
 to have tl\e decree vacated and for leave 
 to amend their bill, on the grounds of 
 surprise and discovery of new evidence. 
 After the appeal was disposed of, they dis- 
 covered, among the papers in their solici- 
 tor's office, a letter dated October 26th, 
 1888, signed by defendant, J. G. McL. (the 
 mortgagor), in which he agreed to pay 
 interest on his mortgage "at nine per cent, 
 per annum until the 21st October next, or 
 so long as you allow the same to stand." 
 The surprise was claimed to arise out of 
 certain interviews in 1888 with defendant's 
 solicitor, in which he asked that the inter- 
 est be reduced to eight per cent., and the 
 summary manner in which the matter was 
 disposed of in the Master's office. 
 
 Held, that, after the Master has closed 
 the hearing on a reference, he should not 
 op^ it or receive any further evidence, 
 except under such a state of facts as would 
 warrant a new trial at law being granted, 
 and that no such case was made. 
 
 WaMell V. Smith, 3 Ch. Ch. 412, fol- 
 lowed. 
 
 Held, also, that it is not sufficient to 
 show that the new evidence is material. 
 Evidence of materiality must be accom- 
 panied by evidence of previous diUgenoe. 
 
 Held, also, that as some evidence was 
 given before the Master in support of an 
 agreement to pay the higher rate of inter- 
 est, the letter was only corroborative, and 
 discovery of merely corroborative evidence 
 is no ground for a new trial. 
 
 Held, also, that the additional interest 
 claimed could not be a charge on the land, 
 because the letter was signedby-J. G. McL. 
 only, and his co-defendant was the owner 
 of the equity of redemption, and it was not 
 shown that she had notice of the letter, or 
 that J. G. McL. was her agent. Freehold 
 Loan and Savings' Co. v. McLean, 8 M.R. 
 334. 
 
 11. Identity of gia,ntat— Real Prop- 
 erty Act — Sale of land. 
 
 Issue under the Real Property Act, as to 
 whether the plaintiff apquired by convey- 
 ance from the patentee of certain lands an 
 estate in fee simple therein as against the 
 defendants. At the trial the defendant's 
 counsel, at the request of plaintiff's coun- 
 sel, produced the letters patent by which, 
 after the recital that "B. V., son of M. Y., 
 in his lifetime of the Parish of St. Francois 
 Xavier and Bale St. Paul, in the Province 
 of Manitoba," had applied for a grant of 
 the lands, and had been found entitled 
 thereto, and that B. V. had since died 
 intestate leaving him surviving /'M. V., 
 of the said Parish of St. Francois Xavier 
 and Bale St. Paul, his father, and sole 
 heir-at-law," the lands were granted M, V. 
 in fee simple. The plaintiff then produced 
 an instrument purporting to be a deed of 
 conveyance of the lands m fee by "M. V., 
 of Edmonton in the North-West Terri- 
 tories of Canada, farmer, father and sole 
 heir-at-law of B. V., of the Parish of St. 
 Francois Xavier, in the Province of Mani- 
 toba, deceased," to the plaintiff. The 
 signature was that of a marksman. The 
 attestation clause stated it, was read over 
 and explained, and then followed the 
 signatures of two witnesses. 
 
 Tbe first witness gave evidence at the 
 trial, and stated that he was in the North- 
 West with G., the husband of the plaintiff. 
 That at G.'s request he went for M. V. to 
 the place where he lived and brought him 
 to Edmonton. That M. V. spoke French 
 and Cree, but not English. That M. V. 
 did not even know that he owned the land. 
 That it was the first time he saw M. V., 
 and that he did not know that he formerly 
 Uved at St. Francois Xavier. That the 
 deed was read over in English, and G. 
 explained it to M. V. in French. Another 
 witness stated that he lived at St. Francois 
 Xavier. That he had known one B. V. 
 but did not know whether he was alive or 
 dead. That he did not know the father i 
 of this B. V.., and that he knew one M. V., 
 who had formerly lived at St. Francois 
 Xavier, and afterwards at Edmonton. 
 No evidence was offered for the defence. 
 
 Held, that the evidence was insufficient 
 to estabUsh that the plaintiff's grantor and 
 the patentee of the land were the same 
 person. Grani v. Hunter, 7 M.R. 243. 
 
 12. Issue of grant of land by 
 
 the Clown-^Production of copy — Lord 
 Brougharh's Evidence Act, 1851 — Manitoba 
 Evidence Act, R.S.M. 1902, c. 57, s. 21 — 
 Pleading — Staiement of defence — General 
 denial — King's Bench Act, Ride 290. 
 
391 
 
 EVIDENCE. 
 
 392 
 
 The plaintiff, ih order to succeed in this 
 action, had to prove the issue of a patent 
 from the Crown for the land in question. 
 He produced what purported to be a copy 
 of such patent, but he had not given" 
 notice of his intention to use such copy as 
 required by section 21 of The Manitoba 
 Evidence Act, R.S.M. 1902, c. 57. 
 
 Held, ' that, under that Act, such copy 
 could not be received in evidence, and that, 
 it could not be received under Lord 
 Brougham's Evidence Act, 1851, which, 
 by its terms, can only be applied when no 
 other statute exists which renders the con- 
 tents- of such a document provable by 
 means of a copy. n^ 
 
 A general denial of all the allegations in 
 the statement of claim does not comply 
 with Rule 290 of the King's Bench Act, 
 which requires the defendant in his state- 
 ment of defence to deny the plaintiff's 
 allegations specifically wherever possible, 
 and such a pleading would be struck out 
 on application of the plaintiff. If not 
 moved against, however, it will be treated 
 as good at the trial. McPherson v. 
 Edwards, 14 W.L.R. 172. 
 
 See next case. 
 
 13. Issue of grant of land by the 
 Crown — Setting aside noh-suit — Re-open- 
 ing trial — Leave to supply evidence — 
 Amendment — Costs — New trial. 
 
 On appeal from the non-suit entered at 
 the trial of the case last above noted, the 
 Court of Appeal ordered" that, upon the 
 plaintiff paying the costs of the trial 
 within two weeks, the non-suit should be 
 set aside, and a new trial had with leave 
 to the parties to amend their pleadings 
 and to the plaintiff to give proper evidence 
 of the issue of the Crown patent, but that, 
 in default of payment of such costs by the 
 plaintiff, the appeal -should be dismissed 
 ,with costs. McPherson v. Edwards, 16 
 W.L.R. 648. 
 
 14. Judicial notice of Orders-in- 
 Councll. 
 
 Prisoner was charged with committing 
 forgery in the State of Minnesota. 
 
 ffeW, '1. Upon the evidence, that a 
 prima facie case had been made out. 
 
 2. Judicial notice must be taken of 
 Orders-in-Council bound up with the 
 Dominion Statutes, in pursuance of 38 
 Vic, c. 1. Re G. A. Stanbro., 2. M.R. 1. 
 
 15. Ownership of goods, to prove— 
 
 Action for money had and received — Breach 
 
 of warranty of title-^Cosls — Ohjeclions not 
 taken at trial. 
 
 In an action for breach of warranty of 
 title it is necessary to prove at the trial 
 that the title was not as warranted. 
 
 Defendants, under warrant against the 
 goods of one Mitchell under the distress 
 clause in a mortgage executed by him, 
 caused the animals in question to be 
 offered for sale by pnbUc auction, when 
 the plaintiff purchased. Afterwards the ^ 
 animals were taken away by one Black 
 who claimed they were his, and the 
 plaintiff brought a replevin suit against 
 Black to Tecover them, in which he failed. 
 
 At the trial of the present action defend- ' 
 ants' counsel admitted the fact that judg- 
 ment in the replevin suit for the same 
 animals had been entered by Black. 
 
 Held,. that this was not sufficient evi- 
 dence that the animals had not belonged 
 to the mortgagor at the time of sale. 
 
 No costs of the appeal to this Court, 
 although successful, were allowed because 
 the objection as to want of evidence had 
 not been taken at the trial. Koester v. 
 Hamilton Provident & Loan Society, 10 
 M.R.374. 
 
 16. Parol agreement collateral to 
 written agreement— I/ien. 
 
 1. A workman employed to cut trees into 
 cordwood has not at common law a lien for 
 his wages. 
 
 2. If the workman, however, contracts 
 to' haul as well as cut the wood, he may 
 have a hen ior the carriage. 
 
 3. A common law Uen will be lost by the 
 sale of the article. 
 
 4. A. made an^agreement in writing with 
 B. that he. A., would cut certain trees into 
 cordwood and would haul it to, and deliver 
 it at, S. station; and B agreed to pay certain 
 prices, paying 80 per cent, upon delivery 
 at the station and the balance upon the 
 completion of the work. Contempor- 
 aneously the parties verbally agreed that 
 if the contract price were not paid upon 
 the completion of the work the wood was 
 to become the property of A. and that he 
 was to be at hberty to sell it. ^ 
 
 Held, that evidence of this verbal agree- 
 ment was admissible, even in an action 
 to w-hich third persons were parties. Mc- 
 Millan V. Byers, 3 M.R. 361. 
 
 Reversed, 4 M.R. 76. 
 Restored, 15 S.C.R. 194. 
 
 17. Parol agreement collateral to 
 written contr&ct— Representation or con- 
 
393 
 
 EVIDENCE. 
 
 394 
 
 dition, when treated as ground for rescission, 
 and when as a warranty only. 
 
 1. When a verbal agreement has been 
 made for the sale of horses or other 
 chattels, and the purchasers afterwards 
 sign a lien note securing payment with 
 the usual provisions of ^uch a note, evi- ' 
 dence may be given of representations or 
 conditions of the sale or to prove a war- 
 ranty when it appears that it was not 
 intended to include in the lien note all the 
 ternis of the agreement between the 
 parties. 
 
 De Lasalle v. Cfuildford, [1901] 2 K. B. 
 215, and Erskine v. Adeane, (1873) L. R. 
 8 Ch. 756, foljowed. 
 
 2. When the Jiurchaser of a chattel 
 bought with a Warranty keeps it for a 
 considerable time and .makes a payment 
 on account, the contract must be treated 
 as executed, and any representation or 
 condition as to the quality of the goods' 
 must then be regarded only as a warranty, 
 for the breach of which compensation 
 must be sought in damages and not by 
 rescission of the contract. McKenzie v. 
 McMullen, 16 M.R. 11. 
 
 18. Paiol agreement conflicting with 
 written statement — Brokers bo'iight notes. 
 
 The plaintiff, wishing to speculate in 
 shares on the Montreal Stock Exchange, 
 employed defendants to purchase certain 
 shares there for him on margin. He knew 
 that the defendants would employ a broker 
 in Montreal as their agent, and that the 
 latter would make the actual "purchases, 
 advance the balance of the money re- 
 quired and hold the shares in his own name 
 as security. 
 
 The plaintiff paid the defendants certain 
 sums as margins on the purchases made, 
 and afterwards brought an action against 
 defendants to recover these sums as 
 moneys paid on a consideration which had 
 wholly failed, and relied upon the terms 
 of the boujght notes received from defend- 
 ants, commencing: "We have this day 
 bought for your account * * * 
 share* * * * stock," as .evidence that 
 the defendants should have purchased and 
 held the shares in their own names. 
 
 Held, that evidence of the true agree- 
 ment between the parties .could be given 
 notwithstanding the language of the 
 bought notes, and that the plaintiff could 
 not recover, although the defendants had 
 not themselves acquired any of such 
 shares. Jackson v. Allan, 11 M.R. 36. 
 
 19. Parol agreement superseded by 
 written contract — Implied obligation — 
 Expressum fadt cessare taciturn, — Parol 
 evidence to contradict written document- 
 Formal release of all claims of plaintiff. 
 
 1. Evidence should not be allowed to 
 prove the terms of a verbal agreement 
 between the parties, when they subse- 
 quently entered into a written agreement 
 relating to the same subject matter, 
 although the latter has been lost and it 
 caimot be proved by a copy; and, when 
 the' plaintiff claiming under the verbal 
 agreement cannot remember the contents 
 of the written agreement, and the evidence 
 on the part -of the defendant as to such 
 contents is not credited by . the trial 
 Judge, the result is that no agreement is 
 proved, and the plaintiff must fail. 
 
 2. The presumption of the law that two 
 parties making a purchase of land for' 
 their joint benefit should' contribute 
 equally to the payments required should 
 not be applied in a case where they have 
 reduced their agreement to writing con- 
 taining the terms on which they purchased 
 together, even when those terms cannot 
 be shown in consequence of the writing 
 having been lost. In such a case .the 
 maxim "expressum fadt cessare tadtum" 
 applies. 
 
 Merrill v. Frame, (1812) 4 Taunt. 329, 
 and Mathew v. Blackmore, (1857) 1 H. & N. 
 762, followed. 
 
 The plaintiff's assignor had given the 
 defendant, long after the accruing of the 
 latter's alleged debt sued for, a release to 
 the following effect: 
 
 "I agree to release T. W. MiUer from 
 aU agreements made before this date 
 between himseK and me and acknowledge 
 this as a receipt in full for all moneys due 
 me to date." 
 
 Held, that evidence contradicting the 
 meaning of this writing, and Umiting its 
 appUcation to a particular set of items so 
 as to exclude the debt sued for ($2,000), 
 should not have been received at the trial, 
 in the absence, at all events, of any proof 
 of fraud, mistake or some other invali- 
 dating influence present in the transac- 
 tion. 
 
 Jackson v. Drake, (1906) 37 S.C.R. 316, 
 followed. Wicks v. Miller, 21 M.R. 534. 
 
 20. Parol evidence to contradict 
 deed — Statute of Frauds — Executed con- 
 tract. 
 
 The Statute of Frauds does not apply 
 to a contract for the sale of lands after 
 execution of, the conveyance. 
 
395 
 
 EVIDENCE. 
 
 396 
 
 The plaintiff sold land to the husband 
 of the defendant who sold to the defend- 
 ant. The agreements were not in writing. 
 For convenience the plaintiff conveyed 
 direct to the defendaht. Upon a biU filed 
 for a vendor's lien — 
 
 Held, that, notwithstanding the statute, 
 the defendant eould show by parol a pur- 
 chase from her husband, and to this extent 
 contradict the deed. Brown v. Harrower, 
 3 M.E. 441. 
 
 21. Parol evidence to vary written 
 contract — Promissory note — Indorsement 
 — Bills ofExcfumge Act, s. 55, s-s. 2 — Parol 
 agreement contemporaneous with written'* 
 one. 
 
 Parol' evidence wUl notxbe received to 
 show that a person who indorsed a prom- 
 issory note to another for valuable con- 
 sideration stipulated at the time that he 
 was not to be Uable on the indorsement, 
 as that would be contradicting the con- 
 tract , which such indorsement, by sub- 
 section 2 of section 55 of The Bills of 
 Exchange Act, 1890, imports. 
 
 Abrey v. Crux, (1869^ L. R. 5 C. P. 37; 
 Henry v. Smith, (1895) 39 Sol. J. 559, 
 and New London Credit Syndicate y. Neale, 
 [1898] 2 Q. B. 487, foUowed. 
 
 Pike V. Street, (1828) Moo. & M. 226, 
 dissented frqm. Smith v. Squires, 13 M.B,. 
 360. 
 
 22. Parol evidence to vary written 
 contract — Bills of Exchange Act — Leave to 
 appear — Discretion. 
 
 Parol evidepce of a verbal agreement, 
 made at the time of signing a promissory 
 note, that the note should not be payable 
 at maturity, is not admissible; and more 
 especially if there be a written agreement, 
 made at ithe same time, inconsistent with 
 the alleged verbal agreement. Such evi- 
 dence could only be given on the ground 
 of fraud or mistake. 
 
 A 'defendant should be admitted to 
 defend in an action under The Bills of 
 Exchange Act where there is a shadow of 
 reason to believe that he has a defence. 
 Where evidence of the alleged defence 
 would be inadmissible, no appearance 
 should be permitted. Imperial Bank v. 
 Brydon, 2 M.R. 117. 
 
 23. Reply, evidence in — Contributory 
 
 A plaintiff is not allowed in presenting 
 evidence to divide his case; either by 
 omitting to give evidence originally upon 
 a material point and offering such evi- 
 
 dence in reply; or by giving some evidence 
 upon a^particular point in his original case 
 and offering other evidence upon the same 
 point in reply. 
 
 In an action for damages sustained in 
 alighting from a railway train, the defen- 
 dants gave evidence that the train was in 
 motion when the plaintiff was alighting. 
 The plaintiff, in reply, desired to contra- 
 dict this evidence. There was a dispute 
 as to whether the plaintiff's witnesses had 
 touched upon the point in making the 
 case. 
 
 Held, that the evidence was properly 
 excluded because the fact that the train 
 had stopped was a necessary part of the 
 plaintiff s case, and if omitted could not 
 be given in reply. Har9y v. C. P. B., 
 3 M.R. 266. 
 
 24. Trial — Motion to discharge jury after 
 evidence given which the trial Judge had 
 ruled to be inadmissible. 
 
 Although, a witness at a trial before a 
 jury volunteers evidence which the trial 
 Judge has already ruled to be inadmissible 
 and which might have weight with the 
 jury in arriving at a verdict, yet the Judge 
 should not for that reason imn\ediately 
 discharge the jury and impanel a new jury 
 to try the case. Bex v. Grobb, 17 M .R. 191 . 
 
 26. Weight- of evidence — Denial by 
 answer — Two witnesses. 
 
 The rule as to requiring more than one 
 witness to overcome a denial in the 
 defendant's answer discussed. Cowan v. 
 BrUtm, 3, M.R. 175. 
 
 26. Will, to prove — Evidence of ex- 
 ecutor's tale in ejectment-^Probate sufficient 
 evidence of will — Evidence -of identity — 
 Devolution of Estates Act. 
 
 The Devolution of Estates Act, R.S.M. 
 c. 45, s. 21, taken together with The 
 Manitoba Wills Act, R.S.M. c. 150, s. 20, 
 and The Surrogate Courts Act, R.S.M. 
 c. 37, ss. 17, 18, 20 and 22, have made 
 such a. change in the old law that the pro- 
 bate of a will is now the necessary and only 
 admissible evidence of the title of the 
 executors claiming in ejectment, and it is 
 no longer necessary to produce or prove 
 the will itself as formerly. 
 
 As to the identity of the plaintiffs with 
 the executors named in the probate, and 
 the identity of the patentee with the 
 testator, the evidence of his daughter and 
 her husband taken on commission, al- 
 though very slight, was held sufficient 
 when taken along with the identity of 
 
397 
 
 EVIDENCE. 
 
 398 
 
 the names. Simpson v. Stewart, 10 M.R. 
 176. 
 
 27. Witness refusinir to answer 
 questions on cross-examination — 
 
 Onus of proof — Stock-gambling transaction. 
 
 Plaintiff's claim was , for a balance 
 alleged to be due on a purchase of shares 
 for defendant. Defendant swore at the 
 trial that the transaction was a gambling ' 
 one and that it was understood between 
 him and plaintiff that no shares were, in 
 fact, to be purchased. 
 
 To prove that the shares had actually 
 been bought, the plaintiff put in the evi- 
 dence of a Halifax broker, taken on 
 cormmssion, that he had purchased the 
 shares on the plaintiff's order. On cross- 
 examination, however, he had refused to 
 sa,y from whom he had bought them, 
 without giving any reason for the refusal. 
 
 Held, that, on account of such refusal, 
 no weight should be given to this evi- 
 dence, and that the defendant was 
 entitled to a verdict. Hickev v. Legreslev, 
 4 W.L.R. 46. 
 
 28. Fraud — Misrepresentation — Rescis- 
 sion of contract — Appeal from Jvdge's 
 finding of facts. 
 
 Defendant H. sold land to C. at $10 an 
 acre; defendant C. sold to plaintiff at 
 $30, representing to him that he was 
 acting as agent for the owner; plaintiff 
 purchased, beheving defendant C. to be 
 an agent merely. Plaintiff would have 
 made further enquiries before purchasing 
 had he known that C. was the real owner. 
 C. procured H. to convey direct to plain- 
 tiff. The consideration expressed was 
 the higher price. H. was no party to the 
 fraud. 
 
 Held, (reversing the decision of Tatlok, 
 J., 1 M.R. 17), that to the rescission of a 
 contract "there must be a false repre- 
 sentation knowingly made, that is, a 
 conciurence of fraudulent intent and false 
 representation"; t^at, the contract having 
 been entered into deliberately, the plain- 
 tiff's statements should have been cor- 
 roborated; and where the evidence is con- 
 tradictory the Court ought to have been 
 satisfied that the plaintiff's account is 
 strictly true, and that the evidence in the 
 present case was insufficient, and the bill 
 must be dismissed with costs. Hutchinson 
 V. Calder, 1 M.R. 46. 
 
 See Alimony. 
 
 — Appeal fhom Ordbr, 4. 
 
 — Arbitration and Awabd, 3, 8. 
 
 See AiTACHMBNT OP Goods, 4. 
 
 — ■ Attachment of the Person, 3. 
 
 — Bills and Notes, I, 2; X, 5. 
 
 — Breach of Promise op Marriage. 
 
 — Capias, 3. 
 
 — Chattel Mortgage, II, 2. 
 
 — Cheques. 
 
 — Company, IV, 11. 
 
 — Conditional Sale, 3. 
 
 — Conspiracy in Restraint op Trade, 
 
 2. 
 
 — Constitutional Law, 2, 9. 
 
 — Contempt op Court, 4. 
 
 — Contract, VI, 2; VII, 1; IX, 2, 3; 
 
 XV, 3. 
 
 — Conviction, 1. 
 
 — Costs, I, 5; XI, 2. 
 
 — Criminal Law, II, 1; III, 1; VI; XV, 
 
 1, 2; XVII, 9, 11, 15, 16. 
 
 — Crown Patent, 6. 
 
 — Distress for Rent, 3. 
 
 — Ejectment, 1. 
 
 — Election Petition, LV, 2, 3, 5; IX, 1; 
 
 X, 1, 6. 
 
 — Equitable Assignment, 2. 
 
 — Examination op Judgment Debtor, 
 
 5, 6. 
 
 — Extradition, 1, 4, 5, 8. 
 
 — Fi. Pa. Goods, 4. , 
 
 — Foreign Court, 2. 
 
 — Foreign Judgment, 1. 
 
 — Fraud, 1. 
 
 — Fraudulent Conveyance, 6, 11, 16, 
 
 19. 
 
 — Fraudulent Judgment, 2, 3, 4. 
 
 — Fraudulent Preference, I, 1. 
 
 — Husband and Wife, I, 4, 5; III, 2; 
 
 rv, 3. 
 
 — Injtoction, I, 1, 9; IV, 3. 
 
 — Intebplbadbr, III. 
 
 — Jury Trial, I, 9. 
 
 — Libel, 5, 6. 
 
 — Liquor License Act, 4, 5, 6, 14. 
 
 — Mabriep Woman, 2. 
 
 ■ — Master and Servant; II, IV, 4. 
 
 — Master's Office, Practice in, 2. 
 
 — Mechanic's lien. III, 2. 
 
 — Misrepresentation IV, 2. 
 
 — Money Lender's Act. 
 
 — MuNiciPALrTY, II, 2, 3; IV, 7; VII, 4. 
 
 — Mutual Insurance, 2. 
 
 — Negligence, V, 2, 4; VII, 2. 
 
 — New Trial, 1, 3, 4. 
 
 — Nul Tiel Record, 1. 
 
 — Partnership, 2. 
 
 — Pleading, II, 2; VIII, 2; XL 2. 
 
 — Practice XIV, 1 ; XVI, 9 ; XXVIII, 20. 
 
 — Principal and Agent, I, 1; II, F; 
 
 IV; V, 2, 3. 
 
 — Production of Documents, 14. 
 
 — Prohibition, I, 8. "" 
 
399 
 
 EyiDENCE BY AFFIDAVIT. 
 
 400 
 
 See Quo Wabeanto, 1. 
 .—.Railways, II, 1; III, 1, 2; V, 4; 
 , VII, 2. 
 
 — Eeal Pboperty Act, I, 7; II, 2; IV, 
 
 1; V, 3. . . > . . 
 
 — Beal Pboperty Limitation Act, 4, 6. 
 
 — Rectification of Deed, 1. 
 
 — Restraint of Trade. 
 
 — Sale op Goods, II, 1. 
 
 — Sale op Land fob Taxes, III, 2: VI, 
 
 1; IX, 3. - 
 
 — Secubity toB Costs-, VIII, 2. 
 
 — Specific Pebformance. 
 
 ^— Statute of Frauds, 3, 4, 7. 
 
 — Stoppage in Transitu. 
 
 — Title to Land, 3, 4. 
 
 — Trade Unions, 1. 
 
 — Trespass and Trover, 1. 
 — - Trial. 
 
 -^ Vendor and Purchaser, VI, 10. 
 
 — Warranty, 3. 
 
 — Weights and Measures Act, 1. 
 
 — Will, III, 4. 
 
 — Winding-up, I, 2, 3, 4; IV, 1. ' 
 
 EVIDENCE BY AFFIDAVIT. 
 
 See Railways, V, 3; VIII, 3. 
 
 EVIDENCE— CORROBORATION OF 
 
 See Administration, 7. 
 
 — Breach of Promise of Marriage. 
 
 — Contract, VI, 1. 
 
 covena^tts, 8. 
 
 — Evidence, 10. 
 
 — Extradition, 8. 
 
 — Fbaurulbnt Judgment, 4. 
 
 — Husband and Wife, I, 4,- 5; III, 2; 
 
 IV, 3. 
 
 — Principal and Agent, V, 2. 
 
 EVIDENCE OF EXPERTS. 
 
 See Will. 
 
 EVIDENCE ON COMMISSION. 
 
 1. Deposition?, manner of takii^ — 
 
 Commission — Interrogatories — Suppression 
 — Waiver. - 
 
 Under an order to take evidence on 
 commission the -evidence can only be-^ 
 
 taken on interrogatories unless otherwise 
 ordered. ^ 
 
 Under such an order a commission was 
 issued to take the evidence viva voce. 
 
 Held, 1. That the commission was irreg- 
 ular and the depositions were suppressed. 
 
 2. That the objection had not been 
 waived by cross-examining the witnesses 
 after raising the objection and subject to 
 it; nor by omitting to object after the 
 commission had been informally returned, 
 upon an application to send it Back for a 
 proper retiirn, or upon A further apphca- 
 tion to extend the time for the return of 
 the commission. 
 
 3. Per Bain, J. — Waiver as a general 
 rule is doing something- after an irregu- 
 larity committed, when the irregularity 
 might have been corrected before such act 
 was done. It may consist, too, of lying 
 by, and allowing the other party to take 
 
 -a fresh step in the case. Watts v. Ander- 
 son, 5 M.R. 291. 
 
 2. Depositions, manner of taking — 
 
 Intefrrogatories or viva voce. 
 
 Prima facie the\ examination upon a 
 commission is to be upon interrogatories. 
 
 And, where an order for a commission 
 made no provision for the mode of exam- 
 ination, depositions which had been taken 
 viva voce were quashed. Mvlligan v. 
 IT/iite, 5 M.R. 40. 
 
 3. Expert Evidence — Witnesses abroad. 
 Held, by Taylor, J., on appeal, affirm- 
 ing the decision of the referee: — ^ ' 
 
 1. A commission to examine a party to 
 the suit or his employee will not be 
 ordered, if opposed, no special circum- 
 stances being shown. 
 
 2. Expert evidence will not be per- 
 mitted to be taken abroad, except under 
 special circumstances. 
 
 3. The issuing Of a commission to take 
 evidence abroad is in the discretion of the 
 Court. Washburn & Moen Manufacturing 
 Co. V. Brooks, 2 M.R. 44. 
 
 4. Objections to leading questions. 
 
 Leading questions appearing in a for- 
 eign-commission may be objected to at 
 the trial, although counsel appeared upon 
 the execution of the commission and made 
 no objection. Mercer v. Fonseca, 2 M.R. 
 169. 
 
 6. Of plaintifE abr.oad — Applicaiion 
 for — Material for, sufficiericy of. , 
 
 A plaintiff suing in a foreign foruni 
 should not ordinarily be excused from 
 
401 
 
 EVIDENCE ON COMMISSION. 
 
 402 
 
 appearing there and giving his evidence: 
 per Chitty, J., in Boss v. Woodford, 
 [1894] 1 Ch. at page 42, and the proof that 
 the interests of justice require the issue of 
 a commission to take his evidence abroad 
 should be of the clearest Idnd and best 
 nature that -can be got, affidavits sworn 
 to on information and beUef only being 
 insufficient, The issue of such a com- 
 mission should be the exception and should 
 only be resorted to wheivthe inconvenience 
 or expense caused by requiring the plain- 
 tiff's personal attendance at the trial 
 would pretty nearly thwart the ends of 
 justice. 
 
 Keeley v. Wakley, (1893) 9 Times L. R. 
 571, followed. 
 
 These principles applied upon an appli- 
 cation by the plaintiffs, a company whose 
 head office was in Ottaw^, Ontario, for the 
 issue of a commission to take the evidence 
 of a number of the Company's officers at 
 Ottawa, in spite of affidavits tending to 
 show that the books of the Company at 
 the head office, which would have to be 
 put in evidence, were in constant use there 
 and could not be brought to Winnipeg 
 without great inconvenience and loss, also 
 that it would be practically impossible to 
 carry on the business of the Company if 
 all the officers whose evidence would be 
 necessary at the trial had to be absent 
 from the head office for the time necessary 
 to attend the trial at Winnipeg. The 
 Court was of opinion that the material 
 was- not sufficient to show that all the 
 books must be kept at the head office all 
 the time and that, if the evidence were 
 taken on conmiission at Ottawa, the 
 defendant would probably have to go 
 there himseK in order to instruct counsel 
 on cross-examination of the witnesses as 
 to entries in the books. 
 
 Order for commission set aside with all 
 costs to the defendant in any event. 
 
 Semble, if a proper case were made, an 
 order might go for the examination of 
 some of the officers of the Company at 
 Ottawa on some of the facts, which the 
 plaintiffs wished to prove; and that the 
 " books, or at all events all those that were 
 not absolutely required aU the time at the 
 head office, might be brought to Winnipeg 
 with the other officers to verify them so 
 that the 42otlrt might see those books 
 themselves rather than certified copies of 
 portions of them. Canadian Railway 
 Accident Insurance Co, v. Kelly, 17 M.R. 
 645. 
 
 6. Of plaintifE's chief witness abroad 
 
 — Application for — Materigl for, sufficiency 
 of. 
 
 A commission to take the evidence in 
 Toronto of the plaintiff's general manager 
 for use at the trial was refused where it 
 was shown that he would be the chief 
 witness for the plaintiff to meet defences 
 denying the sale of the goods sued for and 
 setting up that the plaintiff had agreed to 
 accept shares in the defendant company 
 in satisfaction of the debt guaranteed by 
 the individual defendants and ,that shares 
 hdd been accordingly allotted to and 
 accepted by the plaintiff, and when the 
 only material in support of the application 
 was an affidavit of- the witness saying that 
 he was a material witness to prove the 
 account and to disprove the various ,^ 
 defences, and that it would entail great 
 loss and expense for him to attend a trial 
 at Winnipeg, as his duties as general 
 manager of the plaintiff company required 
 his continued presence in Toronto. 
 
 Cunadian Railway, &c. Co. v. Kelly, 
 (1908) 17 M.R. 645; Lawson v. Vacuum 
 Brake Co., (1884) 27 Ch. D. 137, and Boss 
 V. Woodford, [1894] 1 Ch. 42, followed, 
 Toronto Carpet Manufacturing Co- v. Ideal 
 House Furnishers, 20-M.R. 571. 
 
 7. Depositions taken on commission 
 
 — Irregularities — Directory or imperative 
 requirements. 
 
 Apphcation on behaff of one of the 
 defendants to suppress depositions taken 
 in Montreal, on the ground that the 
 return had not been properly made. 
 Some of the exhibits used o;i the examina- 
 tion had been detached from the depos- 
 itions and used for other purposes, although * 
 they had been subsequently re-attached 
 to the depositions before they were filed. 
 Held, that, where no injustice had been 
 done, nor would result from non-oom- 
 pUance with the directions of an order to 
 examine, these directions may be treated 
 as merely directory; though there had 
 been grave irregularities in regard to the 
 exhibits and the manner in which the 
 examination was returned, yet there was 
 no object in putting the plaintiff to the . 
 great expense of having the examination 
 taken again, when the position would be 
 exactly the same. No injustice could be 
 done in this case by treating the directions 
 of the order to examine as directory in 
 this instance and, if the special examiner 
 ■would make an affidavit identifying the 
 exhibits and showing they were all now in 
 
403 
 
 EVIDENCE QN COMMISSION. 
 
 404 
 
 Court, the examination should be con- 
 firmed. 
 
 The defendant to have the costs of the 
 application. 
 
 Cowan V. Drummond, 14 C.L.T. Occ.N. 
 24. 
 
 8. Suppression of depositions — Oath 
 ^of Commissioner — Beifore whom taken — 
 Manner of taking depositions — Narrative 
 form. 
 
 Where evidence, in a cause pending in a 
 Court of Manitoba, is taken under a for- 
 eign commission, the commissioner mustj 
 before entering on his duties, take an oath 
 ""for the due discharge thereof, imless it is 
 expressly dispensed with by the order 
 directing the issue of the commission, or 
 unless the commission is addressed to a 
 Judge of a foreign Court, or to the foreign 
 Court itself. 
 
 The oath must be taken before some 
 person deriving his authority to take such 
 oaths from the laws of Manitoba. 
 
 A foreign commission directed the com- 
 missioner to reduce the questions and 
 answers to writing. He took down the 
 evidence of some of the witnesses in nar- 
 rative form. , 
 
 HM, a fatal objeistion. Oendron v. 
 Manitoba Milling Co., 7 M.R. 484. 
 
 ' 9. Suppression of depositions — 
 
 Waiver — Practice — Interpleader — Reversing 
 Judge's order — 49 Vic., c. 35, s, 19. 
 
 Where an order for a commission to take 
 evidence is silent as to the mode of exam- 
 ination, the evidence must be taken on 
 interrogatories; but, if the commission! be 
 issued to take the evidence viva voce, this 
 ig a mere irregularity 'which may be waived 
 by any participation in the proceedings 
 under it. 
 
 In an interpleader issue the plaintiff 
 obtained a Judge's order directing the 
 issue of a commission to take evidence in 
 a foreign coxmtry. The evidence was 
 taken, and on the return of the commission - 
 the defendant moved before the Referee 
 to suppress it. 
 
 Held, that the Bfeferee had no jurisdic- 
 tion to set aside a Judge's order, and he 
 cannot do it indirectly by suppressing the 
 commission. 
 
 Per KiLiiAM, J. The objection can only 
 be raised in showing cause to the summons 
 for an order directing the commission, or 
 at the trial as an objection to the admissi- 
 bility of the evidence. Thompson v. 
 Seguin, 8 M.R. 79. 
 
 10. Use of at trial. 
 
 A party who has procured evidence to 
 be taken on commission is not bound to 
 put it in at the trial, but, if it has been 
 duly returned into Court, the opposite 
 party has a right to put it in on his own 
 behalf if he desires. 
 
 Gordon v. Fuller,. (1835) 5 O.S. 174, 
 followed. Richardson v. McMillan, 18 
 M.R. 359. 
 
 11. Use of, at trial— Order to read at 
 the hearing-Orders to examine made before 
 cause at issue. 
 
 Held, affirming the order of the Referee, 
 that evidence taken abroad under an 
 order may be read at the hearing, although 
 the order does not state that the evidence- 
 may be so read. 
 
 The proper time to obtain a commission 
 (where the bill is not merely for discovery) 
 is after issue. But where upon notice 
 orders to take evidaice abroad had been 
 made before issue. 
 
 Held, that the depositions would not on 
 that account be suppressed, the proper 
 cpm'se was to have appealed against the 
 orders. Grisdale v. Chvhbuck,,\ M.R. 202. 
 
 12. Witness not under control of 
 party — Ageni of party — Procuring attend- 
 ance at trial. 
 
 Appeal by the plaintiffs from an order 
 of the Referee refusing a commission to 
 take the evidence of one Stephenson. 
 
 The affidavit in support of the appUca- 
 tion stated- that the witness lived in 
 Ontario; that he was a material and necess- 
 ary witness for the plaintiffs, and that 
 they could not safely proceed to trial with- 
 out his evidence. Stephenson was a com- 
 mercial traveller living in Toronto; while 
 he acted as the plaintiffs' agent in the 
 transaction out of which the action arose, 
 he was not in their emj)loyment in that 
 sense that they could insist on his coining 
 to Manitoba, at any time, to give his 
 evidence. 
 
 Held, that the plaintiffs were prima 
 fade entitled to an order: Armour v. 
 Walker, 21 Ch. D. 673. 
 
 Appeal allowed with costs to the 
 plaintiffs in any event; costs below to be 
 costs in the cause. Catier v. Rogers, 19 
 C.L.T. Occ.N. 410. 
 
 See Married Woman, 4. 
 
405 
 
 EVIDENCE ON MOTION. 
 
 406 
 
 EVIDENCE ON MOTION. 
 
 See Capias, 3. 
 
 — Practice, 1, 1; XXVIII, 12. 
 
 EVIDENCE— PAROL. 
 
 i Contract, VI, 2; XIII, 1, 2. 
 Evidence, 19, 20, 21, 22. 
 Rectification op Deed, 1. 
 Statute of Frauds, 5. 
 
 EVIDENCE— RELEVANCY OF 
 
 See Examination for Discovery, 12, 13, 
 
 14. 
 — Examination of Judgment Debtor, 
 
 13, 14. 
 
 EVIDENCE TO VARY WRITTEN 
 CONTRACT. 
 
 See Vendor and Purchaser, VI, 1. 
 
 EXAMINATION DE BENE ESSE. 
 See Practice, V, 2. 
 
 EXAMINATION FOR DISCOVERY. 
 
 1. Diacovery as to accounts before 
 judgment. 
 
 In a partnership bill there were some 
 general charges of misapplication and 
 misappropriation of moneys. The right 
 to a decree for account was conceded but 
 the defendants refused, upon examination, 
 to answer questions based upon the 
 general charges. 
 
 Held, 1. That the defendants were 
 bound to answer, even though the ques- 
 tions related to matters that would be 
 referred to the Master and not determined 
 at the hearing. 
 
 Elmer v. Creasy, L.R. 9 Ch. 69, ap- 
 proved. 
 
 2. Although the charges might not have 
 been sufficiently specific upon demurrer, 
 yet, the defendants having answered, they 
 were precluded from refusing to answer 
 fully. 
 
 3. Some of the questions were directed 
 to the defendants' dealings with the 
 "Pruden Farm." The defendants swore 
 that this farm was not an asset of the 
 firm, but they were nevertheless ordered 
 to give a full discovery respecting the 
 property. 
 
 Monhman v. Robinson, 3 M. R. 
 640, distinguished. Macdonald v. Mc- 
 Arthur, 4 M.R. 56. 
 
 2. Examination of defendant on 
 application to sign judgment. 
 
 Upon an application under 46 and 47 
 Vic, c. 23, s. 16, one defendant made an 
 affidavit of merits, and the presiding 
 Judge in chambers made an order for the 
 examination of two other defendants. 
 
 Held, affirming order of Dubuc, J., 
 that the examination of these defendants 
 was in the discretion of the Judge, and 
 the appeal should be dismissed with costs. 
 Imperial Bank v. Adamson, 1 M.R. 96. 
 
 3. Of a defendant by another de- 
 fendant — King's Bench Act, Rule 387 — 
 Meaning of expression "party adverse in 
 point of interest." 
 
 A defendant who, in his defence, sub- 
 mits completely to the reUef sought by 
 the plaintiff, neither denjfing nor admitting 
 the allegations of the statement of claim, 
 is not a "party adverse in point of inter- 
 est" to another defendant, who disputes 
 the plaintiff's rights, within the meaning 
 of Rule 387 of The King's Bench Act, and 
 the latter, therefore, feannot, under that 
 rule, examine the former for discovery^ as 
 the pleadings do not raise any issue 
 between them. 
 
 Shaw V. Smith, (1886) 18 Q.B.D. 193, 
 followed. 
 
 Moore v. Boyd, (1881) 8 P.R. 413, not 
 followed. Fonseca v. Jones, 19 M.R. 334. 
 
 4. Examination of defendants out 
 of the jurisdiction. 
 
 An order may be made for the examin- 
 ation of a defendant upon his pleas, even 
 though the defendant resides out of the 
 jurisdiction (affirming Dubuc, J.). 
 
 It would be a convenient practice to 
 grant such an order upon summons only, 
 but a Judge may, in his discretion, grant 
 it ex parte. 
 
 Service upon attorneys resident abroad, 
 as agents for the defendant's attorneys, is 
 not sufficient if their power to receive 
 notice "^was not established (overruling 
 Dubuc, J.). Miller v. Henry, 3 M.R. 425. 
 
407 
 
 EXAMINATION FOR DISCOVERY. 
 
 408 
 
 6. Ofiicer of corporation. 
 
 Plaintiff issued an appointment ilnder 
 Rule 379 of The Queen's Bench Act, 1895, 
 for the examination of one Somerset, as an 
 officer of the defendant company. On the 
 advice of the defendants' soUcitor, Somer- 
 set did not attend and the plaintiff moved 
 under Rule 390 to commit him for con- 
 tempt. 
 
 Plaintiff's cause of action was that, 
 while in the employ of the defendants and 
 working with some wires, the electric 
 current was carelessly turned on, whereby 
 he sustained injury. The current was 
 generated at and turned on from the 
 building called the power house, and 
 Somerset was an electrician in defendants' 
 employ at the power house and had the 
 control and management thereof and of 
 the electric current as a foreman, but his 
 duties had never been defined by the 
 directors nor had any resolution or by-law 
 been passed malsing him an officer of the 
 company. 
 
 Held, that he was an officer of the com- 
 pany within the meaning of that ex- 
 pression in Rule 379, and should attend and 
 submit to be examined. Canada Atlantic 
 Railway Co. v. Moxley, 15 S.C.R. 145, 
 followed. 
 
 Review of a number of the conflicting 
 decisions on the point. Dixon v. Winni- 
 peg Electric St. R. Co., 10 M.R. 660. 
 
 6. Officer of company — Information 
 not within his ■personal knowledge — Dviy of 
 officer to investigate for himself — Production 
 o/ documents. 
 
 On the examination of an officer of a 
 company for discovery, it is not competent 
 for him to make use of a jrifemorandum 
 prepared by the company's solicitor pur- 
 porting to contain the iniformation asked 
 for, if he knows nothing of the facts other- 
 wise than as stated in the memorandum 
 and has not verified its accuracy, or to 
 refuse to answer proper questions without 
 referring to the memorandum on the 
 ground that he has no personal knowledge 
 of the matters inquired into. It is the 
 duty of the officer in such a ca§e to investi- 
 gate for himself the original sources of 
 inforpiation in the possession or under the 
 control of any officer of the company and 
 come prepared to answer all relevant 
 questions without the aid of any memor- 
 andum unless prepared by himself or, 
 otherwise, under such circumstances that 
 he can pledge his oath to its accuracy. 
 
 - Bolckow V. Fisher, 10 Q.B.D. 161, and 
 Anderson v. Bank of British Columbia, 
 2 Ch. D. 657, foUowed. , 
 
 Welshach Co. v. New Sunlight, [1900] 
 2 Ch. 1, distinguished. 
 Fraser v. C.P.R., 4 W.L.R. 525. 
 
 The Court of Appeal subsequently, on 
 defendant's counsel undertaking to pro- 
 duce, for the inspection of plaintiff's 
 solicitor, all documents, other than privi- 
 leged ones, on which the memorandum - 
 referred to or any part of it was founded, 
 set-- aside the above decision and re- 
 instated the order of the Referee refusing 
 to compel the officer to attend again for 
 further examination. Fraser v. C.P.R., 
 5 W.L.R,. 42t 
 
 7. Officer of company. 
 
 Held, that the chief officer in this 
 Province of a foreign corporation can be 
 examined for discovery. Real Estate Loan 
 Co. V. MolswoHh, 2 M.R. 93. 
 
 8. Officer of coiap&n-y— King's Bench 
 Act, Rule 387 — Conductor of railway train, 
 when he may he examined as an officer. 
 
 The plaintiff's claim being that, while 
 employed as a brakeman on one of defend- ^ 
 ants' trains, he went under one of the" 
 cars, by order of the conductor in charge, 
 for the purpose of adjusting some chains, 
 and that, while so engaged, the train was 
 started without warning to him and 
 caused, him injury. 
 
 Held, that the conductor, under the 
 circumstanceis, was an officer of the rail- 
 way company within the meaning of 
 Rule 387 of The King's Bench Act, and 
 must attend and submit to be examined 
 as to his knowledge of the matter in 
 question. 
 
 Moxley v. Canada Atlantic Railway Co., 
 (1887) 15 S.C.R. 145; Leitch v. tf.r.fi., 
 (1890) 13 P.R. 359, and Dixon v. Winni- 
 peg, (1895) 10 M.R. 663, followed. 
 Gordanier v. C.N.R., 15 M.R.I. 
 
 9. Officer of corporation — King's 
 Bench Act, Rule 387. 
 
 Held, that the plaintiff could not, after 
 examining an officer of the defendant 
 corporation for discovery under Rule 387 
 of The King's Bench Act, require another 
 officer of the corporation to attend for a 
 similar examination when the information 
 desired could have been obtained from the 
 first officer examined. 
 
409 
 
 EXAMINATION FOR DISCOVlERY. 
 
 410 
 
 Dill V. Dominion Bank, (1897) 17 P.R. 
 488, not foUowed. Brown v. London 
 Fence Limited, 19 M.R. 138. 
 
 10. Officer of corporation — King's 
 Bench Act, Ride 387. 
 
 In an action against a city corporation 
 for damages occasioned by the negligence 
 of an employee of the Waterworks Depart- 
 ment of the City in discharging his duty 
 of examining a water meter in the plain- 
 tiff's premises, the plaintiff has a right, 
 under Ride -387 of The King's Bench Act, 
 to examine for discovery a water meter 
 inspector of the City as, an officer of the 
 corporation. 
 
 Dixon V. Winnipeg Electric Railway Co., 
 (1895) 10 M.R. 660, foUowed. Shaw v. 
 Winnipeg, 19 M.R. 551. 
 
 11. Privileged communications — 
 
 C.omm,unication between manager of bank 
 and head office — Principal and agent. 
 
 The manager of a branch bank at W., 
 having its head office at M., laid an infor- 
 mation against plaintiff, who subsequently 
 brought an action against the bank for 
 malicious arrest. On an examination of 
 the manager: 
 
 Held, 1. That he ought to have answered 
 the following questions: "When did you 
 first communicate with them (defendants) 
 about it?" . "How did you first com- 
 municate, by letter or telegraph?" 
 
 2. That he wa^ right in refusing to 
 answer the following question: 
 
 "Did you from time to time communi- 
 cate the facts previously stated in your 
 examination as they occurred?" McLean 
 v. Merchants' Bank, 1 M.R. 178. 
 
 12. Relevancy of questions — Action 
 for account of profits of partnership — . 
 Ambiguity in written contract— Evidence 
 tending to elucidate. 
 
 When the plaintiff alleges and ^;he 
 defendant denies that, upon the true 
 interpretation of an ambiguous contract 
 between them, he is entitled to call upon ■ 
 the defendant for an account of the 
 profits of a partnership between _ them, 
 the defendant should, upon his examina- 
 tion for. discovery in the action, answer 
 questions as to the profits, because the 
 evidence so elicited may throw some 
 light upon the meaning attached to the 
 language of 'the document by the parties 
 at the time and so assist the Court in 
 deciding the issue between the parties. 
 
 Even when the discovery sought is in 
 aid of something which does not form 
 part of what the plaintiff must prove at 
 the hearing, but is merely consequential 
 to it, the Court haS: a discretion to com- 
 pel answers when it would not be op- 
 pressive to do so. 
 
 Graham v. Temperance, &c.. Ass. Co., 
 16 P.R. at 539, and Parker v. Wells, 18 
 Ch. D. at 477, followed. Vanderlip v. 
 McKay, 3 W.L.R. 232. 
 
 13. Relevancy of questions — Injunc- 
 tion against use of trade name — Questions 
 tending to show misrepresentation by 
 plaintiffs as to their goods, relevancy of. 
 
 On a motion for an injunction to pre- 
 vent the use or imitation of the plaintiffs' 
 trade names for their medicinal prepara- 
 tioiis, the truth or falsity of the 
 representation as to the curative value and 
 ingredients of such preparations made by 
 the plaintiffs ia the advertisements issued 
 by them is relevant, and questions 
 addressed to the plaintiffs' manager, on his 
 cross-examination on his affidavit filed 
 in support of the motion, with a view to 
 elicit, evidence of such falsity, must be 
 answered by him. Theo Noel Co. v. Vitce 
 Ore Company, 17 M.R. 87. 
 
 14. Relevancy of questions — 1 
 
 Bench Act, Rule 379 — Disclosing names of 
 witnesses — Irrelevant matter . 
 
 On an examination of a plaintiff for dis- 
 covery under Rule 379 of The Kjpg's 
 Bench Act, he cannot be compelled to 
 dificlose the names of his-witnesses, or to 
 answer questions as to whether he has 
 received from persons or corporations, not 
 parties to the action, assistance or promise 
 of assistance or indemnity as to the costs 
 of the action, or as to whether he 1?on- 
 sulted before action with such other 
 persons as to bringing the suit. GibMns 
 V. Metcalfe, 14 M.R. 364. 
 
 16. Statement of claim showing no 
 right to relief claimed against party 
 examined — Refusal to answer questions — 
 Assignment by A. to B. in trust for C. 
 
 If the statement of claim does not state 
 a case entitling the plaintiff to any relief 
 against one of two defendants, an order 
 should not be made compeUing him to 
 answer, -on his examination for discovery, 
 questions which would be relevant if a 
 good cause of action had been disclosed. 
 
 The case alleged against the defendant 
 McLaws was simply that the plaintiff 
 
411 
 
 EXAMINATION OF JUDGMENT DEBTOR. 
 
 412 
 
 company had assigned ~ito him certain 
 accomits and securities to be held by him 
 as trustee for his co-defendant Beimetto 
 as collateral security to a chattel mortgage 
 which the plaintiff had given to Bennetto, 
 and that Bennetto had collected through 
 McLaws large sums of money upon such 
 accounts and securities for which Bennetto 
 had not accounted to the plaintiff. It 
 was not alleged that McLaws had retained 
 any of the moneys collected in his hands, 
 or that the amount collected exceeded the 
 amount necessary to discharge the mort- 
 gage. 
 
 Held, that, as the case was stated, 
 McLaws was not a trustee for the plaintiff 
 company and was not liable to account to 
 it, and the compajay had no Hght to com- 
 plain because he had not done, so, and no 
 right to any reUef against McLaws was 
 disclosed. 
 
 If it had been alleged in the statement 
 of claim that McLaws had collected more 
 than enough to satisfy the chattel mort- 
 gage and that the surplus was in his hands 
 and that he had refused to pay it over, 
 even though he had collected it as trustee 
 for Bennetto, he would be a proper party 
 to the action and the plaintiff would be 
 entitled to relief against him: Cowper v. 
 Sloneham, (1893) 68 L. T. 18. Winnipeg 
 Granite and Marble Co. v. Bennetto, 21 
 M.R. 743. 
 
 16. Witness refusing to make afii- 
 davit — Order for examination. 
 
 1. An order for the examination of a 
 person who refuses to make an aflBdavit 
 is discretionary. Under the circumstances 
 in this case it was refused. 
 
 2. Before a person can be said to have 
 refused to make an affidavit it should in 
 its main particulars be prepared and 
 handed to the person asked to make it, 
 with the offer to modify or vary the state- 
 ments according as he may be prepared to 
 testify. 
 
 3? The holder of a judgment alleged to . 
 have been fraudulently' obtained may 
 refuse to answer questions respecting it. 
 Brown v. Hooper, 3 M.R. 86. 
 
 See Costs, XIII, 10. 
 
 — Evidence, 8. ' » 
 
 — Practice; IV, XIV, 1; XVI, 3, 4; 
 
 XXII, 3; XXVIII, 21. 
 
 — Pboduction of Documents, 4. 
 
 — Secukity fob Costs, I, 1. 
 
 EXAMINATION OF JUDGMENT 
 DEBTOR. 
 
 1. Commitment for contempt in 
 refusing to give' satisfactory answers 
 
 — 'King's Bench Ad, Rides 748, 755. 
 
 "The defendant, on her examination as a 
 judgment debtor under Rule 748 of the 
 King's Bench Act, R.S.M. 1902, c. 40, 
 admitted that she had upon her person 
 more than enough money to pay the 
 judgment, but refused to answer whether 
 she would pay it or to say why she would 
 not. Afterwards upon the pilaintiff's 
 application, under Rule 755, the defendant 
 was ordered by Mathers, J., to be com- 
 mitted to gaol for twelve months on the 
 groimd that, within the meaning of that 
 Rule, she had not made satisfactory 
 answers to the questions. On appeal. 
 
 Hdd, per Howell, C.J.A., and Perdue, 
 J.A., " following Merrill v. McFarren, 
 (1881) 1 C.L.T. 133, and Metropolitan 
 Loan Co. v. Mara, (1880) 8 P.R. 360, that 
 the order was justified and should not be 
 set aside. 
 
 Per Richards and Phippen, JJ.A., 
 that the word "satisfactory" in Rule 755 
 only means "full and truthful" and that, 
 as Rule 748 does not provide for any 
 questions as to the debtor's willingness to 
 pay or as to his reasons for refusing to 
 pay, there should be no order to commit 
 under Rule 755 for refusal to answer such 
 questions. 
 
 The Court being equally divided, the 
 appeal was dismissed without costs. 
 
 Subsequently an order was made on 
 consent providing for the release of the 
 defendant, pendmg an appeal to the 
 Supreme Court, on terms satisfactory to 
 the plaintiff. Batemanv.Svenson,18M..'R. 
 493. 
 
 Appeal quashed, 42 S.C.R. 146. 
 
 2. Conduct money. 
 
 A judgment debtor served with an order , 
 and appointment under section 52 of The 
 Administration of Justice Act, 1885, is 
 entitled to be paid conduct money and 
 expenses as in the case of an ordinary 
 witness. Gait v. Stacey, 5 M.R. 120. 
 
 3. Contributories in winding up — 
 
 Company — Winding up — Orders for con- 
 tributaries to pay, judgments of the Court — 
 ' Liability of contributory to examination as a 
 judgment debtor. '" 
 
 Orders to pay, under section 78 of The 
 Winding Up Act, R.S.C. c. 129, are judg- 
 ments of this Court. 
 
413 
 
 EXAMINATION OF JUDGMENT DEBTOR. 
 
 414 
 
 An order to examine a judgment debtor 
 should not be granted, unless the creditor 
 shows thalj execution has been issued, 
 placed in the sherifi's hands and returned 
 nidla bona, or that, if called upon to return 
 the fi. fa., the sheriff would return same 
 nulla bona. 
 
 Quosre, whether contributories^ ordered 
 to pay money can be examined under 
 A. J. Act, R.S.M., c. 1, s. 64. Re Bishop 
 Engraving and Printing Co., 9 M.R. 62. 
 
 4. Discretion of Judge. 
 
 Held, 1. An order to examine a judg- 
 ment debtor may, in the discretion of the 
 Judge, be refused. 
 
 2. AlH order to examine a judgment 
 debtor will not be made ex parte. Ferguson 
 V. Ghambre, 2 M.R. 184. 
 
 6. Evidence of refusal to answer — 
 
 Certificate of examiner — Reading over letter 
 before acknowledging signature — Discretion 
 of examiner in taking diriim answers. 
 
 A certificate of the examiner, as to what 
 took place upon the examination of a 
 judgment debtor, is proper evidence on a 
 motion to commit for refusal to answer, 
 and it is not necessarily an objection that 
 such certificate was settled and given 
 ex parte. 
 
 It is improper for defendant and his 
 counsel during the examination to con- 
 verse together, and especially in another 
 language. 
 
 A witness, whMi shown a document and 
 asked whether the signature is his, is not 
 entitled to read over the document before 
 answeri^ the question. If he really can- 
 not answer the question without reading 
 over the docuilient or some part of it, he 
 should say" so. 
 
 Semhle, the judgment debtor imder 
 examination is not entitled to have every 
 word or sentence he uses taken down by 
 , the examiner. The latter may use his 
 discretion and only put down relevant 
 answers or explanations. Brock v. D'Aoust, 
 9 M.R. 195. 
 
 6. Fraudulent prior judgment — In- 
 terpleader — Evidence for use on motion or 
 summons. 
 
 Under section 46 of the C. L. P. Act, 
 1854, a judgment creditor who claims that^ 
 prior judgments are fraudulent and void, 
 and is called upon by interpleader sum- 
 mons issued at the instance of the sheriff 
 to maintain or abandon his claim, may 
 examine the judgment debtor as to the 
 nature of his dealings with the other 
 
 judgment creditors, and as to the \ndebt- 
 edness on which such other judgments 
 were obtained, and such examination may 
 be used upon the return of the interpleader 
 summons. Carscaden v. Zimmerman, 9 
 M.R. 178. 
 
 7. Jurisdiction of County Court 
 Judge — Separate or firm property. 
 
 Under section 65, sub-section (a), of 
 The Queen's Bench Act, R.S.M., o. 36, 
 a County Court Judge is authorized to 
 order the examination of judgment debt- 
 ors. 
 
 Where there were two judgment debtors 
 and the order was to examine them 
 "touching their estate and effects," 
 
 Hdd, that they could be examined as 
 to their individual estate and effects as 
 well as to their firm or j oint property. Im- 
 perial Bank v. Smith, 8 M.R. 440. 
 
 8. Married woman.— Debtors' Arrest 
 
 Act, s. 7. , ■ 
 
 A married woman may be examined as 
 a judgment debtor, and punished by 
 arrest for refusal to obey the order for her 
 examination; for, although, by section 7 of 
 the Debtors' Arrest Act, no married woman 
 is hable to arrest on mesne or final process, 
 the order to attend and be examined may 
 be enforced by an order for her commit- 
 ment to prison, which would be a punish- 
 ment for contempt of court and not in the 
 nature of imprisonment for debt. Sanford 
 Manufacturing Co. v. McEwan, 10 M.R. 
 630. 
 
 9. Non-resident corporation or indi- 
 vidual debtor — Queen's Bench Act, 1895, 
 Rule 732-3 — Non-resident. 
 
 No order can be made under Rule 733 
 of The Queen's Bench Act, 1895, for the 
 examination out of the jurisdiction of an 
 oflicer of a judgment debtor corporation, 
 for discovery of assets, &c., and it is 
 doubtful whether, under Rule 732, an 
 individual judgment debt<?r who is resident 
 abroad can be so examined unless he comes 
 within the jurisdiction. 
 
 Grey v. Manitoba & N.W.R.Co., 12 
 M.R. 32. 
 
 10. OfEicer of debtor company — 
 
 Examination of officer — Corporation — 
 Production of books of corporation — Costs. 
 
 Upon an appUcation to examine an 
 officer of a judgment debtor corporation 
 there should be distinct evidence that the 
 person named is an officer of the corpora- 
 tion, and what office he holds. 
 
415 
 
 EXAMINATION OF JUDGMENT DEBTOR. 
 
 416 
 
 No order can be made that an officer do 
 produce the books of the corporation, (o). 
 
 No order can be made directing that 
 the costs of the appUcation and examina^ 
 tion be added to the plaintiff's debt. 
 Jukes V. Winnipeg- and Hudson's Bay 
 Ry. Co., 5 M.R. 14. 
 
 (a) As to this, however, see Mann v. 
 Winnipeg & Hudson'sBay Ry. Co., 1 M.R. 
 457, next case. 
 
 11. Officer of debtor' company — 
 
 Corporation — Examination of officers — Pro- 
 dudion of books by corporation. 
 
 Under section 52 of The Administration 
 of Justice Act, 1885, an order may be ^aade 
 for the examination of an officer of a 
 judgment debtor corporation, and for pro- 
 duction by the corporation of books, 
 papers and documents. Mann v. Winni- 
 peg & Hudson'sBay Ry. Co., 7 M.R. 457. 
 
 12. Refusal to answer questions con- 
 'cerning business carried on in wife's 
 name — Separate property of vrifi — Busi- 
 ness in which others are interested. 
 
 On. an examination of defendant, a 
 judgment debtor, it appeared that a busi- 
 ness was carried on under the name of 
 Carley Bros. Defendant's wife and his 
 brother were partners; the capital was 
 contributed by them in equal shares, and 
 they alone were interested in it; none of 
 defendant's personal money went into the 
 business; his wife took no part in the 
 management except through him; he 
 ' acted for her under a power of attorney; 
 the business was managed by lus brother 
 and himself, and he received a weekly 
 salary. 
 
 Held, that the business was not one 
 carried on by the wife separately from the 
 husband; she did not carry it on at all; he 
 represented his wife's share in the business, 
 except through hint she took no part. in it. 
 
 Held, also, that a sufficient case had 
 been made to show that the husband was 
 entitled to an interest in the profits. He 
 was, therefore, bound to answer such 
 questions as might be put to him respect- 
 ing the profits derived from the business, 
 and how they had been disposed of and 
 dealt with. That others were interested 
 was not a reason for refusing to make such 
 discovery. 
 
 MoT^kman,v. Robinson, 3 M.R. 640, and' 
 Ross V. VanEtien, 7 M.R. 598, followed. 
 Merchants Bank, v. Carley, 8 M.R. 258. 
 
 Distinguished, Nicol v. Gocher, 12 M.R. 
 178. 
 
 13. Refusal to answer questions as 
 to wife's property — Unsatisfactory an- 
 swers. 
 
 A judgment debtor upon his examinar 
 tion refused to answer questions as to his 
 wife's property. 
 
 Held, that his refusal was justifiable. 
 
 To a number of questions the debtor 
 replied that he did not know, or that he 
 had forgotten. 
 
 Held, that these answers could not be 
 said to be unsatisfactory, although there, 
 was a strong suspicion that they were not 
 altogether truthful. Monkman v. Robin- 
 son, 3 M.R. 640. 
 
 Distinguished, Maedonald v. McArtltur, 
 4 M.R. 56 
 
 14. Relevancy of questions — Refusal 
 to answer — Sati^actory answers. 
 
 Upon an application to compel the 
 defendant to answer certain questions 
 which he had refused 'to answer on his 
 examination as a judgment debtor. 
 
 Held, the rule is, do the questions relate 
 to the debtor's property or his transactions 
 respecting the same? If so, he must 
 answer them. 
 
 Held, also, the fact that the information 
 obtained from the answers is intended to 
 be used for the purposes of a suit against 
 a third party is no ground for refusing to 
 answer: ' 
 
 The meaning of the expression "satis- 
 factory answers," in sub-section 1 of 
 section 52 of The Administration of Justice 
 Act, 1885, considered. Ross v. Van Etlen, 
 7 M.R. 598. 
 
 15. Return by Sheriff necessary be- 
 fore order made. 
 
 A judgment debtor is not examinable 
 untU- the judgment creditor has placed a 
 fi. fa. in the Sheriff's hands, and it has 
 either beep returned nulla bona, or the 
 Sheriff has notified the judgment creditor 
 that, if called upon to return the execu- 
 tion, such would be his return. 
 
 Ontario Bank v. Trowern, 13 P.R. 422, 
 followed. Carscaden v. Zimmerman, 9 
 M.R. 102. 
 
 16. Secured debt — Order refused. 
 WhelSier an order will be made for the 
 
 ejcamination of a judgment debtor is dis- 
 cretionary with the Judge applied to. 
 
 The debt being amply secured, an order 
 was refused and upon appgal this refusal 
 was upheld. 
 
417 
 
 EXAMINATION ON AFFIDAVIT. 
 
 418 
 
 Per DuBuc, J. When a Judge has a 
 discretion to exercise and has exercised it, 
 his order should not be restjinded unless it 
 is found to be manifestly erroneous, 
 through misconception of some facts or of 
 some principle of law. Ferguson v. 
 Chambre, 3 M.R. 574. 
 
 See Appeal to Supreme Court, 6. 
 
 — Attachment of the Person, 1. 
 ■ — ■ Infant, 10. 
 
 — Practice, XXVIII, 8. . 
 
 EXAMINATION ON AFFIDAVIT, 
 
 1. Place of examination — Oarnishee. 
 Writ issued in the Western Judicial' 
 
 District.' An order was obtained for the 
 examination, at Brftndon, of the garnishee, 
 on an affidavit made by him. The 
 garnishee resided in Wuinipeg. 
 
 Held, that the order ought to be varied, 
 and direct the examination to be held at 
 Winnipeg. Imperial Bank v. Angus, 
 Fraser, Garnishee, 1 MJl. 98. 
 
 2. Second affidavit of same person — 
 
 Practice. 
 
 Upon^a motion, defendant filed an affi- 
 davit of A., who afterwards made another 
 explanatory affidavit at the instance of 
 the plaintiff. 
 
 ' Held, that defendant was not entitled 
 to an order for the oral examination of A. 
 Carey v. Wood, 2 M.R. 32. 
 
 3. Spent aSSAxntr^Afidavit used on 
 an application in Chambers — Subsequent 
 examination of deponent. 
 
 Held, that where ah affidavit had been 
 used, and answered the purpose for which 
 it had been filed, an order to examine the 
 deponent upon it will not be granted. 
 Imperial Bank w. -Taylor, I'M.R. 244. 
 
 4. Spent afiidavit — Affidavit, having 
 served purpose for which filed — -No motion 
 pending — Order to examine on — Ex parte 
 order — Deponent refusing to attend on' 
 examination. 
 
 Plaintiff brought an action by a writ 
 issued under The Simamary Procedure on 
 Bills of Exchange Act, and defendant 
 company obtained, on an affidavit of D. , 
 its president, an ex parte order giving it 
 leave to appear. The plaintiff then 
 obtained ex parte, from the Referee in 
 Chambers, an order directing D. to appear 
 before a special examiner and submit to 
 
 be examined viva voce on his affidavit. In 
 support of this appUcation there was filed 
 an affidavit of plaintiff's attorney that it 
 was plaintiff's intention to move to rescind 
 the order giving leave to appear. This 
 order, with examiner's appointment, was 
 duly served and conduct money paid, but 
 D. did not appear. A motion was then 
 made before the Referee to strike out the 
 defence or set aside the order allowing 
 appearance. The Referee made an order 
 directing D. to appear for examination at 
 his own expense and in default that the 
 defence should be struck out. 
 
 From this order defendant appealed 
 to a Judge in Chambers, who reversed, the 
 order and dismissed the application. 
 Plaintiff then appealed to the Full Court. 
 / Held, that the order for examination 
 should not have been made'on the grounds 
 that the affidavit had served its purpose 
 and there was no motion pending. 
 
 Held, also, that the Court was not 
 obliged to enforce the order, although it 
 had been made and had not been rescinded. 
 Long V. Winnipeg Jewelry Co., 9 M.R. 159. 
 
 See Election Petition, I, 1, 2. 
 
 — Foreign Court, 1. . 
 
 — Practice, XXII, 2. 
 
 — Production of Documents, 7, 13, 14. 
 — • Winding-up, IV, 2. 
 
 EXCEPTIONS TO THE DECLARA- 
 TION. 
 
 See Pleading, X, 1. 
 
 EXCESSIVE FINE. 
 
 ! Criminal Law, XIII, 3. 
 
 EXCESSIVE RENT. 
 
 See Landlord and Tenant, II, 4. 
 
 EXCESSIVE SEIZURE. 
 
 See Thresher's Lien. 
 
 EXCHANGE OF GOODS. 
 
 jSee Sale op Goods, VI, 4. 
 
419 
 
 EXCHANGE OF LANDS* 
 
 420 
 
 EXCHANGE OF LANDS. 
 
 See MOETGAGOB AND MORTGAGEE, V, 3. 
 
 — Pbincipal and Agent, II, G. 
 
 — Vendor and Purchaser, VII, 4. 
 
 EXECUTED CONTRACT, 
 
 iSee Evidence, 17, 20. 
 
 EXECUTION. 
 
 See Fi. Fa. Goods. 
 — Practice, III, 4. 
 
 EXECUTION CREDITOR. 
 
 See Assignment for Benefi* qf Cred- 
 itors, 2j 3. 
 . — ■ Attachment of Goobs, 6. 
 
 — Bills of Sale, 2. 
 
 — Costs, XIII, 11. 
 
 — Fi. Fa. Goods, 4. 
 
 — Fraudulent Convetance, 8. 
 
 — Garnishment, VI, 2. 
 
 — Husband and Wife, I, 3; III, 2. 
 
 — Landlord and Tenant, IV, 1. 
 
 — Ownership of Crops. 
 — ' Partnership, 6. 
 
 — Sbcuritt for Costs, I, 2. 
 
 — Sheriff, 2. 
 
 — Winding-up, III, 1; IV, 5. 
 
 EXECUTORS. 
 
 ; Will, I, 2; III, 5. 
 
 EXECUTORS AND 
 ADMINISTRATORS. 
 
 1. Judgment against — Form — Plead- 
 ing — Reference under R.P.Act. 
 
 A certificate of a County Court judg- 
 ment against "A. B., administrator of the 
 estate of X.," charges A." B. personally 
 and not the estate. 
 
 The note or memorandum of a County 
 Court Judge is not, but the entry of the 
 clerk in. the procedure book is,' the judg- 
 ment. 
 
 Upon a reference by the Registrar- 
 General under The Real Property Act, ho 
 material other than the case submitted, 
 together with any documents transmitted, 
 can be considered. 
 
 Sembh, when an executor or adminis- 
 trator is made a party to an action, as 
 such, he must declare, or be charged, 
 clearly in that character. Re Joyce & 
 Scarry, 6 M.R. 281. 
 
 2. Personal liability oi—IAoMdiy of 
 executor forr goods supplied for business of 
 testutor carried on for benefit of estate under 
 authority in mil — Estoppel — Statute of 
 Limitations. 
 
 . The estate of John N. Braun, deceased, 
 was being administered in this action . 
 commenced in May, 1892, and Velie 
 brought into the Master's office in 1901 
 a claim for goods supplied to the executor, 
 Henry Braun, between July, 1890, and 
 March, 1892, for use in carrying on the 
 hotel business of deceased under authority " 
 conferred by his will. 
 
 VeMe had, in May. 1893, sued the exe- 
 cutor in a County Court for the price of 
 the goods in question, but the County 
 Court Judge dismissed the action on the 
 ground urged by the defendant that he 
 was not personally liable, but that the 
 claim should be against the estate. The 
 executor claimed in the administration 
 proceedings that the estate was insolvent, 
 but in April, 1894, an order was made by 
 consent for the transfer of all the assets 
 to him personally upon his imdertaking 
 to pay or settle with all the creditors Of 
 the estate and paying $1,200 into the 
 hands of trustees for the benefit of the 
 children of the deceased and certain costs, 
 and this order was carried out on both 
 sides. The order contained provisions 
 that the Master should forthwith adjudi- 
 cate upon and settle all claims against the 
 estate, that the executor should indemnify 
 and save harmless the estate from all such 
 claims and that he should carry out and 
 perform all the terms and provisions of 
 the settlement. 
 
 Held, (1) A person supplying goods to 
 an executor under such circumstances has 
 no right against the estate, but he may 
 sue the person who incurred the debt, and 
 he also has-a right to be subrogated to any 
 right of indemnity which the executor has 
 against the estate in respect of the liabUity 
 so incurred: In re Frith, [1902] 1 Ch. 342; 
 Dowse v. Gorton, [1891] A. C. at p. 199. 
 
 (2) Per KiLLAM, C.J.— That the ex- 
 ecutor was estopped by the agreement of 
 
421 
 
 EXECUTORS AND TRUSTEES. 
 
 422 
 
 settlement he made and by the order 
 confirming the same from setting up the 
 defence of a deficiency of assets out of 
 which to pay, and thstT under the circum- 
 stances VeUe's claim should be treated as 
 one against the estate upon whiph the 
 Master was bound to adjudicate imder 
 the consent order. 
 
 (3) Per DuBuc, J. — ^That the executor 
 was estopped by the course he had taken 
 in the Cfounty Court suit from disputing 
 the validity of the claim against the 
 estate. / 
 
 (4) There was no ground for setting up, 
 that the claim was barred by the Statute of 
 Limitations. Braun v. Brawn, 14 M.R. 
 346. 
 
 3. Personal liability oi—LiaUKty of 
 estate for work done for administrator. 
 
 An estate in the hands of an adminis- 
 trator is. not Uable for work done or ser- 
 vices performed at the request of the 
 administrator, although the estate gets 
 the benefit of the workrand services, but 
 the administrator is liable in his personal 
 capacity in such a case. 
 
 Farhall v. Farhall, (1871) L.R. 7 Ch. 123, 
 followed. Dean v. Lehberg, 17 M.R. 64. 
 
 4. Remuneration of — Executors and 
 trustees. 
 
 In fixing the amount of compensation 
 to trustees, there should be taken into 
 consideration: 
 
 (1) The magnitude of the trust; 
 
 (2) The care and responsibility spring- 
 ing therefrom; 
 
 (3) The time occupied' in performing its 
 duties; i 
 
 (4) The skill and abiUty displayed; 
 
 (5) The success which has attended its 
 administration. 
 
 Such compensation, while fair and just, 
 must be reasonable but not necessarily ' 
 liberal. 
 
 The duties of the executors in this" case 
 were to realize on the real estate of the 
 testator in Manitoba and transmit " the 
 proceeds to the Ontario executors. It 
 took nine years to compleite the work, and 
 it appeared that the executors had carried 
 out their duties with ^eat faithfulness and 
 unusual success, assisted by the great 
 advance in the values of real estate during 
 that period, and that the totat amount of 
 money realized was over 1300,000, also 
 that Mr. Riley, who had had the chief 
 management , of the work, had already 
 received under orders of the Court $19,500 
 on account. 
 
 Held, that an additional compensation 
 to Mr. Riley of two per cent of the gross 
 amount realized would be fair and reason- 
 able and that the other two executors 
 should together have two per cent of the 
 same. 
 
 Held, also, that Mr. Riley was not 
 entitled to commission as a real estate 
 agent on sales of lands to purchasers se- 
 cured by him personally, although he 
 might have employed another person at 
 the expense of the estate to perform such 
 services: Am. &Eng.Ency., vol. xi, p. 1306. 
 Re Sanford Estate, 18 M.R. 413. 
 
 See Administration, 2, 3. 
 
 — CONTEACT, VI, 1. 
 
 — Injunction, I, 8. 
 
 — Real Pbopeety Act, V, 3. 
 
 EXECUTORS AND TRUSTEES. 
 
 See Will. 
 
 EXEMPLABT DAMAGES. 
 
 See Tbhspass and Teoveh, 1. 
 
 EXEMPTIONS 
 
 1. Abandonment of homestead — 
 
 Statutes — Repeal. 
 
 49 Vicr, c. 17, s. 117, s-s. 8, exempts from 
 execution the land upon which the defend- 
 ant or hip family resides, or which he cul- 
 tivates wholly or in part, not exceeding 
 160 acres, provided that "said 160 acres 
 must be outside the limits of any city or 
 town." The proviso was by 49 Vic, c. 35, 
 s. 2, repealed. 
 
 Held, that the repeal rendered lands 
 within town limits exempt from execution 
 for debts incurred previous to the repeal. 
 
 Defendant owned a homestead and 
 occuiiied a house upon it for several years. 
 He himself wds much absent in England, 
 but his family continued to reside there 
 until the' 1st of October, 1889; when, 
 without defendant's knowledge, they re- 
 moved to another place — ^f or the temporary 
 purpose merely of wintering their cattle. 
 In the follpwing March they returned to 
 the homestead accompanied by the defend- 
 ant. 
 
423 
 
 EXEMPTIONS. 
 
 424 
 
 Held, that^ in the absence of evidence to 
 show any intention to abandon the home- 
 stead, or that the plaintiff was in ^ny way 
 misled, the exemption stiU continued. , 
 
 A conveyance of a homestead by way 
 of mortgage does not preclude a claim of 
 exemption from execution. 
 
 Quaere, can one member of a partnership 
 after dissolution assign a judgment ob- 
 taincid by the firm. Hockin v. Whellams, 
 6 M.R. 521. 
 
 2. Actual residence or home of 
 
 Aebt0T—R.S.M., c. 53, s. 43, s-s. {k). 
 
 Defendant claimed that certain build- 
 ings seized in August, 1898, under execu- 
 tion were exempt under section 43, ■ sub- 
 section (k), R.S.M., c. 53, as being his 
 actual residence or home. 
 
 The evidence was that in September,^ 
 1897, defendant gave up his posi]tion as' 
 Indian agent at Berens River, and rented 
 the buildings in question, in which he had 
 been living and which he had erected on 
 Crown land, to his successor in office. He 
 then built a temporary log house, on an 
 island about 1| miles away, in which he 
 lived with his family, and where he main- 
 tained himself by fishing. He afterwards 
 tried to sell the building in question to the 
 Dominion Government. 
 
 He swore that his absence was only 
 temporary and that, if he could not get 
 the Government to pxirchase, he intended 
 to return and occupy the buildings "as his 
 own. 
 
 Held, DuBUC, J., dissenting, that ihe 
 buildings had ceased to be the actual 
 residence or home of the defendant and 
 were, therefore, not exempt from seizure. 
 Dixon v. McKay, 12 M.R. 514. 
 
 3. Actual residence or home of 
 debtor — Homestead — Judgments Act, B.S. 
 M., c. 80, s. 12, 
 
 The plaintiff claimed a right to have 
 two village lots owned by defendant 'sold 
 to satisfy a judgment of which he had 
 registered a certificate. 
 
 Defendant occupied as his dwelling the 
 upper floor of a two-story building on one 
 of the lots, the ground floor having been 
 biiilt for use as a store. There was a 
 stairway inside the building connecting 
 the two floors, also a stairway from the 
 outside to the dwelling. 
 
 The two lots were occupied as one 
 property and some use was made of the 
 vac£int store for storage of articles used in 
 connection with the dwelling. 
 
 The iudge at the trial found that the 
 value of the property was $3,000 and that 
 there was a mortgage upon it for an 
 amount exceeding $2,000. 
 
 Held, that the defendant was bona fide 
 using the whole premises as his residence 
 and that, under section 12 of The Judg- 
 ments Act, R.S.M., c. 80, the property as 
 a whole was free from sale under the 
 judgment. 
 
 Bain, J., dvMtante. Codville v. Pearce, 
 13 M.R. 468. 
 
 4. Building partly occupied as home 
 of debtor — Married woman. 
 
 The defendant, a married woman, owned 
 a building subject to -a mortgage. She 
 occupied a part of it as a home (her 
 husband hving elsewhere) and rented the 
 rest to another for use as a shop. There 
 were separate entrances to the two por- 
 tions of the building. Upon a bill to 
 enforce a registered judgment obtained 
 against the defendant. 
 
 Held, 1. That the portion occupied by 
 the defendant was exempt from seizure or 
 sale. 
 
 2. That the portion rented was not 
 exempt. 
 
 3. That the mortgage should be appor- 
 tioned. 
 
 4. Reference to the Master to ascertain 
 exactly the portions occupied and rented 
 and to apportion the mortgage. 
 
 5. Afi.fa. goods must be returned before . 
 sale under ./t. fa. lands, but not necessarily 
 before a decree can be made to enforce the 
 statutory hen given by registration of a 
 judgment. Warne v. Housley, 3 M.R. 
 547. 
 
 6. Building partly occupied as home 
 of debtor — Actual residence or home of 
 any person — Building used as dwelling and 
 shop. 
 
 A building in which is the acjtual resi- 
 dence and home of a judgment debtor, and 
 not worth more than $1,500, wiU be 
 exempt under R.S.M. c. 53, s. 43, from 
 proceedings to reahze the judgment, not- 
 withstanding that the lower story was 
 built for and wholly ■ used as a general 
 store; and feuch a building, therefore, wiU 
 not pass to the assignee by an assignment 
 for the benefit of creditors under section 3, 
 R.S.M., 0. 7. Bertrand v. Magnusson, 10 
 M.R. 490. 
 
 6. Death of judgment debtor — Judg- 
 ments Act. R.S M., c. 80, s. 12. 
 
425 
 
 EXEMPTIONS. 
 
 426 
 
 The plaintiffs recovered a judgment 
 against the defendant as surviving exe- 
 cutor of the estate of one William Kines, 
 and vmder Rule 804 of The Queen's Bench 
 Act, 1895, applied for an order for the sale 
 of a parcel of land vested in the defendant 
 as such executor. The widow and minor 
 children of Kines were living on the land. 
 
 Held, that section 12 of The Judgments 
 Act, R.S.M., c. 80, which provides that 
 no proceedings shall be taken under any 
 Registered judgment against the land upon 
 which the judgment debtor or his family 
 actually resides or which he cultivates, 
 would not apply so as to prevent the sale 
 of the land in question, as neither the 
 defendant nor his family resided upon or 
 cultivated it. 
 
 Statutes conferring exemptions or privi- 
 leges in derogation of the general law must 
 be construed strictly, so that the protec- 
 tion of s. 12 does not continue after the 
 death of the judgment debtor, although 
 his widow and children may be living upon 
 the property; and a fortiori no exemption 
 can be claimed when the judgment in 
 question is recovered against the executor 
 of the deceased debtor. London & Can- 
 adian Loan & Agency- Go. v. Connell, 11 
 M.R. 115. 
 
 7. Homestead of debtor conveyed to 
 his wife — Registered judgment — Fraudvr 
 lent conveyance. 
 
 The plaintiff recovered a judgment 
 against the defendant which was regis- 
 tered in July, 1896. [The defendant, in 
 August, 1896, became entitled as a home- 
 steader to a patent to a quarter section of 
 land, but in September signed a quit 
 claim deed in favor of his wife, in conse- 
 quence of which the patent issued in his 
 wife's name. At the time of the transfer 
 the husband was insolvent. The transfer 
 was given without consideration and for 
 the purpose of protecting the husband 
 against his creditors. The wife claimed 
 no interest in the land other than as 
 trustee for her husband. The defendant 
 claimed that the land was exempt from, 
 sale un^er The Judgments Act, R.S.M., 
 c. 80, s. 12 (a), being the land upon which 
 he and his family actually resided. 
 
 Held, per Bain, J., that the plaintiffs 
 were entitled to an order for the sale of 
 the lands under Rule 803 ©f The Queen's 
 Bench Act (now Rule 742 of The King's 
 Bench Act) to satisfy their judgment. 
 The conveyance to the wife, although 
 fraudulent and void as against creditors, 
 was still good as between the parties to it. 
 
 and so, as between the husband and his 
 wife, the title to the lands was in her, and 
 he had no interest in them, and a man 
 could not claim as an exemption land that 
 does not belong to him and in which he 
 has no interest, although he may actually 
 live upon it. 
 
 Massey-Harris Co. v. Warener, 17 
 C.L.T. Occ.N. 409. - 
 
 N.B. The Full Court afterwards al- 
 lowed an appeal from the above decision, 
 but on the ground that the plaintiffs had 
 not given proper proof of the registration 
 of their judgment against the defendant, 
 expressing no opioion on the point de- 
 cided by Bain, J. See 12 M.R. 48. 
 
 8. Horse and harness- 
 
 Held, that a horse and harness, which 
 were part of 'the goods seized under an 
 execution against goods, were privileged 
 from seizure under execution under The 
 Homestead Act, 34 Vic, c. 16, being the 
 only horse and harness of the debtor, but 
 thai a set of weighing scales was not 
 exempt. Nelson v. Gumey, T. W., 173. 
 
 9. Land once bound by writ not 
 afterwards exempted. 
 
 Defendant sold land to his father in 
 1882. Plaintiff recovered judgment 
 against defendant in 1885 for $15,000, 
 and issued fi. fa. lands. In 1888 a decree 
 declared the deed from defendant to his 
 father fraudulent as against the plaintiff. 
 Immediately after decree the father re- 
 conveyed the land to the defendant to 
 enable him to claim it as exempt from 
 seizure. Until the re-conv^yance defend- 
 ant Uved with his father upon the land as 
 a member of his family only; and the 
 cultivation was by, or^for the the benefit 
 of, the father. AJfter the re-conveyance 
 the father Uved with the defendant who 
 resided upon and cultivated the land. 
 
 Held, tha,t the land was not exempt 
 from sale under the fi. fa^ The land 
 having once been bound by the writ did 
 not become exempt by the acts of the 
 defendant. McLatchie v. McLeod, 6 M.R. 
 452. , ■ 
 
 10. Lien on land not presently en- 
 forceable — Registered judgments — lAen on 
 land—Jvdgm^nis Act, R.S.M., 1892, c. 80, 
 sections 5 and 12. 
 
 The registration of a certificate of judg- 
 ment under section 5 of The Judgments 
 Act, R.S.M., c. 80, constitutes a lien and 
 charge on the lands of the judgment 
 debtor,' even although he actually resides 
 
427 
 
 EXEMPTION FROM TAXATION. 
 
 428 
 
 thereon, or cultivates the same either 
 wholly or in part, and the effect of section 
 12 of the same Act is simply that, so long 
 as that state of affairs continues, no pro- 
 ceedings can be taken to realize the judg- 
 ment out of the land. Re Frost and 
 Driver, 10 M.R. 319. 
 
 11. Seizure of goods for the price of 
 which the action was brought— Smt on 
 
 bill of exchange given for such price. 
 
 Goods generally exempted from seizure 
 under execution by virtue of section 29 
 of The Executions Act, R.S.M., 1902, c. 58, 
 but withdrawn from such exemption by 
 section 36 of the Act when the purchase 
 price of them is the' subject of the judg- 
 ment proceeded upon, are subject to 
 seizure although, the judgment has been 
 recovered only upon a bill of exchange for 
 the price accepted by the judgment 
 debtor. 
 
 Blacks on Executions, par 217; 18 Cyc. 
 196; 12 Am. & Eng. Ency, 175, followed. 
 
 Canada Law Book Co. v. , 17 M.R. 
 
 345. : 
 
 12. Selection of exemptions by as- 
 signee when assignor neglects to make 
 choice — Assignment for creditors — Assign- 
 ments Act,,B.S.M., c. 7, s. 3 — Executions 
 Act, B.S.M., c. 53, s. 43. 
 
 When a debtor merchant makes an 
 assignment in the form prescribed by The 
 Assignments Act, R.S.M., c. 7, of all his 
 stock-in-trade and personal property, etc., 
 liable to seizure under^ execution to a 
 trustee for creditors, the assignee has a 
 right to select such articles as would be 
 exempt under The Executions Act, R.S. 
 M., c. 53, s. 43, in the absence of a selection 
 by the debtor; and, if he appropriates and 
 sells only a portion of the property corning 
 under the head of any class of the statutory 
 exemptions and leaves to the debtor a 
 sufficient quantity of the same kind of 
 property to reach the prescribed value, he 
 will not be liable to an action for the value 
 or the proceeds of the portion sold. 
 Cloutier v. Georgeson, 13 M.R. 1. 
 
 See Chattel Moetgage, III, 1; V, 4. 
 
 — Estoppel, 4. 
 
 — Fraudulent Conveyance, 1, 3, 4, 9, 
 
 10. 
 
 — Fraudtjlbnt Pbbfe:^ence, III, 5. 
 
 — Homestead, 4. 
 
 — Pleading, IX, 1. 
 
 — Registeked Judgment, 2, 6, 8. 
 
 — Taxation, 3. 
 
 EXEMPTION FROM TAXATION. 
 
 See C. P. R. Lands, 1. 
 
 — Constitutional Law, 17. 
 ^- Municipality, VIII, 6. 
 
 — Taxation, 3. 
 
 EXHIBITS. 
 
 See Practice, XXVIII, 9. 
 
 EX PARTE APPLICATION. 
 
 See Practice, XXVIII, 22. 
 
 EX PARTE ORDER. 
 
 See Appeal from County Court, VI, 2. 
 
 — Examination on Appidavit, 4. 
 
 — Garnishment, I, 7. . ^j 
 
 — Practice, V, 3; XX, B , 6. 
 
 — , Referee in Chambers, 1. ' % 
 
 — Vendor and Purchaser, VII, 8. 
 
 EXPERT EVIDENCE. 
 
 See Evidence on Commission, 3. 
 — Will, III, 3. 
 
 EXPERTS. 
 
 ! Criminal Law, XVII; II. 
 
 EXPRESS COMPANY. 
 
 See Bailment, 3. 
 — Taxation, 2. 
 
 EXPRESSIO XTNIUS EST EXCLUSIO 
 ALTERIUS. 
 
 See Jurisdiction, 8. 
 
 EXPRESSUM FACIT CESSARE 
 TACITUM. 
 
 See Evidence, 19. 
 
429 
 
 EXPROPRIATION OF LAND. 
 
 430 
 
 EXFROFRIATiaN OF LAND. 
 
 1. Assessment by arbitrators of 
 value of land taken — Value at time of 
 making award or at date of by-law to 
 expropriate— Winnipeg Charter, ss. 823 — 
 826-. 
 
 Under section 825 of The Winnipeg 
 Charter", 1. & 2 Edward VII, o. 77, when 
 the City has passed a by-law for the 
 fepropriation of land for any purpose of 
 the City, but the land has not bgen entered 
 upon or used by the City, it is not bound 
 
 ■ by any award the arbitrators may make 
 as to the value of the land proposed to be 
 taken unless the award is, within three 
 
 "months thereafter, adopted by another 
 by-law; but, if the City exercises its power 
 of entering upon or using the land before 
 the making of the award, it would be 
 bound to carry out the purchase. 
 
 Held, that, in the former case, the 
 arbitrators should assess the value^iif the 
 land as at the time of making the award 
 and 'iiot as at the date of the by-law, if 
 values have changed in the meantime. 
 
 Prittie V. Toronto, (1892) 19 A.R. 503, 
 distinguished. 
 
 Order referring the matter back4o the 
 arbitrators to assess the value as of the 
 date of their previous award. Byerley 
 and Winnipeg, Be 20 M.R. 438. 
 
 2. Implied power to expropriate 
 lands. 
 
 - By 43 Vic.,,c._27, s. 2 (Man.), the plain- 
 tiff corporation had full power and author- 
 ity to construct a bridge across the Red 
 River, at such place within the City of 
 Winnipeg to such place in St. Boniface on 
 the opposite side of the River as they 
 
 • might deem advisable. No express power 
 to expropriate lands was given by the 
 Act. The plaintiEfs under this enactment 
 took lands of the defendant on the bank 
 of the River iti St. Boniface for one of 
 the abutments of the proposed bridge, 
 whereupon the defendant commenced an 
 action of ejectment against them, and this 
 bill was filed to restrain the defendant 
 from proceeding with the action of eject- 
 ment. 
 
 Held, Wood, C.J., dissenting, on de- 
 murrer to the bill of complaint, that the 
 plaintiffs, had no implied authority to 
 expropriate lands, though they were 
 absolutely necessary for the purposes of 
 the bridge. 
 
 Mayor and Council of the City of Winni- 
 peg V. Cauchon, T.W. 350. 
 
 3. Froceeding for — Arbitration and 
 award — Estoppel — Waiver — By-law author- 
 izing arbitration — Municipal law — Plead- 
 ing. 
 
 In a notice given under section 699 of 
 The Municipal Act of proceedings for the 
 expropriation by arbitration of the plain- 
 tiff's land, the defendants stated' that a 
 petition would be presented to fix a coni- 
 pensation to be paid to the plaintif for the 
 land required instead of that to be allowed 
 for the land, and the notice also differed 
 from the form directed by that section in 
 referring to the Judge of the County 
 Court of the "Eastern Judicial District," 
 instead of the "Judicial Division," within 
 which the land lies; but, the defendants 
 proceeded with the arbitration proceed- 
 ings and prociwed the award "of com- 
 missioners under that and following 
 sections of the Act, although they declined 
 afterwards to submit the award to the 
 Coimty Court Judge for confirmation. 
 
 In an action by'the plaintiff for a man- 
 damus to compel the defendants to- com- 
 plete the arbitration proceedings, and pay 
 the amount of the award. 
 
 Held, on demurrer, that the defendants 
 could not rely upon such shght differences 
 between the notice actually given- and the 
 notice provided for by the statute; that 
 such differences were mere irregularities 
 which were waived by defendants taking 
 subsequent proceedings, and that defend- 
 ants were also estopped from relying upon 
 such mistakes in the notice prepared and 
 served by than. 
 
 Held, also, that it was not necessary for 
 the plaintiff to "allege in his declaration 
 that a by-law had been passed by the 
 defendante authorizing the notice . of 
 arbitration in question: Harpelv. Portland, 
 17 U.C.R. 455, foUowed. 
 
 The count of the declaration setting up 
 a money demand by virtue of the award 
 was held bad, because the award had not 
 been confirmed by the County Coiu't 
 Judge. Scott V. City of Winnipeg, 11 
 M.R. 84. 
 
 See Arbitration and Award, 6. 
 
 — Municipality, VIII, 3. 
 
 — Public Parks Act. 
 
 — Railways, V; XI, 5. 
 
 — Sale op Land for Taxes, X, 6. 
 
 EXTENSION OF TIME. 
 
431 
 
 EXTORTION. 
 
 432 
 
 EXTORTION. 
 
 See Conviction, 1. 
 
 — Cbiminal Law, V, 
 
 — Duress, 1, 2. 
 
 EXTRADITION. 
 
 1. Evidence at hearing — Extrodition 
 Aet, R.S.C. 1906, c. 155, s. 16— Proof of 
 fcfreign law — Affidavit evidence, vse of — • 
 Orand larceny — Evidence of guilt, \ suf- 
 ficiency of— Criminal Code, s. 686. 
 
 1. Proof of the foreign law is not neces- 
 sary to show that "grand larceny" is 
 included in the crime of larceny mentioned 
 in the Extradition Treaty between the 
 United States and Great Britain. 
 
 In re Murphy, (1895) 22 A.R. 386, 
 followed. 
 
 2. When, at the close of the evidence for 
 the demanding country at the hearing of 
 an appUcation for extradition mider The 
 Extradition Act, R.S.C. 1906, c. 155, the 
 Judge calls on counsel for the accused for 
 his defence, a committal subsequently 
 made wiU not be set aside on habeas corpus 
 on the ground that the Judge did not 
 formally ask the accused if he wished to 
 call any witnesses as required by section 
 686 of The Criminal Code. 
 
 3. Notwithstanding the wording of 
 section 16 of The Extradition Acti affi- 
 davits sworn to in the foreign State may 
 be received and acted on in extradition 
 proceedings, following the practice adopted 
 in Counhaye Case, (1873) L.R. 8 Q.B. 410, 
 and in many Canadian cases. 
 
 4. When a charge of larceny is made in 
 respect of a sum of money alleged to have 
 been received by the accused from the 
 prosecutor to be accounted for and to 
 have been fraudulently converted by the 
 accused to his own use, sufficient prima 
 facie evidence of the payment by cheque 
 of the money to the accused is not given 
 without production of the cheque or the 
 
 I receipt given by the aScused, in' the 
 absence of any deposition of an official of 
 the bank on which the cheque was drawn. 
 Reg. V. Burke, (1889) 6 M.R. 121, and 
 Re Harsha (No. 1), (1906) 10 Can. Cr. 
 Cas. 433, followed. 
 
 The evidence contained in the affidavits 
 being in this respect and otherwise insuf- 
 ficient to establish a prima fade case 
 • against the accused, he was held entitled 
 to his discharge on habeas corpus. 
 Re Moore, 20 M.R. 41. 
 
 2. Evidence of innocence — Proof of 
 handwriting — Admissibility of confession. 
 
 Held, 1. That . evidence to disprove 
 the crime charged is inadmissible. 
 
 2. Admissibility and strength of evi- 
 dence as to handwriting discussed. 
 
 3. Admissibihty of confessions discussed. 
 Re Stanbro, 1 M.R. 263. 
 
 3. Evidence taken in shorthand. 
 
 Under section 13 of The Extradition Aot, 
 R.S.C. 1906, c. 155, which provides that 
 the Judge before whom the fugitive is 
 brought should hear the case in the same 
 manner as nearly as may be as if the 
 fugitive was brought before a justice 
 charged with an indictable offence, the' 
 proceedings are regelated by sections 682- 
 686 of The Criminal- Code and under 
 section 683, if the evidence i is taken in 
 shorthand, it is ^imperative that the 
 transcript be signed by the Judge and be 
 accompanied by an affidavit of the steno- 
 grapher that it is a true report of the evi- 
 dence before there can be a committal of 
 the accused for extradition, and, if these 
 be lacking, the prisoner is entitled to his 
 discharge on habeas corpus, although there 
 would be nothing to prevent fresh pro- 
 ceedings being taken against him. 
 ' In re Stanbto, (1884) 1 M.R. 325, and 
 Dale's Case, (1881) 6 Q.B.D. 376, fol- 
 lowed. Re Royston, 18 M.R. 539. 
 
 4. Form of taking evidence — Habeas 
 corpus. 
 
 Where prisoner was charged with an 
 extraditable crime and the evidence was 
 taken down in the narrative form on the 
 Judge's notes, and by way of question 
 and answer by m shorthand reporter 
 which were afterwards extended by the 
 reporter but were not read over to the 
 witnesses or signed by them, 
 
 Held, upon habeas corpus, that there was 
 no evidence — that is, no evidence that the 
 Court could look at — as proof of the 
 alleged crime. Re Stanbro, 1 M.R. 325. 
 
 5. Identity of charge— Foreign depo- 
 sitions—Condensed depositions — Evidence 
 for extradition— Accessories — ^tatvie passed 
 after Extradition Act. 
 
 The information upon which the original 
 warrant for the arrest of the prisoner 
 issued was sworn on the 20th June. It 
 was afterwards amended and re-sworn on 
 the 2nd July.. The prisoner in fact came 
 before the extradition Judge on the 26th 
 day of June. The caption of the evidence 
 given before the Judge stated that it was 
 
433 
 
 EXTRADITION. 
 
 / 
 
 434 
 
 taken in the presence of the prisoner, 
 "who is charged on the 26th day of June, 
 1889, and this day before me," &c. The 
 charge in the information and the caption 
 of the evidence were identical. ' 
 
 Held, that the evidence so taken could 
 be read in support of the information. 
 
 Foreign depositions may be read, al- 
 though not taken in the presence of the 
 prisoner. 
 
 Depositions were taken by a sten- 
 ographer before a grand jury in a foreign 
 country. From these a shorter statement 
 was made by an attorney, who swore that 
 he omitted nothing material. The wit- 
 nesses were then with this shorter state- 
 ment sent back to the grand jury. When 
 tendered in- evidence here, the depositions 
 " appeared to be properly certified as having 
 been signed and sworn to by the wit- 
 nesses. 
 
 Held, that such depositions were admis- 
 sible. 
 
 Foreign depositions more in the form of 
 affidavits than depositions may be admis^ 
 sible in evidence here. 
 
 The evidence necessary for extradition 
 must be ' as strong as (in the case of a 
 domestic offence) that necessary for com- 
 mittal for trial. 
 
 Upon appeal, the finding of the single 
 Judge as to the weight of evidence will 
 not be interfered with.^ 
 
 The foreman of a grand jury is an 
 "officer" who. can certify to depositions 
 in order that the same may be used here. 
 
 Dtjbttc and Killam,' JJ. — The offence 
 of being accessory to a murder is included 
 in the offence of murder under The Extra- 
 dition Act. 
 
 Tatlor, C.J. — In determining whether 
 the offence charged constitutes a crime 
 within The Extradition Act, the law of the 
 date of the offence governs and not that 
 of the time of the treaty. Reg. v. Burke, 
 6 M.R. 121. 
 
 6. Political crime. 
 
 The accused was a member of the social 
 democratic party in Russia, whose object 
 was not only to alter the form of govern- 
 ment but alfeo to do away with private 
 ownership of property. A propaganda 
 was carried on by them throughout the 
 country and many revolutionary outrages 
 had been committed by them. 
 
 The crime of which the accused was 
 charged was the killing of a constable, in 
 a d&rict where martial law had been 
 proclaimed and was in force, under the 
 following circumstances : 
 
 The accused and a comjjanion, strangers 
 to the locality, were staying at the house 
 of a resident, when the village constable 
 and a number of watchmen, hearing of 
 their visit, decided to take them to the 
 admimstratjve office to give an account 
 of themselves. When they got outside 
 of the house the accused shot and killed 
 one of the watchmen and he and his com-' 
 panion, being pursued, fired several more 
 shots at their pursuers but escaped. They 
 had not been accused of any offence and 
 were not taken' for any. 
 
 Held, that this crime, even although, 
 called in Russia, imder the circumstances, 
 a political crime, was not a crime of a 
 political character within the meaning of 
 the treaty between Great Britain and 
 Russia as it was not one committed in 
 furtherance of any pohtical object, and 
 that the prisoner should be remanded for 
 extradition. 
 
 ■ Re Castioni, [1891] 1 Q.B. 156, followfed. 
 - ReFedm-enko (No. 1), 20 M.R. 221. 
 
 7. Re(}uisition from foreign Govern- 
 ment — Extradition treaty vrith Russia, 
 articles" VIII and IX — Extradition Act, 
 R.S.C. 1906, s. 155, ss. 3, 10. 
 
 When under the terms of an Extradition 
 Treaty with a foreign government, as in the 
 case of the treaty with Russia printed in 
 the Canada Gazette for 1887 at page 1918, 
 Articles VIII and IX, a requisition from 
 that government for the surrender of a 
 fugitive is provided for as preliminary to 
 any proceedings for the arrest of the 
 fugitive, any such proceedings taken 
 without such requisition having been 
 made are entirely unauthorized, and the 
 fugitive, even aJEter he* has been com- 
 mitted for extradition by a Judge of this 
 Court, should be discharged upon habeas 
 corjms. Sections 3 and 10 of our Extra- 
 dition Act, R.S.C. 1906, c. 155, distinctly 
 provide that nothing in the Act which is 
 inconsistent with any of the terms of an 
 Extradition Treaty shall have effect to 
 contravene the treaty. 
 
 Re Lazier, (1899) '3 Can. Cr. Cas. 167, 
 26 A.R. 260, distinguished on the ground 
 that there was no corresponding pro- 
 vision iii the Extradition Treaty with the 
 United States. Re Fedorenko (No. 2), 
 20 M.R. 224. 
 
 Reversed, [1911] A.C. 735, where it was 
 held that, under Art. IX of the Extra- 
 dition Treaty with Russia, 1886, after a 
 requisition in due form, it is obligatory on 
 the authorities to arrest the fugitive • 
 
435 
 
 EXTRA-PROVINCIAL CORPORATION. 
 
 436 
 
 The Article does not provide that there 
 shall be no arrest till after requisition, 
 and is not inconsistent with s. 10 of The 
 Extradition Act. 
 
 8. Warrant of committal — Form of^ 
 
 Information— Amendment of — Duplicity — 
 
 Order in Council — Proof of — United States 
 
 -Local law of one State — Corroborative evi- 
 
 Judicial notice will be taken of Orders 
 in Council published with the Dominion 
 Statutes pursuant to R.S.C;, c. 2, s. 9. 
 
 Re Stanbro, 2 M.R. 1, followed. 
 
 A warrant of committal, imder The 
 Extradition Act, of , a fugitive to await 
 surrender to the iforeign state, after 
 reciting the apprehension of the accused, 
 that he had been brought before the 
 Judge, and that the Judge had determined 
 that he should be- surrendered, continued: 
 "on the ground of his being accused of the 
 crime of forgery and also of the crime of' 
 uttering what was forged within the 
 jurisdiction of the State of Ohio, one of 
 the United States of America, and of the 
 United States of America." 
 
 Held, that this was a sufficient descrip- 
 tion of the offences to show a ground of 
 detention under the statute. 
 
 Per Bain, J. — If it were a warrant Of 
 commitment for trial or for punishment 
 after conviction, it would be bad. ' 
 
 The information charged the accused 
 both with the forgery of a promissory note 
 and with the uttering of a forged note. 
 
 Held, that the information was not bad 
 for duplicity. 
 
 The information charged the accused 
 with forgery and uttering forged paper. 
 After a large part of the evidence was 
 given the information was , amended by 
 changing the words "to the intent thereby 
 then to defraud," in the charge of uttering, 
 to "with intent thereby then to defraud," 
 and the information was then resworn. 
 There was no new jurat. Further evi- 
 dence was then taken, but insufficient in 
 itseK to warrant a committal. 
 
 Held, that the amendment was on a 
 whoUy' immaterial point, and the extra- 
 dition Judge could proceed with the 
 inquiry under the original ajid amended 
 information, as one into reffly the same 
 charges, and use all the evidence thus 
 taken in deciding whether there were 
 sufficient grounds for committal. 
 
 The accused was charged with the 
 
 'offences of forgery and uttering forged 
 
 paper at the City of Toledo in the State 
 
 gf Ohio, one of the United States of 
 
 America. The evidence showed that 
 these offences were crimes under the 
 statute law of the State of Ohio, but that 
 there was no law of the United States as a 
 whole under which these offences would 
 be crimes. 
 
 Held, that these offences were within 
 the meaning of the Extradition Treaty 
 between Great Britain and the United 
 States. 
 
 Re Windsor, 6. B. & S. 522, commented 
 on. 
 
 Re Phipps, 1 O.R. 586, and Reg. v. 
 Burke, 6 M^R. 121, followed. 
 
 Per Bain, J. — In extradition proceed- 
 ings, the evidence of interested" parties 
 need not be corroborated. 
 
 Per KiLLAM, J.^-Semble, some evidence 
 should be given to shew that some reason- 
 able corroborating evidence, ^without 
 which there could never be a conviction, 
 was Ukely to be forthcoming upon the 
 trial. 
 
 Per KiLLAM, J. — The telegrams sent by 
 accused at the time of his arrest consti- 
 tuted some corroborating evidence. Re 
 McCartney, 8 M.R. 367. 
 
 EXTRA-PROVINCIAL CORPORA- 
 TION. 
 
 See C. P. R. Lands, 2. 
 
 FAILURE OF CONSIDERATION. 
 
 See Limitation op Actions, 1. 
 — Misrbpkesbntation, III, 2. 
 
 FALSE IMPRISONMENT. 
 
 1. Justification — Reasonable and prob- 
 able cause. ~ 
 
 The defendant, the Chief of Police for 
 the City of Winnipeg, went to the plain- 
 tiff's house, and while there an altercation 
 ensued, and the plaintiff appUed an 
 abusive epithet to the defendant; For 
 this, the defendant arrested the plaintiff 
 and locked him up, and on being brought 
 before a magistrate the plaintiff was con- 
 victed, but the conviction was^ quashed. 
 The plaintiff then brought this action for 
 false imprisonment and malicious prose- 
 cution. 
 
437 
 
 FALSE PLEADING. 
 
 438 
 
 Held, that, even assuming the use of 
 the abusive epithet to have been an 
 offence, the defendant was not justified 
 in arresting the plaintiff in his own house, 
 the law constituting it an offence only 
 when occurring on a public street, etc. 
 
 Held, also, that there was no reasonable 
 and probable cause for the prosecution of 
 the plaintiff. Fitch' v. Murray, T.W., 74. 
 
 2. Misdirection to jvay— Constable — 
 Assault — Self-defence. 
 
 In an action for malicious arrest and 
 false imprisonment against a constable, 
 the learned Judge charged the jury to say 
 whether the defendant acted in his own 
 defence, or committed the &st assault. 
 He also told the jury that the defendant 
 was acting in his.ofiicial capacity, and that 
 it was for them to find whether he acted 
 maliciously or bona fide. 
 
 fleW, " misdirection. Fitch v. Murray, 
 T.W., 74-. 
 
 3. Want of reasonable and probable 
 cause — Malice — Application for new trial 
 — Misdirection — Putting questions to jury — 
 Evidence as to character of plaintiff. 
 
 1. At the trial of an action for false 
 imprisonment, the Judge is not bound to 
 put to the jury specific questions, such as 
 "Did the defendants take reasonable care 
 to inform themselves as to the facts?", 
 "Did the defendants honestly beUeve 
 that the plaintiff was guilty of the offence 
 for which he was arrested?" but may, 
 with a proper charge, submit all the facts 
 to the jury, leaving them to return a 
 general verdict. 
 
 2. In charging the jury, the Judge should 
 not suggest to them that they might put 
 theinselves in the plaintiff's place, and 
 consider how much-they %ught in that case 
 to be paid: Hesse v. St. John Ry. Co., 
 (1899) 30 S.C.R. 218. But, as no objec- 
 tion had been raised as to the damages 
 allowed being excessive, the verdict should 
 not be disturbed on that ground. 
 
 3.Tlvidence to prove the bad character 
 of the plaintiff m such an action, was 
 properly rejected at the trial. Newsam v. 
 Carr, (1817) 2 Stark, 69; Jones v. Stevens, 
 (1822) 11 Price) 235, and Dovming v. 
 Butcher, (1841) 2 Mob. & R. 374, followed. 
 
 4. The Judge's charge to the jury that 
 it is necessary in such an action for the 
 plaintiff to prove malice as well as want 
 of reasonable and probable Cause was 
 wrong; but, although there was no evidence 
 of malice except as it might have been 
 inferred from the absence of reasonable 
 
 and probable cause, the misdirection was 
 not a ground for ordering a new trial, the 
 verdict not having been attacked as 
 excessive. 
 
 5. There is no ground for an action for 
 malicious prosecution unless the acts com- 
 plained of are the result of a complaint 
 laid before a magistrate: Austin v. 
 Bowling, (1870) L.R. 5 C.P. 534. 
 
 The plaintiff was arrested for theft of a 
 valise which had been left in the hall of a 
 hotel adjoining the bar-room, and, was, in 
 fact, removed by another person an J put 
 under a table in a near-by restaurant. 
 The plaintiff had been in the hotel hall 
 after the valise was left there, and before 
 it was removed. The hall was open to the 
 pubUc and there was no evidence as to 
 how many people, other than the plaintiff, 
 had entered it during the same period. 
 The plaintiff, afterwards went into the 
 restaurant and sat at the table under 
 which the -valise was, but did not know it 
 was theie. The arrest was 'made before 
 the valise was found. -^ 
 
 Held, that such facts were not sufficient 
 to justify the arrest of the plaintiff without 
 a warrant. Sinclair v. RuMell, 16 M.R. 
 53. 
 
 See Municipality, II, 1. 
 
 FALSE PLEADING. 
 
 See PuEADiNG, X, 6. 
 
 FATHER AND SON. 
 
 See Undue Influence. 
 
 FELON. 
 
 Property of convicted felon — Imp. 
 Act, 33 & 34 Vic., c. 2Z— Pleading— 
 Al egations of fraud. 
 
 Before the passing of the Imperial Act, 
 33 & 34 Vic, c. 23, by the law of England 
 all chattel property, including choses in^ 
 action,, possessed by a felon at the time 
 of his conviction or acquired thereafter 
 during the currency of his sentence, passed 
 to the Crown. 
 
 Qu(ere, whether the said Act, which also 
 prohibits a convict from suing and vests 
 the right to sue in an administrator, is in 
 
FELLOW SERVANT'S NEGLIGENCE. 
 
 440 
 
 force here^ Precision in pleading fraud 
 discussed. Haffield v. Nugent, 6 M.R. 
 547. 
 
 But see Young v. Carter, 26 O.L.R. 576. 
 
 FELLOW SERVANT'S NEGLIGENCE. 
 
 See Negligence, II. 
 
 FENCES. 
 
 Obligation to keep cattle from tres- 
 passing — Boundary Lines Act, B.S.M., 
 1892, c. 12, s. 4 — Possession as against 
 trespasser^Bight of action — Parties to 
 action. 
 
 The provision in section 4 of The 
 Boundary Lines Act, R.S.M., c. 12, viz.: 
 "Each of the parties occupying- adjoining 
 tracts of land shall make, keep up and 
 repair a just proportion pf the division or 
 line fence on the line dividing such tracts, 
 and equally on either side thereof," does 
 not supersede the Common Law liability 
 of an owner of cattle for all their trespasses 
 except such as are due to defects in ences 
 which the complainant is bound as 
 between himseU and such owner to keep 
 up; and such owner will be liable for the 
 trespasses committer! by his cattle unless 
 it is shown that the complainant was 
 bound to keep up and repair the particular 
 part of the fence through which the cattle 
 entered. The Common Law rule is not 
 displaced by a joint habihty to keep up 
 fences. 
 
 The injured crops were raised: by ,plain- 
 tiff who was in possession, but another 
 person had a haK interest in the crop. 
 
 Held, that sole possession by plaintiff 
 was suflEicient to support an action of 
 trespass and it was not necessary to make 
 the co-owner a party or to obtain any 
 release from him: Star v. Bookesby, (1711) 
 1 Salk. 335;6raham v. Peat C1801) 1 East, 
 246. Garrioch v. McKay, 13 M.R. 404. 
 
 See Animals Running at Large, 1, 2, 3. 
 — Railways, VI. 
 
 FI. FA. GOODS. 
 
 1. County Court execution-^Jnter- 
 
 pleader — Application of proceeds of sale by 
 
 Under a County Court execution, in this 
 case the bailiff seized an automobile and 
 was proceeding to sell It, when the sheriff 
 notified him that he held prior writs 
 against the defendant, and told the baUiff 
 that he would allow him to go on and sell, 
 ■if he afterwards paid the money to the 
 sheriff. 
 
 Upon an interpleader issue in the. 
 County Court between the plaintiff and 
 sheriff. 
 
 Held, that the bailiff in making the sale 
 was really acting for the sheriff, who 
 thereupon became ehtitled to the proceeds 
 ia the same manner as if he had seized. 
 Maw V. Moxam, 18 M.R. 412. 
 
 2. Priority — Execution^— Sheriff — Exe- 
 cutions Act, R.S.M. 1892, c. 53, s. 20. 
 
 Interpleader issue to try the question of 
 priority between two writs of execution 
 issued by the plaintiff and defendant 
 against the goods of,one Pope. 
 
 The plaintiff's execution was received 
 by the sheriff in 1894 ;without aiiy special 
 instructions, none had afterwards been 
 sent to the sheriff in any way and the writ 
 had been renewed according to the prac- 
 tice. The evidence showed that there 
 was an agreement or understanding 
 between the plaintiff and Pope, who was a 
 country merchant, that the execution was 
 not to be proceeded with until other 
 creditors pressed, and Pope continued to 
 carry on the business, bought other goods 
 from the three firms' for whom the plain- 
 tiff's judgment had bben obtained and 
 made payments on account, the plaintiff 
 and the creditors well knowing the debtor's 
 - circumstances. Neither the plaintiff nor 
 his attorney had made any inquiry as to 
 what the sheriff was doing or required him 
 
 in any way to proceed. 
 > 
 Held, following Pringle v. Isaac, 11 
 Price, 445, and Kimpland v. MacAuley, 
 1 Peake, 95, that the plaintiff's writ of 
 execution was not in the sheriff's hands to 
 be executed when seizure was made in 
 1896 under defendant's execution, and 
 that the latter had priority as it was issued 
 before the plaintiff gave special instruc- 
 tions for the sheriff tb proceed. The 
 absence of the words "to be executed" 
 from section 20 of the Executions Act 
 makes no difference in its construction. 
 
 Freeman on Executions, sec. 206, quoted 
 and approved. Hazley v. McArthur, 11 
 M.R. 602. 
 
441 
 
 FI. FA. GOODS. 
 
 442 
 
 3. Satisfaction of judgment — Amendr 
 ing sheriff's return. 
 
 Under plaintiff's judgment and execu- 
 tion 'the sheriff seized and sold certain 
 horses of the defendants. S. and M., 
 claiming to be mortgagees of the horses, 
 attended the sale and notified intending 
 purchasers. The horses having been sold, 
 the mortgagees brought trespass and 
 trover against the sheriff and recovered 
 against him the amount for which he had 
 sold the horses. 
 
 Plaintiff had indemnified the sheriff 
 against damage by reason of the seizure 
 and sale, and also by reason of payment 
 to him of the purchase money and, the 
 sheriff having paid over the money to the 
 plaintiff, the plaintiff paid the mortgagees 
 the amount of their verdict against the 
 sheriff. 
 
 Plaintiff then issued an alias fi. fa. 
 taking no notice of the return of the sheriff 
 to the previous writ of "money made and 
 paid to the plaintiff's attorney." 
 
 Held, that the new fi. fa. should be set 
 aside; satisfaction be entered up on the 
 judgment roll, and a summons to amend 
 the sheriff'.s return should be dismissed. 
 Hanna v. McKenzie, 6 M.R. 250. 
 
 4. Seiztire under execution — Eesidite 
 of. proceeds of sale — Garnishment — Priority 
 between garnishing creditor and execution 
 creditor — Effect of sheriff seizing after seizure 
 by landlord — Sale of goods — When property 
 passeST—Interpleader^Proof of judgment as 
 against third parties — -New trial— Costs. 
 
 The sheriff under a writ of fi. fa. goods 
 went to the premises of the judgment 
 debtors, w;ho were a firm of grocers, when 
 he found S. the landlord's bailiff in 
 possession under a, distress for rent, and 
 he gave the latter a warrant to hold for 
 him. The landlord's bailiff sold the goods 
 seized, by auction, to W. on Dec. 30th, 
 1891, for 32,021. W. paid a deposit of 
 S200. On 2nd January, 1892, M. & Co. 
 served a garnishing order on W. On the 
 morning of 3rd January, 1892, T., McK. 
 & Co. placed a second execution in the 
 hands of the sheriff. On the evening of 
 3rd January, W. took possession of the 
 goods. After paying the landlord and the 
 first execution, W. paid the residue of the 
 purchase money into court under the 
 garnishing order. An interpleader issue 
 was directed in which the garnishing 
 creditors were made plaintiffs, and the 
 execution creditors, defendants. At the 
 trial, the execution creditors proved the 
 
 writ of execution, but did not prove the 
 judgment, and the evidence was conflict- 
 ing as to whether the property in the 
 goods passed to W. on 30th . December, 
 the day of sale, or on 3rd January, the day 
 he took possession. 
 
 Held, that the property in the goods 
 was not taken out of the debtors by the 
 distress, and the placing of the execution 
 in the sheriff's hands bound the goods 
 subject to the distress. 
 
 The sheriff may make a quaUfied seizure 
 subject to the distress, which will be bind- 
 ing upon the execution debtor and those 
 claiming under him. 
 
 Belcher v. Patten, 6 C.B. 608, followed. 
 
 Held, also, that the purchase money 
 was owing to the landlord or his bailiff only 
 and that there was no privity between the 
 purchaser and the judgment debtors, and 
 no attachable debt owing from the pur- 
 chaser to the judgment debtors. 
 
 Evans v. Wright, 2 H.&N. 527, and 
 Yates V. Eastwood, 6 Ex. 805, followed. 
 
 Held, also, that the money having been 
 paid into court under the garnishing 
 order, the garnishing creditors had a 
 prima fade claim upon it and, notwith- 
 standing the form of the issue, the onv.s 
 was on^the execution creditors to prove 
 their claim. 
 
 Held, also, that the right of the second 
 execution creditors to the money depended 
 wholly on the time when the property in 
 the goods passed to the purchaser and, as 
 the evidence was conflicting and uncertain, 
 there should be a new trial upon that 
 point. 
 
 Held, also, that it was necessary for the 
 second execution creditors to prove, as 
 against third parties, a judgment as well 
 as an execution. 
 
 A new trial was directed, without costs 
 to either party. 
 
 Per KiLLAM, J. — ^The second execution 
 creditors, having failed to prove their 
 judgment, should pay the costs. Mac- 
 donald v. Cumrnings, 8 M.R. 406. 
 
 See Assignment roH Benefit op Cred- 
 itors, 3. 
 
 — Bills op Sale, 2. 
 
 — Chattel Mortgage, II, 1; III, 1. 
 
 — Fixtures, 1. 
 
 — Husband and Wipe, I, 1. 
 
 — • Landlord and Tenaot, IV, 1. 
 
 — Partnership, 6. 
 
 — Practice, VIII; XX, A, 1, 2. 
 
 — Shbripp, 3, 5, 6. 
 
 — Statute op Frauds, 6. 
 
 — Trespass and Trover, 2. 
 
 I 
 
443 
 
 FI. FA. LANDS. 
 
 444 
 
 FI. FA. LANDS. 
 
 See Exemptions, 9. 
 
 — FBATJDtTLENT CONVEYANCE, 8.- 
 
 — Gabnishmbnt, VI, 2. 
 
 FINAL JUDGMENT. 
 
 • See Practice, X, 1; XXIV, 3. 
 
 FINAL ORDER OR JUDGMENT. 
 
 See Appeal from Cottntt Court, VI, 1. 
 — Appeal to Supreme Court, 4. 
 
 FINDINGS OF JURY. 
 
 See Negligence, I, 2. 
 
 FIRE. ' 
 
 1. Damages — Negligence. \ 
 
 The plaintiff's claim" was for damages 
 by fire occasioned by the use of the defend- 
 ant's steam thresher, but the jury found 
 that the defendant was not guilty of 
 negligencer .^ 
 
 Held, that where a person uses fire in 
 his field in a customary way for the. pur- 
 poses of agriculture, or other industrial 
 purposes, he is not hable for damages 
 arising from the escape of the fire to other 
 lands, unless the escape 5 due to his 
 negligence; and that the plaintiff could 
 not recover. Owens v. Burgess, 11 M.R. 
 75. 
 
 2. Damages- 
 
 The defendants, having used fire to 
 bum a ring or guard round some of the 
 hay stacks on their farm, took measures ' 
 to, as they thought, effectually put it out 
 before leaving it; but high winds having 
 prevailed during the next two days some 
 smouldering embers were blown into flame 
 and spread to the plaintiff's property, 
 causing damage to him? 
 
 The trial Judge found as a fact that the 
 defendants had not been guilty of negli- 
 gence, having used every reasonable, pre- 
 caution to extinguish the fire, and having 
 had reason to_ believe that it was com- 
 pletely .extinguished. 
 
 Held, that the defendants' use of fire 
 under'the circumstances was a customary 
 one for purposes of agriculture in Mani- 
 toba, and was even justified by The TTires 
 Prevention Act, R.S.M., c. 60, and that, 
 as they had not been guilty of negligence, 
 they were not liable to the plaintiff for the 
 damages claimed. 
 
 Owens -v. Burgess, (1896) 11 M.R. 7.5, and 
 Buchanan v. Ymmg, (1873) 23 U.C.C.P.. 
 101, followed. Chkz v. Les Cisterdens 
 .Beformes, 12 M.R. 330. 
 
 3.^ Haxnas^i— Negligence. . 
 
 The defendant, who was vei^ short- 
 sighted,, while examining a fence on his 
 land, observed on the prairie near him a 
 pile of ashes and some fragments of 
 partially burned willow roots. Imagining 
 he saw smoke, he moved the ashes with 
 his foot to ascertain whether or not there 
 was fire. As he did so, the wind, then 
 blowing very strongly, carried the burn- 
 ing embers into the long grass adjoining, 
 whicli at once took fire. He then started 
 to beat the fire out, and, as the burning 
 grass was in a measure isolated by a strip 
 of burned over ground on one side and by 
 short grass on the other, he succeeded, as 
 he beheved, in preventing the fire spread- 
 ing and in finally extinguishing it. 
 
 Hdd, that, even if the fire which, on the 
 same day, destroyed the plaintiff's prop- 
 erty was caused by the fire which defendant 
 started, as to which there was grave doubt, 
 the defendant had not been guilty of negli- 
 gence and was not liable to the plaintiff for 
 damages. 
 
 Owens V. Burgess, (1896) 11 M.R. 75, and 
 Chaz V. Jjes Cisterdens Reformes, (1898) 
 12 M.R. 330, followed. HolUday v. 
 Bussian, 16 M.R. 437. 
 
 See Contract, VIII, 4. 
 
 — Negligence, III. 
 
 — Railways, VII, 2. 
 
 — Sale op Goods, I, 2. 
 
 FIRE INSURANCE. 
 
 1. Carpenter's risk — Repayment — 
 Condition — Procffs of loss — Condition pre- 
 cedent — Construction of relative iuords. 
 
 Declaration upon a policy of fire, insur- 
 ance, which recited that the plaintiff had 
 paid the sum of $106 and also the addi- 
 tional sum of $2.25 for insuring against 
 loss by fire, and especially any loss arising 
 from carpenters, &c., being employed upon 
 
445 
 
 FIRE INSURANCE. 
 
 446 
 
 the premises. Another count was upon 
 an interim receipt which recited an appli- 
 cation for insurance against loss by fire 
 and especially any loss arising from car- 
 penters, &c., being employed upon the 
 premises, and payment of the $106 and 
 also the additional siun -of $2.25 with a 
 provision on the issuing of the policy for 
 cancellation of the receipt. Both the 
 policy and the receipt were alleged to be 
 subject to a condition that the Company 
 would not be answerable for loss by fire 
 in or of any buildings imder construction 
 wherein carpenters were employed unless 
 the special consent of the Company in 
 writing was first obtained and endorsed 
 upon the policy. 
 
 To these counts the defendant pleaded 
 (Zth plea) that after making the policy 
 and before loss, and also (18th plea) after 
 the granting of the receipt and before 
 loss, the plaintiff had employed in the 
 buildings carpenters, &c., without having 
 obtained, and having endorsed on the 
 policy, the consent in writing of the 
 defendant. 
 
 Held, 1. That the condition as to" the 
 employment of carpenters was not repug- 
 nant to the contract, and did not itself 
 constitute a consent of the Company as 
 stipulated for by the condition. 
 
 2. That the pleas were bad becS,use they 
 did not allege the employment of the car- 
 penters at the time of the occurrence of 
 the fire. 
 
 A policy was sijbject to the following 
 condition: — "Persons sustaining any loss 
 or damage by fire are forthwith to give 
 notice thereof in writing at, &c.,/ . . . 
 and are within fourteen days after the 
 loss, to deliver in writing, in duplicate, a 
 particular statement and account of their 
 loss.. &c., .... the aasured's title 
 or interest therein, and the names and 
 residences of all other parties (if any) 
 interested therein, &c., . . \ whether 
 any other insurance, &c.,^ .... also 
 stating in what maimer .... the build- 
 ing insured was occupied at the time of the 
 loss .... and when and how the 
 fire originated as far as the assured may 
 know or beUeve; and the assured shall 
 verify such statement, &c., and, until such 
 accounts, declaration, testimony, vouchers 
 and evidence as aforesaid, are produced 
 and examined (if required) and such 
 explanations sriven, no money shall be 
 payable by the Company under this 
 poficy, .... and if the claim shall 
 not, for the space of three months after the 
 occurrence of the fire, be in all respects 
 
 verified in manner aforesaid, the assured 
 shall forfeit every right to restitution or 
 payment by virtue of this policy, and 
 time shall be of the essenceof the contract, ' ' 
 
 Held, 1. That the delivery of the state- 
 ment and account within the 14 days was 
 a condition precedent to the assmed's 
 right to recover. 
 
 2. That the words in the condition, "as 
 faf as the assured may know," related to 
 "when and how the lire originated," and 
 not to all the preceding requirements of 
 the condition. Morrison v. The City of 
 London Fire Insurance Co.) 6 M.R. 225. 
 
 2. Notice of loss — Condition requiring 
 notice of loss to be gioen in writing forth- 
 with— PUading — King's Bench Act, Rule 
 315 A. 
 
 Held, per Metcalfe, J. at the trial 
 
 1. A provision of a fire insurance policy • 
 requiring the insured to give notice in 
 Writing of any loss to. the company forth- 
 with as a condition precedent to the 
 liability of the company must be strictly 
 complied with; and, if the insured fails to 
 give such notice, he cannot recover on the 
 policy, even in a case where the company 
 was advised of the loss on the same day 
 by a telegram from its agent, and he at 
 once employed a professional adjuster to 
 investig,ite the loss and report to the 
 company. 
 
 BeM Bros. v. Hudson's Bay Insurance 
 Co., (1909) 2_glask. 355, followed. 
 
 2. The receipt by the company of a 
 statutory declaration by the in-sured, 
 giving particulars of the loss, 17 days 
 after the fire, was not a con^llance with 
 the condition requiring notice in writing 
 "forthwith." 
 
 The Queen v. Justices of Berkshire, (1878) 
 4. Q.B.D. per CocKBtTRN, C.J., at p. 471, 
 and Atlas v. Brownell, (1899) 29 S.C.R. 
 545, followed. 
 
 The defendants had in their pleading 
 alleged the condition relied on to be that 
 the plaintiff * * * "should forthwith give 
 notice of the alleged damage and loss to 
 the defendants at their office." 
 
 On appeal. 
 
 Held, per Howell, C.J.A., and Pbrdtte,' 
 J.A., that the defendant had not strictly 
 set up the conditions of the policy in- 
 tended to be reUed on, which differed 
 materially from that set up by the plead- 
 ing, and had therefore failed to comply 
 with Rule 315 A added to the King's 
 Bench Act by 7 & 8 Edw. VII, c. 12, s. 10, 
 and that the appeal should be allowed, 
 but without costs, as the point had not 
 
447 
 
 P*IRE INSURANCE 
 
 448 
 
 > been taken at the trial xx in the grounds 
 of the appeal. 
 
 Held, per Richards and Cameron, JJ.A., 
 that the condition of the policy had been 
 set up with sufl&oient distinctness and 
 that, at all events, it was too late to 
 object to the plea on the ground Uirged 
 for the first time otf the argument of the 
 appeal, and that the appeal should be 
 dismissed. • 
 
 The Court being evenly divided," the 
 appeal was dismissed without costs. 
 Prairie City Oil Co. v. Standard Mutual 
 Fire Ins. Co., 19 M. R. 720. 
 
 Reversed sub nom. Lewis v Standard 
 Mutual, Fire Insur. Co., 44 S.C.R. 40. See 
 next case. 
 
 3. Statutory conditions-rGasoKne on 
 
 .premises — llluminatinq oils insured — No- 
 
 - ^ tice of loss — Remedial clause in Act-^Dis- 
 
 a-etion of Court— Construction of Statute' 
 
 —B.S.M. (1902) c. 87. 
 
 By the Manitoba Fire Insurance 
 .PoUcy Act, R.S.M. 1902 c. 87, Sch., an 
 ' insurance company insuring against loss 
 by fire is, not liable "for loss or damage 
 occurring while * * * gasoline * * * is 
 stored or kept in the building insured or 
 containing the property insured unless 
 permission is giveta in writing by the 
 company," Insurance was effected "on 
 stock consisting chiefly of illuminating 
 and lubricating oils, etc., and all other 
 goods kept by them for safe." A quantity 
 of gasoline was in the building containing 
 the stock when destroyed by fire. 
 
 Held, that gasoline, being an illumin- 
 ating, oil, was part of the stock insured 
 and the above statutory condition could 
 not be invoked to defeat the policy. 
 
 Held, per Anglin, J., that if gHsoline 
 was not insured as an illuminating oil it 
 was within the description of "all other 
 goods kept for sale." 
 
 By section 2 of the Act, "where, by 
 reason of necessity, accident or mistake, 
 the conditions of any contract of fire 
 insurance on property in this province as 
 to the proof to be given to the insurance 
 company after the occurrence of a fire 
 have not been strictly complied with * 
 * or where from any other reason the 
 court or judge before whom a question 
 relating to such insurance is tried or 
 inquired into considers it inequitable that 
 the insurance should be deemed void or 
 forfeited by reason of imperfect compliance 
 with such conditions," the company shall 
 not be discharged from liability. ~- 
 
 By statutory condition 13 (a) in the 
 schedule to the Act every person entitled 
 to make a claim "is forthwith after loss to 
 give notice in writing to the company." 
 
 Held, FiTZPATRiCK, C.J., dissenting, that 
 the above clause applies to said condition 
 and imder it, in the circumstances of this 
 case, the insurance should be held not to 
 be forfeited by reason of the failure to 
 give such notice. 
 
 Judgment appealed from (19 M. R. 
 720) reversed, Fitzpatrick, C.J. dissent- 
 ing. Levns v. Standard Mutual Fire Ins. 
 Co., 44 S.C.R. 40. 
 
 4. Other insurance — Condition as to 
 other insurance urithout consent'^ Nature of 
 contract entered into hy interim receipt— - 
 Payment of premium in cash — Estoppel. 
 
 B., having a policy of insurance in the 
 Manitoba Assurance Co. for $2,000 on his 
 stock in trade, wrote to D., a sub-agent 
 of the Royal Insurance Co., informing 
 him that he had a stock of over $5,000 
 which was insured for $2,000 in the Mani- 
 toba Co., that people had told him it was 
 a weak company, that he was going to 
 abandon that insurance, and that he 
 wished to insure in the Royal Co. for 
 about $3,000. D, replied that he would 
 be glad to have his insurance and re- 
 questing him to send $75 for the premium. 
 B. then wrote that he could not pay the 
 amount- at once but would do so later, in 
 reply to which D. sent/iim a promissory 
 note for $51 and asked him to sign the 
 note and return it with a cheque for $25. 
 This was done and D. sent B. the usual 
 interim receipt of the Royal Co., promising 
 the subsequent issue of a policy which was 
 to be subject to the conditions indorsed 
 on the receipt. These were the usual 
 statutory conditions without alteratioij or 
 addition, one Of which (the 8th) provided 
 that the policy should be void if there 
 was any prior insurance on the property 
 unless the consent of the company was 
 indorsed thereon. D. discounted the note 
 -for $51 and accounted to the Royal Co. 
 in due course for the full amount of the 
 premium. The goods insured were de- 
 stroyed by fire before the due date of the 
 note, which B. paid at its maturity. 
 There was no formal application for the 
 insurance sigiled byB. or by any one by 
 his authority, although D. sent, the 
 company an application form filled up but 
 not signed, in which the question as to 
 other insurance was answered "No" by 
 D. A, policy was subsequently made out 
 
449 
 
 FIRE INSURANCE. 
 
 450 
 
 upon this application and sent to D. 
 before the file, but it was never delivered. 
 
 B. having become insolvent made an 
 assignment to the plaintiffs, who brought 
 these actions upon, the two insurances.. 
 The Royal Co. defended on the ground 
 that there was a prior insurance on the 
 insured property without its oonsentj^ and 
 the Manitoba Co. objected to pay on the 
 ground that B. had effected a subsequent 
 insurance on the property in the Royal 
 without notice to it and relied on the 8th 
 statutory condition indorsed on its policy. 
 
 Held, (1) That under the circumstances 
 B.'s statement that he was going to 
 abandon the insurance in the Manitoba 
 Co. was not merely a representation or 
 expression of intention, but was a term or 
 condition that affected the very existence 
 of the proposed insurance in the Royal, 
 which was not to become effective until 
 that condition was fulfilled, and that, as 
 B. never did so abandon, there never was 
 any effective insurance on his goods in 
 that company and that the verdict in 
 its favor was right. 
 
 (2) That it followed from this that the 
 Manitoba Co. could not set up the con- 
 ditional contract of insurance in the Royal 
 ' as a breach of the statutory condition; 
 and that the verdict in plaintiff's favor 
 against it should stand. "^ 
 
 Commercial Union Ass. Co. v. Temple, 
 (1898) 29 S. C. R. 206; Western Ass. Co. 
 V. Tempk, (1901) 31 S. C. R. 373, followed. 
 
 Held, also, per Killam, C.J., (1) That 
 D.'s authority to bind the Royal Co. by 
 the issue of the interim , receipt was 
 limited to cases in which the premium was 
 paid in cash: London and Lancashire Life 
 Ass. Co. V. Fleming, [1897] A. C. 499, and 
 Canadian Fire Insurance Co. v. Robinson, 
 31 S.C.R. 488, but qucere whether defend- 
 ants should be permitted to avail them- 
 selves of this defence in view of the 
 circumstances. 
 
 (2) That the right of "Action against an 
 insurance company upon an interim 
 receipt still depends, as it did before the 
 fusion of law and equity, upon the right 
 to a specific performance of the agreement 
 which it involves to issue a policy or 
 other contract in binding form, such 
 receipt being, in general, only an executory 
 contract and not one which would have 
 been enforceable at law under the former 
 practice. 
 
 (3) That, in view of the statements in 
 B.'s letters to D., which constituted the 
 only application there was for the ia- 
 
 surance, the case should be treated upon 
 the basis that, either there ^yas not to be 
 a contract concluded until the prior 
 insurance had been abandoned, or it was 
 a condition of the executory contract 
 that it should be abandoned, and that,' 
 as it had not been abandoned, the company 
 could not be bound to issue a policy, 
 except one with their usual conditions 
 makmg it void if there was a prior insur- 
 ance without their consent, aiid, therefore, 
 that the plaintiff was not entitled to 
 recover upon the interim receipt. 
 
 (4) That neither the making of a claim 
 by B. for the subsequent insurance, his 
 putting in of proofs of loss thereunder, nor 
 the bringing of an action thereon, created 
 any estoppel in favor of the Manitoba Co., 
 and B.'s statement in his proofs of loss 
 sent in to that company that "there was 
 no other insurance on the property at the 
 time of the fire excepting a policy in the 
 Royal Insuran~be Co. for $3,000," did not 
 prevent him from showing that the in- 
 surance in the Royal was never completed 
 so as to bind it. B. and the plaintiffs 
 were placed in such a position that they 
 had to claim for both, insurances; for, if 
 they had elected to claim from one company 
 only, they ran the risk of losing the one 
 from which they could recover, and it 
 should be held that they were entitled to 
 recover from the Manitoba Co., if, as a 
 matter of fact, there was no subsequent 
 binding contract for concurrent insurance. 
 An erroneous claim that there was did 
 not change the facts. Whitla v. Royal 
 Insurance Co.; Whitla v. Manitoba 
 Assurance Co. 14 M. R. 90. 
 
 Both judgments reversed, 34 S.C.R. 
 191, where it was 
 
 Held, that, as the Royal Insurance 
 Company had been informed, through 
 their agent, of the prior insurance 
 by B. when effecting the substituted 
 insurance, they must be assumed to 
 have undertaken the risk, notwith- 
 standing that such prior insurance had 
 not been formally abandoned, and 
 that the Manitoba Assurance Company 
 were relieved from liability by reason of 
 such substituted insurance being taken 
 without their consent. 
 
 Held, further, that, under the circum- 
 stances, the fact that B. had made claims 
 upon both companies did not deprive 
 him or his assignees of the right to re- 
 cover against |the company liable upon 
 the risk. 
 
451 
 
 FIRE INSURANCE. 
 
 452 
 
 The Chief Justice dissented from the 
 opinion of the majority of the Court 
 which held the Royal Insurance Company 
 liable and considered that, under the 
 circumstances, B. could not recover 
 against either Company. Mavitnhn Ass. 
 Co. V. Whiila, Royal Ins. Co. v. WhUla, 
 34 S.C.R. 191. 
 
 6. Storing or keeping of gasoline on 
 premises — Excessive claims for loss as a 
 defence to action on policy — Provision in 
 policy for settlement of amount of loss by 
 arbitration. 
 
 1. The proper construction to be given 
 to the words "stored or kept,",in a con- 
 ditipn of a.fire insurance policy' providing 
 against liability of the company for loss 
 or damage occurring while gasoline, &c., 
 is stored or kept on the premises,, is that 
 they do not apply to a small quantity 
 kept on hand for domestic purposes but 
 import the idea of warehousing or de- 
 positing for safe custody or keeping in 
 stock for trading purposes. 
 
 Thompson v. Equity Fire Ins. Co., [1910] 
 A.C. 592, reversing 41 S.C.R. 491, followed. 
 
 2. A clause in a pohcy of fire insurance 
 providing for the settlement of the amount 
 of the loss or damage suffered by the 
 insured by arbitration whether the right 
 to recover is disputed or not and inde- 
 pendently of all other questions, unless 
 naade by the policy a condition precedent 
 to the right to bring an action, will not 
 prevent the insured from suing without 
 taking any steps towards ^uch arbitration. 
 
 Scott v^ Avery, (1856) 5 H. L. Cas. 811, 
 and Caledonian Ins. Co. v. Gilmour, [18931 
 A.C. 85, foHowed. 
 
 The goods," insured for $1000, were 
 valued at S1400 in the application. After 
 the fire the plaintiff, in his proofs of loss, 
 swore that his loss was $2359.50,~ but the 
 trial Judge estimated the loss at only S400. 
 
 Held, that this inflation of values was 
 not fraudulent to the e.Ktent of vitiating 
 the policy, or the plaintiff's claim under it. 
 Patterson v. Central Canada Ins. Co., 20 
 M. R. 295. 
 
 6. Variations from statutory con- 
 ditions — Fire Insurance Policy Act, Ii.S. 
 M. (1892), c. 50— Proofs of loss— Interest— 
 Valuation of property— Waiver — Estoppel. 
 
 Defendants objected to the plaintiff's 
 claim for loss of property insured under 
 a policy of fire insurance issued by defend- 
 ants on the ground that at the time of the 
 
 loss a portion of plaintiff's note given for 
 the premium for the insurance was 
 unpaid, and relied on a condition indorsed 
 on the policy that the company should 
 not be liable for any loss or damage that 
 might occur to the property mentioned 
 while any promissory note or obligation 
 or part thereof given for the premium 
 remained due and unpaid. 
 
 What purported to be the statutory 
 conditions, .prescribed by The Fire Insur- 
 ance Policy Act, R.S.M., c. 59, were 
 printed on the back of the policy, and fol- 
 lowing these, under the heading "Varia- 
 tions in Conditions," were several other 
 conditions including the one relied on by 
 defendants printed in ink of a different 
 color but in type of apparently the same 
 size as that of the statutory conditions, 
 which .the Judge held was not con- 
 spicuous type within the meaning of the 
 Act. 
 
 The conditions jjrinted on the policy 
 also differed in several important par- 
 ticulars from the words found in the 
 statute; and, after the heading "Variations 
 -in Conditions," the Company had omitted 
 to print the part of the heading prescribed 
 by section 4 of the Act, "This policy is 
 issued on the above statutory conditions, 
 with the following variations and addi- 
 tions," or any other words to the same 
 effect. 
 
 Held, following Sly v. The Ottawa Agri- 
 cultural, c, Co., (1878) 25 U.C.CP. 28 r 
 Sands v. Standard Ins. Co., (1879) 27 
 Gr. 167, and BaXlagh v. Royal Mutual Fire 
 Insurance Co., (1880) 5 A.R. 87, that the 
 requirements of the statute were impera- 
 tive, and that plaintiff was not bound by 
 the condition on which the defendant 
 relied. 
 
 The policy contained in the body of it 
 the words, "The company is not respon- 
 sible for loss caused by prairie fires," and 
 defendant contended that, as plaintiff had 
 alleged the contract of insurance to be an 
 absolute one, he could not recover without 
 an amendment setting up the policy cor- 
 rectly and proof that the loss was not 
 caused by a prairie fire. 
 
 Held, that such qualification or excep- 
 tion to the absolute contract of the Com- 
 pany must be regarded as a condition of 
 the insurance within the meaning of the 
 Act, and that, as it was not one of the 
 statutory conditions, it would be legal and 
 binding on the assured only if it were 
 indicated and set forth on the policy in 
 the manner prescribed by the Act, which 
 
453 
 
 FIRE LIMITS BY-LAW. 
 I 
 
 454 
 
 it was not, and in pleading the plaintiff 
 might ignore it altogether as he had done. 
 
 The defendants also objected at the 
 trial to the sufficiency of the proofs of 
 clailn; but, although they had objected to 
 payment of the loss on other grounds than 
 for imperfect compliance with the con- 
 ditions regarding proofs of lo.ss, they did 
 not notify the plamtifE in writing that his 
 proof was objected to. 
 
 Held, that, under section 2 of the Act, 
 they could not now take advantage of 
 any defect in the proofs. 
 
 Held, also, that the plaintiff was en- 
 titled, mder 3 & 4 Wm. IV., c. 42, s. 29, 
 to interest on the insurance money, but 
 only from the expiration of thirty days 
 from the time he sent in his corrected and 
 completed proofs of loss, as lie thereby 
 admitted that his first proofs were imper- 
 fect. 
 
 Held, further, that the, insured was not 
 • precluded from showing what the real 
 value of the property insured was by the 
 fact that he had, under peculiar circum- 
 stances, offered to sell it for less than the 
 amount insured on it. Green v. Manitoba 
 Ass. Co., 13 M.R. 395. 
 
 See CoNTKACT, VIII, 4. 
 
 — Garnishment, V, 2. 
 
 — Negligence, III; VII, 7. 
 
 — Railways, VII, 3. 
 
 FIEE LIMITS BY-LAW. 
 
 See MtTNiciPALiTY, I, 2. 
 
 FIXTURES. 
 
 1. Buildings erected by squatter on 
 JJoniinion lands — Execution against goods. 
 
 The plaintiff sued for the delivery of 
 certain buildings erected by the' defendant 
 upon land, the title to which was, at the 
 time of such erection, and continued to be 
 in the Crown. 
 
 The plaintiff claimed title through a 
 sale made to her under an ejcpcution 
 issued from the County Court on a judg- 
 ment, under which execution the bailiff 
 purported to sell the buildings as chattels 
 of the defendant. 
 
 -The defendant had erected the build- 
 ings about 19 years previously, and had 
 lived in them untU 1896. He did not 
 actually reside in them at the time of the 
 
 seizure under execution, but took posses- 
 sion again before this action was brought. 
 The buildings were not so affixed to the 
 freehold as to require that anjrthing 
 should be broken or separated by force in 
 order to remove them. 
 
 Held, on appeal from the decision of 
 Richards, J., 22 C.L.T. Occ.N. 374, that 
 the buildings were fixtures to the land, 
 having become part of the freehold which 
 was the propertjr of the Crown, and they 
 could not be seized under an execution 
 from the County Court. Dixon v. Mac-- 
 ■ hay, 24 C.L.T., Occ.N. 28; 21 M.R. 762. 
 
 2. Conditional sale of chattel — Lien 
 note — Purchaser without notice: 
 
 If a purchaser of a chattel sUch as a 
 furnace annexes it to land in such a 
 manner that it would ordinarily become 
 a part of the realty, it cannot be deemed 
 to remain a chattel because of an agree- 
 ment between the purchaser and the 
 vendor that, until paid for, the property 
 in it should remain in the vendor, and that, 
 in case of default of payment, the vendor 
 might Hetach it and take it away; 
 
 Such an agreement merely confers a 
 license to enter on the land and sever what 
 is no longer a chattel so as to make it 
 again a chattel and to remove it, and a 
 purchaser of the realty without notice of 
 the agreement is not bound by it, nor can 
 the vendor of the chattel. recover posses- 
 sion of it or damages for its conversion 
 from him. 
 
 Hobson V. Qmringe, [1897] 1 Ch. 182, 
 and Reynolds v. Ashlyy, [1904] A.C. 466, 
 followed. 
 
 Walercms v. Henry, [1884] 2 M.R. 169, 
 and Vidcan Iron v. Rapid City, [1894] 9 
 M.R. 577, overruled. Andreios v. Brown, 
 19 M.R. 4. 
 
 3. Conditional sale of machinery 
 afterwards affixed to freehold of third 
 party — Right of unpaid vendor to recover 
 possession — Estoppel by taking proceedings 
 under Mechanics' Iden Act. 
 
 W. & Co., having a contract to build an 
 elevator for the defendants, purchased an 
 engine, boiler and other machinery from 
 the plaintiffs on the terms that the owner- 
 ship was not to pass until payment in full 
 of the price %hich was to be paid in cash 
 on delivery, and that in case of default in 
 payment the plaintiffs were to be "at 
 liberty, without process of law, to enter 
 upon our premises and take down and 
 remove the said machinery." Plaintiffs 
 
455 
 
 FIXTURES. 
 
 456 
 
 were aware that the machUiery was to be 
 placed ia the defeijdants' elevator. 
 
 It was biiilt into the elevator in such a 
 manner that it would have become part 
 of the freehold if both had been owned by 
 the defendants, but the evidence showed 
 tha-t it could be removed without doing 
 serious damage to the building. 
 
 Plaintiffs first took proceedings under 
 the Mechanics' Lien Act to realize the 
 amount of their claim, but afterwards 
 aba,ndoned thein. In the present suit the 
 plaintiffs asked that the defendants might 
 be ordered to deUver up the machinery, 
 and to permit the plaintiffs to enter the 
 elevator and take down and remove the 
 machinery jifand for further and other relief. 
 
 Held, that the plaintiffs were entitled to 
 rehef, but without deciding whether they 
 should have permission to enter the 
 defendants' premises and remove the 
 machinery or not, as they were willing to 
 accept a decree for payment of the value 
 of the machinery, to be ascertained by a 
 reference to the Master, and it was so 
 ordered. 
 
 Poison V. Degeer, 12 O.R. 275; Stevens 
 V. Barf oat, 13 A.R. 367, and Wgierous 
 Engine Co. v. Henry, 2 M.R. 169, fol- 
 lowed. 
 
 Held, also, that the plaintiffs were not 
 estopped by having commenced proceed- 
 ings under the Mechanics' Lien Act, as 
 they had not gone on to judgment. 
 
 Pnestly v. Pemie, 3 H. & C. 977, dis- 
 tinguished. Vulcan Iron Works Co. v. 
 Rapid City Farmers' Elevator Co., 9 M.R. 
 577. 
 
 Overruled, Andrews v. Brown, 19 M.R. 
 4, ante. 
 
 4. Machinery — Mortgagee and execu- 
 tion breditor — Interpleader—Question wheth- 
 er machinery part of realty. 
 
 In the absence of evidence of a contrary 
 intention, machines aflfixed to the freehold 
 merely for the purpose of steadying them, 
 and used for the purpose of a manufactur- 
 ing business for which the freehold is 
 occupied, and to which it is devoted, 
 become part of the freehold, even though 
 the mode of affixing them is such that they 
 can easily be detached without injury 
 either to themselves or to the freehold. 
 
 In the absence of evidence of a contrary 
 intention, similar pieces of machinery 
 standing on the freehold, but not affixed 
 to it, except by the leathern bands com- 
 "municating to them motive power, retain 
 the character of chattels, notwithstanding 
 
 that the work done by them is an essential 
 process in the manufacture to which the 
 freehold is devoted. 
 
 A fastening by cleats affixed to the 
 building only, and not affixed to the 
 machine except by being placed close 
 against it, is not an affixing of the machine 
 at all, and is not sufficient, in itself," to 
 make the machine a part of the realty. 
 
 Longbottom v. Berry, L.R. 5 Q.B. 123, 
 followed. Sun Life Assurartce Co. v. 
 Taylor, 9 M.R. 89. 
 
 6. Machinery in sash and door 
 factory. 
 
 The boiler in a sash and door factory 
 was set upon timbers for a foundation, 
 suspended by rods to a frame and covered 
 over with brick-work. It could not be 
 removed without taking down a portion 
 of the building. 
 
 The rest of the machinery was not 
 attached to the building, but was kept in 
 position. by sockets and cleats nailed 
 round the feet of the machines to steady 
 them. The whole constituted a sash and 
 door factory and planing mill. 
 
 Held, upon question between a mort- 
 gagee of the realty after the machinery 
 was in operation and a subsequent pur- 
 chaser from the mortgagor by bill of sale, 
 that aU the machines were fixtures and 
 part of the realty. Adamson v. Mcllvarne, 
 3 M.R. 29. 
 
 6. Mill machinery — Mortgagee and . 
 execution creditors. 
 
 Articles not otherwise attached to the 
 land than by their own weight are not to 
 be considered as part of the land, unless 
 the circumstances are such as to show that 
 they were intended to be part of the land, 
 the onus of shewing that they were so 
 intended lying on those who assert that 
 they have ceased to be chattels. Hollan 
 V. Hodgson, L.R. 7 C.P. 328, followed. 
 
 After the execution of a mortgage cov- 
 ering a saw mill, the mortgagors brought 
 into the buUding a planing machine. It 
 was not attached in any way to the free- 
 hold, but was connected by belts with the 
 engine which supplied the motive power. 
 
 Held, that, as between the mortgagee 
 and an execution creditor, the machine 
 was a chattel and not part of the freehold. 
 Canada Permanent Loan & Savings Co. v. 
 Merchants' Bank, 3 M.R. 285. 
 
 7. Mill machinery. 
 
 McD. & McP. ordered from plaintiffs 
 certain planing mill machinery, at an 
 
457 
 
 FIXTURES. 
 
 458 
 
 agreed price, part of which was paid 
 down, and notes were given for the Dal- 
 ance. The agreement provided that not- 
 withstanding the payment, and giving 
 notes, the property in the machinery 
 should not pass ^o McD. & McP., but 
 should remain in the plaintiffs until pay- 
 ment in full had been made. The 
 machinery was' placed in a building which 
 was then used as a planing mill. After- 
 wards McD. & McP. mortgaged to the 
 defendants the land upon which the mill 
 stood. Afterwards McD. & McP. mort- 
 gaged the same land to the plaintiffs to 
 secure the balance then remaining due to 
 them. The parcels, after describing the 
 land, specified the machinery in detail, 
 and concluded, "which are attached to 
 the freehold and are to be considered as 
 fixtures and not as chattels." The plain- 
 tiffs took this mortgage upon the repre- 
 sentation of McD. & McP. that there 
 were no incumbrances upon the property, 
 and it was not intended by the plaintiffs 
 to give up their first claim to the machinery. 
 Held, 1. That as between the plaintiffs 
 and McD. &McP. the machinery remained 
 chattels, such being the intention expressed 
 in their agreement, and the declaration to 
 the contrary in the mortgage was con- 
 fined to the purposes of that mortgage 
 and, in any event, was not binding by 
 means of the misrepresentation. 
 
 2. That the defendants' mortgage was 
 subject to the plaintiffs' agreement, and 
 that the defendants could not avail them- 
 selves of the declaration in the plaintiffs' 
 mortgage. 
 
 3. The question whether articles are 
 fixtures or not depends entirely upon 
 intention. 
 
 4. The intention, object and purpose 
 for which articles for the purpose of trade 
 or manufacture are put up by the owner 
 of the inheritance is the true criterion by 
 which to determine whether such articles 
 become realty or not. Walerous Engine 
 Works Co. V. Henry, 2 M.R. 169. 
 
 Overruled, Andrews v. Brown, 19 M.R. 
 4, ante. 
 
 8. Trade fixtures — Restraining waste 
 — Estoppel. 
 
 Held, 1. Prima fade an hotel is part of 
 the freehold. " ; 
 
 2. But if it has been erected by a tenant 
 for the purpose of trade it is to be regarded, 
 in the absence of evidence to the contrary, 
 as a trade fixture. 
 
 3 . The right of a tenant to remove fixtures 
 continues only during his original term 
 and during such further period of posses- 
 sion by him as he holds the premises under 
 a right still to consider himself as tenan;t. 
 
 4. The right to restrain waste, involved 
 in the removal by a tenant of a building 
 forming part of the freehold, is clear. 
 
 A tenant, who had completed upon 
 the demised premises a building, partly 
 erected by a former tenant through whom 
 he claimed, and which was erected and 
 used by both for trade purposes, having 
 held over after the "expiration of the lease 
 to the first tenant, and having subse- 
 quently been granted by his landlord a 
 new lease, with the usual covenant to 
 repair and a proviso that the lessee should 
 have the privilege, at the expiration of the 
 term, of removing any buQcfing erected on 
 the demised lands, unless the same should 
 be purchased by the lessor at a price to be 
 fixed by the lessee, 
 
 Held, that, under the circumstances 
 shown in evidence, the building remained 
 the property of the tenant ^as a trade 
 fixture, and could be removed by him at 
 any time during the term. 
 
 The tenant having given a chattel 
 mortgage of the building, the building was 
 about to be sold at public auction, during 
 the term, under a provision in the mortgage. 
 The landlord, hearing of it, went to the 
 place advertised, where he was informed^ 
 that the wife of the tenant was going to 
 buy in the building at the auction. 
 Satisfied with this he went away before 
 the sale, making no objection to it and 
 taking no steps to warn bidders of any 
 claim that the building had become part 
 of the freehold, and had passed to him as 
 such; but, on the. contrary, giving the 
 bailiff conducting the sale a distress 
 warrant, under which the landlord was to 
 be paid a portion of the proceeds of the 
 sale; 
 
 Held, that, as against a purchaser ignor- 
 ant of the landlord's rights, the landlord 
 was estopped from craiining the building 
 as a part of the freehold, and from assert- 
 ing any right to restrain the removal 
 during the term. 
 
 Upon rehearing. 
 
 Held, that the lessor. had until the last 
 day of expiration of the term to make his 
 election to purchase the building; but that, 
 not having up to that 'time made such 
 election, the plaintiff had no right to an 
 injunction to prevent the removal of the 
 
459 
 
 FORBEARANCE TO SUE. 
 
 460 
 
 building until the expiration of the term. 
 Gray v. Maclerinan, 3 M.R; 337. 
 
 See Replevin, 5, 
 
 — Vendor and -Purchabek, IV,. 5. 
 
 FORBEARANCE TO SUE. 
 
 See Solicitor and Client, I, 2. 
 
 FORCIBLE ENTRY. 
 
 Trespass on lands — Criminal Code, 
 s. 89. 
 
 A trespasser upon lands in the occupar 
 tion of another, although he enters in a 
 maimer likely to cause a breach of the 
 
 . peace and with force sufficient to over- 
 come resistance, cannot be convicted of a 
 forcible entry under section '89 of The 
 Criminal Code, where the entry was made 
 for the soltS purpose of seizing and taking 
 away goods and there was no intent to 
 take possession of the land or to oust the 
 person in possession or to interfere with 
 his actual occupation of it. 
 
 Biissell on Crimes, (4th' ed.) vol. 1, p. 427, 
 followed. 
 
 ^ Section 89 of the Code was not intended 
 to make any change in the former law as 
 to forcible entry or to create any new 
 offence. Reg. v. Pike, 12 M.R. 314. 
 
 See Covenants, 2. 
 — . Trespass. 
 
 FOREIGN BANKRUPT. 
 
 See^^CoNPLicT or Laws, 1. 
 
 FOREIGN COMMISSION. 
 
 See Evidence on Commission- 
 
 FOREIGN COMPANY, 
 
 jSee Company, IV, 4. 
 
 — Security for Costs, IV. 
 
 FOREIGN CORPORATION. 
 
 1. Lending money on mortgage — ~ 
 
 Tax sale — -Irregularities — Banking busi- 
 ness. 
 
 A foreign corporation lent money on 
 mortgage m this Province. The mortgage 
 was executed in the foreign country and 
 the advances made there. The corpora^ 
 tion had no Ucense to do business in 
 Manitoba, 
 
 Held, that the mortgage was valid and 
 vested the land in the corporation. 
 
 The plaintiff corporation had for its 
 purposes " The investment of capital 
 on the security of real estate, personal 
 property, afesete and obligations," and 
 was prohibited from engaging 'In the 
 business of banking." The plaintiff 
 corporation made loans to L. & Co., 
 taking notes from which the interest 
 was deducted in advance. D., a mem- 
 ber of the firm of L. & Co., made a 
 mortgage to the plaintiff corporation to 
 secure payment of the moneys so advanced. 
 
 Held, that the mortgage was not uUra 
 vires. 
 
 Held, that, where on a tax sale the deed 
 was dated on the 15th of October, 1881, 
 and a suit was begun on the 14th of Octo- 
 ber, 1882, the suit was begun "within one 
 year from the execution of the deed," as 
 provided by the Statute. 
 
 Where the advertisement published 
 had no proper description" of the lands 
 mentioned in it, and the reason why the 
 taxes had not been collected was not 
 stated. 
 
 Hem, a fatal objection. 
 
 Where a sale took place on the 3rd 
 of March, and an advertisement appeared 
 on 15th, 22nd and 28th of February, it was 
 not advertised "at least three weeks in 
 succession," as required -by the statute. 
 
 A tax deed recited that "G., then treas- 
 urer," &c., sold the lands, and proceeded 
 "Now know ye that I, G., treasurer, in 
 pursuance of such Act, do hereby grant," 
 &c. The testatum clause was " In wit- 
 ness whereof, I, G., have hereunto set my 
 hand and affixed" the seal of the munici- 
 pality this," &c. It was signed, "G., 
 treasurer of municipality of S. and S." 
 and the seal of the municipality was 
 affixed. G. was not the treasurer who 
 sold, but his successor. 
 
 Semhle, the deed was invalid. 
 Held, . to a perfect registration it is 
 essential that aU the requirements of the 
 Registry Act should be compUed with. 
 
461 
 
 FOREIGN COURT. 
 
 462 
 
 Qucere, whether unpatented lands can 
 be sold for taxes. Farmers & Traders 
 Loan Co. v. Conklin, 1 M.R. 181. 
 
 2. Writ for service out of jurisdiction 
 
 — Setting aside. 
 
 Held, 1. A writ of summons, in form for 
 service in Manitoba, against a foreign cor- 
 poration having no agent in the Province, 
 is not a nullity, and (semble), the irregu- 
 larity will be waived by appearance. 
 
 2. "Such a foreign corporation may be 
 sued in Manitoba for work done for the 
 corporation there. 
 
 3. rt wiU be assumed that a United 
 States corporation is liable to be sued there 
 in its corporate capacity, until the con- 
 trary be shown. 
 
 4. Seryice of a writ may be effected 
 under Con. Stat. Man., c. 31, s. 32, upon 
 a foireign corporation out of the juris- 
 diction, but the service cannot be made 
 upon a mere clerk. 
 
 5. Service of such a writ may, under 
 section 85, be authorized upon an assistant- 
 secretary, but it must appear that service 
 cannot "be effected upon one of the proper 
 officers of the company, and the -nature 
 of the duties of the office must be shown: 
 
 6. An order allowing service upon a 
 foreign corporation out of the jurisdiction 
 should be of a notice, not a copy, of the 
 writ. 
 
 7. A writ for service in Manitoba may 
 be issued concurrently with one for service 
 upon an alien out of the jurisdiction. 
 
 8. An application may be made to set 
 aside the service of a writ upon the ground 
 that it was not served upon the proper 
 officer of a corporation. It is not neces- 
 sary to await the result of a motion to 
 homologate the service or for leave to 
 proceed. Crotty v. Oregon Transcontinental 
 Ry. Co., 3 M.R. 182. 
 
 See Conflict of Laws, 1. 
 
 — Private Intehnatio al Law."] 
 
 — PKODrCTION OF DoC MBNTS, 8, 12. 
 
 — Real Pkopehtt Act, V, 4. 
 
 — Scire Facias. 
 
 — Sbcuhitt FOR Costs, IV. 
 
 FOREIGN COURT. 
 
 1. Order for attendance of person 
 within jurisdiction for cross-examin- 
 ation upon aSidavit filed in suit 
 pending in a foreign court — Manitoba 
 Evidence Act, R.S.M. 1902, c. 57, s. 57, as 
 
 re-enacted 6z/ 4 <fc 5 Edw. VII, c. 11, s. 1, 
 
 1. Section 57 of the Manitoba Evidence- 
 Act, R.S.M. 1902, c. 57, as re-enacted by 
 s. 1 of c. 11 of 4 & 5 Edw. VII, does not 
 empower the Court to make an order 
 commanding the attendance of a person 
 making an affidavit in a suit or proceeding 
 pending in a Court outside the Province 
 of Manitoba for the purpose of being 
 cross-examined upon it within the Prov- 
 ince. 
 
 2. If an order is made without juris- 
 diction, the right to move for its rescission 
 is not lost by laches or acquiescence. 
 
 Smwrthwaite v. Hannay, [1894] A.C. 
 501, and Hoffman v. Crerar, [18991 18 
 P.R. 473, followed. 
 
 3. An order for attendance of witnesses 
 for examination for the purposes of a suit 
 in a foreign court made under the section 
 of the Evidence Act above quoted is only 
 an interlocutory order and may be founded 
 on affidavits sworn merely oninformation 
 and belief. 
 
 4. Such an order, if otherwise properly 
 made, may require the witnesses to pro- 
 duce any relevant documents on their 
 examination, although the order of the 
 foreign court upon which it is founded 
 makes no mention of any documents; and 
 such production should not be confined 
 to documents relevant to the affidavits on 
 which if is desired to cross-examine the 
 witnesses or to those in their possession, 
 but may include all documents relevant 
 to the issue between the parties and either 
 in the possession or under the control of 
 the affiants. 
 
 5. If a party complies with an order or 
 delays for an unreasonable time in moving 
 against it, he will be precluded thereby 
 from objecting to it on the ground of 
 irregularities merely. Bank of Nova Scotia 
 v. Booth. Dominion Fish Co., Garnishees, , 
 19 M.R. 394. 
 
 2. Order for attendance of witnesses 
 for purposes of inquiry by foreign 
 tribunal — Whether commissioners appoint- 
 ed by the Government of another Province 
 under an Act of its Legislature are a court 
 or tribunal — Constitviional law — Ultra vires. 
 
 1. Commissioners appointed by the 
 Government of another Province under 
 an Act of its Legislature to conduct an 
 inquiry constitute a court or tribunal 
 within the meaning of section 57 of the 
 Manitoba Evidence Act, R.S.M. 1902, c. 
 57, as re-enacted by 4 & 5 Edw. VII, c. 
 11, and an order may be made under that 
 section at the request of such commis- 
 
463 
 
 FOREIGN DEPOSITIONS. 
 
 464 
 
 sioujers requiring the attendance of wit- 
 nesses in Manitoba to testify as to matters 
 within, the scope of their commission. 
 
 2. If there is nothing to prevent such 
 commissioners from coming to Manitoba 
 to take evidence, the order may properly 
 require the attendance of such witnesses 
 before the commissioners themselves >at 
 any place within this Province named by 
 them, as well as before an examiner 
 appointed by them. 
 
 3. Section 57 of the Manitoba Evidence 
 Act may be regarded as relating to the 
 administration of justice in the Province, 
 also to a matter of a merely local or 
 private nature in the Province, and so 
 it is not idtra vires of the Local Legislature 
 under the British North America Act, 
 1867. 
 
 • Re Weiherell and Jones, (1884) 4 O.R. 
 713, not followed. 
 
 Re Alberta & Great Waterways Ry. Co. 
 20 M. R. 697. 
 
 See Injunction, IV, 6. 
 
 FOREIGN DEPOSITIONS, 
 
 See Extradition, 5. 
 
 FOREIGN EXECUTORS. 
 
 See Rectification of Deed. 
 
 FOREIGN JUDGMENT. 
 
 1. Action on — Evidence — Exemplifica- 
 m lion and office copy — Pleading. 
 
 An action will not he upon a foreign 
 judgment imless it be final. The dis- 
 tinction between a final judgment and an 
 interlocutory order discussed. 
 
 The plea of "never indebted " is 
 applicable to a declaration upon a f orfeign 
 judgment and puts the jjlaintiff to the 
 proof of a judgment sufficient to support 
 his action. 
 
 Judgment of TAYliOB, C.J., affirmed. 
 
 Graham v. Harrison, 6 M. R. 210. 
 
 2. Defences litigated in original 
 
 action— Striking out pleas disposed of in 
 original action. 
 
 Action upon a judgment obtained in 
 Ontario for goods sold and delivered to a 
 
 firm of which defendant was a member. 
 The defendant defended the original 
 action upon the ground that prior to the 
 sale of the goods the defendant had left 
 the firm and had so notified the plaintiff. 
 After a verdict had been entered for the 
 plaintiff the defendant moved in Term 
 for a new trial, upon the ground that the 
 verdict was against law and evidence and 
 the weight of evidence, but his motion 
 was refused and judgment was entered for 
 xhe plaintiff. In the present action the 
 defendant pleaded the same defence. 
 
 On motion to strike out the pleas, upon 
 the ground that they delayed and em- 
 barrassed the plaintiff. 
 
 Held, that the pleas should be struck 
 out, and the plaintiff permitted to sign 
 judgment. Gault v. McNabb, 1 M. R. 35. 
 
 Distinguished Hickey v. Legresley, 15 
 M'. R. 305. 
 
 3. Defences which might have been 
 set up in' original action. 
 
 Plaintiff, an Ontario solicitor, recovered 
 judgment against defendant, a resident of 
 Ontario, for default of appearance, in an 
 action for professional services. 
 
 Defendant appHed before the Master 
 in Chambers to set aside the judgment, 
 alleging that he had not received properly 
 signed bills of costs, that services had 
 been charged for which he had not 
 authorized and on other grounds. 
 
 Mr. Dalton held the judgment good, 
 but ordered that on payment of the costs 
 of the application, defendant should be 
 allowed a certain time to tax plaintiff's 
 bills, the judgment- in such case to be 
 reduced by the amount taxed off, and 
 that, failing such payment and taxation 
 within such time, the judgment should 
 stand for amount for which signed. 
 
 An appeal from this order to a judge 
 was dismissed. 
 
 Defendant allowed the time limited by 
 the Master's order to pass without paying 
 the costs of the application or taxing the 
 bills. 
 
 In an action on the Ontario judgment 
 defendant pleaded: — 
 
 Never indebted, and two other pleas 
 alleging, respectively, that plaintiff was 
 not a duly certified attorney according to 
 the law of Ontario, and that he had not 
 delivered signed biUs according to such 
 law, and a fourth plea by way of counter- 
 claim for damages resulting from alleged 
 want of skill on plaintiff's part. The 
 plaintiff applied to strike out the defence 
 
465 
 
 FOREIGN JUDGMENT. 
 
 466 
 
 on the ground of embarrassment and 
 delay. 
 
 Held, that, as defendant could under 
 the circumstances of the case have 
 availed himself of these defences in On- 
 tario, his pleading them here caused 
 embarrassment and delay, and that the 
 pleas should be struck out. Meyers v. 
 Prittie, 1 M. R. 27. 
 
 Not followed, Hickey v. Legresley, 15 
 M. R. 304. 
 
 4. Defences which might have been 
 set up in origmal action — Counter- 
 claim — Foreign affidavits. 
 
 A plea to an action on a foreign judg- 
 ment, of the Statute of Limitations, to the , 
 original cause of action, ought not to be 
 struck out as embarrassing; a plea of the 
 Statute of Limitations being 'Jei/ori and 
 one which could not have been pleaded 
 in a foreign country. Nor should a 
 counter-claim be struck out where, at all 
 events, the defendant was not bound to 
 raise it in the original action. 
 
 Irregularities in foreign affidavits treated 
 leniently. 
 
 Qucere, whether the Manitoba statute 
 relating to foreign judgments does not 
 entitle the defendant, in an action on a 
 foreign judgment, to set up any defence 
 which he might have set up, if the plaintiff 
 had sued on the original cause of action 
 instead of on the judgment. British Linen 
 Co. V. McEwan, 6 M. R. 292. 
 
 6. Defences which might have been 
 set up in original action — ■ Pleading 
 Statute o/ Liimitations — 48 Fic, c. 15, s. 45, 
 s-s. 2— Pleading on the merits. 
 
 To an action on a foreign judgment the 
 detendant pleaded that he was not at the 
 commencement of the suit in which the 
 alleged judgment was recovered, or at any 
 time previous to the recovery of the 
 alleged judgments, resident or domiciled 
 within the jurisdiction of the court, and 
 that he had no notice or knowledge of the 
 suit, or any opportunity of defending 
 himself. 
 
 Held, (afiBrming the decision of Killam, 
 J.), that the plea was bad, because it did 
 not aver that the defendant was not a 
 subject or citizen of the foreign country, 
 and not amenable to its jurisdiction. 
 
 FmDler v. Tail, 27 U.C.C.P. 417, 4 A.R. 
 267, followed. 
 
 McLean v. Shields, 9 O.R. 699, not fol- 
 lowed. 
 
 48 Vic, c. 15, S-. 45, s-s. 2, (R.S.M., c. 1, 
 s. 39), provides that "a defendant in any 
 
 action upon a judgment obtained in any 
 court out of the Province, or upon a 
 foreign judgment, may plead to the action 
 on the merits, or set up any defence 
 which might have been pleaded to the 
 original cause of action for which such 
 judgment has been recovered." 
 
 Held, (reversing the decision of Killam, 
 J.), that the deiendant in an action on a 
 foreign judgment may plead on the 
 merits to the action on the judgment, or 
 he may set up any defence which he might 
 have set up in an action on the original 
 cause of action in the foreign court, but 
 he cannot plead a defence which he might 
 have set up to the original cause of action, 
 had it been sued upon in Manitoba, but 
 which could not be raised in the foreign 
 court. 
 
 The defendant also pleaded that' "the 
 alleged cause of action, in respect of which 
 the alleged judgment was recovered, did 
 pot accrue within six years before the 
 commencement of the said suit in the 
 declaration mentioned, or within six years 
 before this action." 
 
 Held, that the plea was bad for not 
 avierring that the facts stated therein 
 would constitute a defence in the foreign 
 court. British Linen Co. v. McEwan, 8 
 M.R. 99. 
 
 6. Defences which might have been 
 set up in original action. 
 
 To a count on a foreign judgment the 
 defendant pleaded nine pleas which might 
 have been pleaded in the foreign country 
 to the original cause of action. There was 
 no evidence that they were untrue. 
 
 Held, that these pleas could not be 
 struck out on the groimd of embarrass- 
 ment or delay, and the fact that the 
 plaintiffs might be put to great expense 
 about procuring evidence in the foreign 
 country to meet, by way of anticipation, 
 what was set up in the pleas, was no 
 ground for striking them out. Inter- 
 national, &c., Corp. V. Great N. W. Central 
 Ry. Co., 9 M.R. 147. 
 
 7. Defences that had been set up in 
 the original action — King's Bench Act, 
 B.S.M. 1902, c. 40, s. 38, s-s. (l)— Embar- 
 rassment or delay as ground of striking out 
 pleadingi. 
 
 The defences that may be set up in an 
 action in Manitoba on ti foreign judgment 
 by virtue of sub-section (1) of section 38 
 of the King's Bench Act, R.S.M. 1902, 
 0. 40, are not limited to such as might 
 have been, but were not, pleaded in the 
 
467 
 
 FOREIGN JUDGMENT. 
 
 468 
 
 original action, but include such as were 
 actually pleaded there, subject to the 
 power of the Court or a Judge to strike 
 them out on the ground of embarrassment 
 or delay. ^ 
 
 In answer to the plaintiff's appUcation 
 to strike out such defences, the defendant 
 set up by affidavit that he had fully 
 intended to defend the Cape Breton suit, 
 but that, owing to misunderstandings, he 
 was unable to be present when it came on 
 for trial and that, as a result, judgment 
 went against him by default. 
 
 Held, that the defences should not be 
 struck out on the ground of embarrass- 
 ment or delay, and, being allowed by the 
 statute, must be allowed to stand. 
 
 Gavlt V. McNdbb, (1884) 1 M.B. 35, 
 distingiiished on the ground that, m" that 
 case,' the defences sought to be raised in 
 this Court had been set up in the original 
 action and had been fully gone into at 
 the trial and finally decided in favor of 
 the jilaintiff, and therefore, when pleaded 
 in this Court, had probahly been struck 
 out on the ground of embarrassment and 
 aelay. 
 
 Meyers v. Pnttie, (1884) 1 M.R. 27, not 
 followed. 
 
 British Linen Go. v. McEwan, (1892) 8 
 M.R. 99, discussed. Hicken-v. Legresley, 
 15 M.R. 304. 
 
 8. Foreign Statute of Limitations — 
 
 Interest on foreign judgment. 
 
 In an action conmienced in Manitoba 
 in 1878, on a judgment recovered in 
 Ontario on 7th October, 1864, the defend- 
 ant set up that the debt on the judgment 
 had been extinguished by R.S.O., c. 108, 
 ss. 23 and 15, which declare that no action 
 shall be brought to recover any sum of 
 money secured by any mortgage, judg- 
 ment or Uen, or otherwise charged upon 
 or ijayable out of any lana, etc., but 
 within ten years, etc., and that, after the 
 determination of the period limited to any 
 person to bring his action, the right and 
 ' title of such person to the land shall be 
 extinguished. 
 
 Held, that this enactment deprived, the 
 plaintiffs of their remedy in Ontario 
 against the debtor's lands only, and that 
 his personal obligation upon the judgment 
 existed for twenty years from the date of 
 the judgment under R.S.O., c. 61, s. 1, 
 which enacts that an action on a covenant, 
 bond, or other specialty shall be com- 
 menced within twenty years. 
 
 Held, also, that, though interest on a 
 foreign judgment could not be recovered 
 
 as incident thereto, a jury might allow 
 interest aa damages, but not more than 
 six years arrears. Bank of Montreal v. 
 Cornish, T.W,, 272. 
 
 9. Non-service in origfinal action. 
 
 Action upon a judgment obtained in 
 the Province of Quebec. Service of the 
 writ in the original action had been 
 effected by advertisement. Defendant 
 never resided in or carried on business in 
 the Province of Quebec, and had no 
 personal knowledge of the proceedings in 
 the action. 
 
 Held, that the defendant was not bound 
 by the judgment. Schneider v. Woodr 
 worth, 1 M.R. 41. 
 
 10. Setting aside judgment on— 
 
 Special indorsement— Interest. 
 
 A foreign judgment constitutes a simple 
 contract debt. 
 
 Judgment by default, therefore, may 
 be signed in an action upon a foreign 
 judgment; and also for the costs. of a 
 motion m^de in a foreign action. 
 
 Final judgment in default of a plea to 
 a declaration upon the common counts 
 cannot be signed unless particulars have 
 been furnished. And qucere, even if 
 such particulars have been served. 
 
 The special indorsement upon a writ . 
 serves as particulars under the common 
 money counts of the declaration; and no 
 further particulars can regularly be 
 dehvered without a Judge's order. 
 
 Judgment in default of a plea cannot 
 - include interest subsequent to the issue of 
 the writ although judgment in default of 
 appearance may. 
 
 Judgment in default of a plea having 
 been signed for $4.93 too much, it was set 
 aside and not merely reduced by that 
 amount, a meritorious defence being 
 sworn to. Martel v. Dubord, 3 M.R. 598. 
 
 11. Summary judgment in action 
 
 on — lAguidated demand. 
 
 A foreign judgment is a liquidated 
 demand within the meaning of section 34 
 of The Queen's Bench. Act, 1885. 
 
 On a motion for; final judgment, under 
 the above section, [the non-service of an 
 order allowing service out of the juris- 
 diction is waived by the defendant enter- 
 ing an appearance. Whiila v. McCuaig, 
 7 M.R. 454, 
 
 See-CoNTKACT, XIV, 2. 
 
 — Limitation op Actions, 4. 
 
469 
 
 FOREIGN LAW. 
 
 470 
 
 See Pleading XI, 16. 
 
 SBCtlRITT FOB COSTS, III, 2. 
 
 — Staying Proceedings, I, 1. 
 
 — Summary Judgment, ill, 1. 
 
 FOREIGN LAW. 
 
 See Criminal Law, XVII, 9. 
 ^- Extradition, 1. 
 
 FORECLOSURE. 
 
 See Mortgagor and Mortgagee, I; VI, 
 6, 10, 13. 
 
 — Real Property Limitation Act, 7. 
 
 — Rectification of Deed, 2. 
 
 FORFEITURE. 
 
 See Company, IV, 14. 
 
 — Covenants, 2. 
 Landlord and Tenant, V, 3. 
 
 — Registered Judgment, 5. 
 
 — Threshers' Lien. 
 
 — Vendor and Purchaser, II, 3, 7. 
 
 FORFEITURE OF LEASE. 
 
 /Se»- Landlord and Tenant, III, 3. 
 
 FORFEITURE OF LICENSE. 
 
 See Ticket op Leave Act. 
 
 FORGERY. 
 
 False entries — Extradition. 
 
 Forgery is the falsely making or altering 
 a document to the prejudice of another, 
 by making it appear as the document of 
 that person. A simple lie, reduced to 
 writing, is not necessarily forgery. 
 
 Consequently where a bank clerk made 
 certain false entries in the bank books 
 under his control, for the purpose of 
 enabling him to obtain money of the 
 bank improperly. 
 
 Held, that he was not guilty of forgery. 
 Reg. V. Blackstone, 4 M.R. 296. 
 
 See Bills and Notes, VIII, 6. 
 — ■ Criminal Law, XVII, 5. 
 
 — Estoppel, 3. 
 
 — Will, III, 3. 
 
 FORMS. 
 
 ! Capias, 2. 
 
 Chattel Mortgage, I, 6;HI,[2. 
 - Election Petition, II. 
 
 Garnishment, I, 9. 
 
 Homestead, 4. 
 
 Interpleader IV; IX, 1. 
 
 Local Option By-law, II, 1. 
 
 Pleading, XI, 1. 
 
 Real Property Act, V, 8. 
 
 Registered Judgment, 4. 
 
 Security fob Costs, I, 3. 
 
 FRATERNAL ORDER. 
 
 .Secession of Graxid Lodge from 
 Supreme Lodge — Right of Supreme Lodge 
 to operaie in territory of seceding Grand 
 Lodge and to organize new Grand Lodge 
 therein. 
 
 Up to the year 1904, the plaintiff 
 Grand Lodge of the Ancient Order of 
 United Workmen of Manitoba and the 
 North-West Territories, which had been 
 incorporated undet that name in the year 
 1893 imder the laws of the Province of 
 Manitoba, had been carrying on the 
 business of life insurance amongst its 
 members in subordination to, and under 
 a charter granted to it by the defendant 
 Supreme Lodge of the same order, which 
 had its headquarters in Texas. In that 
 year the plamtifE Grand Lodge refuged 
 any longer to be subject to the juris- 
 diction of the Supreme Lodge, or tO| levy 
 or remit to the latter the special assess- 
 ments demanded by it, for a guarantee 
 fund created for the purpose, of meeting 
 any excess over estimated death losses 
 that might occur in any of the jurisdictions 
 under the Supreme Lodge. In 1905 the 
 Supreme Lodge suspended the plaintiff 
 Grand Lodge and organized a new Grand 
 Lodge for Manitoba, Saskatchewan and 
 Alberta with subordinate lodges, all 
 working in harmony with and under the 
 control and supervision of ,the Supreme 
 Lodge, and all using the words "Ancient 
 Order of United Workmen" as part of 
 their names. ' 
 
 These newly created bodies at once 
 commenced and thereafter carried on the 
 
471 
 
 FRAUD. 
 
 472 
 
 business of fraternal life insurance in the 
 same way as it had been carried on by 
 the plaintiff Grand Lodge. They issued 
 circulars and sent them to the members 
 of th§ plaintiff Grand Lodge who still 
 adhered to it as well as to other persons, 
 and carried on an active propaganda in 
 opposition to the plaintiffs. 
 
 Held, (1) The plaintiff Grand Lodge 
 was not entitled to an injunction restrain- 
 ing the defendants from using the name 
 "Ancient Order of United Workmen" in 
 Manitoba and the North-West Te^-ri- 
 tories, or from carrying on business there 
 in the name of the Supreme Lodge, 
 A.O.U.W., or from collecting any money 
 for life insurance from the members of 
 the plaintiH Grand Lodge, or from 
 sohciting such members to join or con- 
 tract with the defendant Supreme Lodge 
 or any of its subordinate lodges. 
 
 (2) Although the plaintiff Grand Lodge 
 had for a number of years levied and col- 
 lected special assessments for the general 
 guarantee fund created by the Supreme 
 Lodge as above mentioned, and had 
 voluntarily remitted some of these nioneys 
 to the Treasurer of the Supreme^ Lodge, 
 yet the evidence failed to show that there 
 was any contractual relationship existing' 
 between the two bodies by which the 
 ^rmer was under any legal obligation to 
 pay over to the latter any of the money 
 raised by these assessments which had 
 not been already paid over. 
 
 (3) The defendant Supreme Lodge was 
 , not entitled to an injunction forbidding 
 
 the plaintiffs, their members, servants or 
 agents, to use the name "Ancient Order 
 of United Workmen," as the plaintiff 
 Grand Lodge had been legally incorpor- 
 ated in 1893, with the knowledge and 
 consent of the Supreme Lodge, and had 
 issued a great many beneficiary certificates 
 for Hfe insurance^ a great proportion of 
 which were still m force. The-Supreme 
 Lodge incurred no liability under these 
 certificates, and to restrain the plaintiff 
 from the use of. its own name would be 
 practically to nullify the powers conferred 
 upon it by our Provincial laws for the 
 benefit of a foreign corporation not even 
 licensed to do business in Manitoba. 
 Grand Lodge, A.O. U.W. v. Supreme Lodge, 
 A.O. U.W., 17 M.R. 360. 
 
 Plaintiff gave defendant a mortgage 
 and subsequently executed a conveyance 
 to him of the equity of redemption. 
 Plaintiff asserted that the conveyance was 
 obtained from him by fraud and while 
 intoxicated through drink suppUed to'him 
 by the defendant, at his (defendant's) 
 hotel. 
 
 Held, that the evidence did not estab- 
 Hsh the fraud charged. 
 
 Held, that though plaintiffl was a hard 
 drinker he had not become so incapaci- 
 tated for business that equity would 
 reUeve him from his acts, and the bill 
 must be dismissed with costs. McHroy v. 
 Davis, 1 M. R. 53. 
 
 2. Undue influence — Misrepresentor 
 tion — Batificaiion of bargain. 
 
 The plaintiff in thiff action sought to 
 set aside a transfer of land which the 
 defendant had obtained from him by the 
 exercise of what the Judge held to have 
 been both fraud and undue influence, but 
 the, defendant contended that the plaintiff 
 had, after the commenpement of the - 
 action, compromised and settled it by 
 signing the agreement referred to in the 
 judgment. 
 
 A full statement of the facts wiU be 
 found in the judgment. 
 
 Held, that the alleged ratification as 
 well as the original transfer had been 
 obtained by fraud and undue influence 
 and that the transfer should be set aside 
 with costs. 
 
 Holland's Jurisprudence, p. 222; Bridg- 
 man v. Green, (1755) 2 Ves. Sr. 627 and 
 Moxon V. Payne (1873) L. R. 8 Ch. 881, 
 foUoWed. Atkinson v. Borland, 14 M. R. 
 205. 
 
 See Bills and Notes, VIII, 1, 11. 
 
 — Ceiminal Law, XVII, 6. 
 
 — Evidence, 28. 
 
 — Fraudulent Conveyance, 3, 17. 
 
 — Fkaudulbnt Judgment, 4. 
 
 -^ Fraudulent Preference, I, 1.' 
 
 MiSBEPKESBNTATION, IV, 1, 4; V, 1. 
 
 — Mortgagor and Mortgagee, V, 3. 
 
 — Pleading, III, 2; VI, 1. 
 
 — Principal and Agent, V, 2. 
 
 — Principal and Surety, 2. 
 
 — Summary Judgment, I, 3; 
 
 — Vendor and Purchaser, I, 1; VI, 
 
 9, 12, 
 
 FRAUD. 
 
 1. Deed obtained by Fraud — Intoxi- 
 cation — Evidence. 
 
 FRAUD ON COURT. 
 
 See Mortgagor and Mortgagee, V, 2. 
 
473 
 
 FRAUDULENT CONCEALMENT. 
 
 474 
 
 FRAUDULENT CONCEALMENT. 
 
 See Sale op Lakd foh Taxes, V, 2. 
 
 FRAUDULENT CONVEYANCE. 
 
 - 1. Assismneiit for benefit of cred- 
 itors — Business to be carried on — Beserva^ 
 iion of property exempt from execution. 
 
 An assignment for the benefit of 
 creditors contained the following clauses: 
 "Provided always that the said trustee 
 shall have power and authority, if he shall 
 deem it expedient and for the general 
 benefit of the creditors, from time to time 
 and as often as he shall deem it proper 
 out of the proceeds of the sales of the said 
 stock to purchase goods and stock for the 
 purpose of enabling him to assort and 
 sell off the present stock to the best ad- 
 vantage for the benefit of the creditors, 
 but such purchase shall be made with 
 such view only and not with a view of 
 continuing the business beyond a reason- 
 able time. * * * Provided also that the 
 said party of the first part, notwithstand- 
 ing anything herein cdntained, shall have 
 the right and privilege if he so elects 
 withiri a reasonable time to reserve to 
 himself out of the goods and chattels and 
 property hereinbefore conveyed and as- 
 signed such property as would be exempt 
 from seizure under execution according to 
 the laws of the Province of Manitoba." 
 
 ffeW, that the assignment was not, by 
 reason of these clauses, void as against 
 creditors. Robinson v. Huston, 4 M. R. 
 71. 
 
 2. Burden of proof of solvency— 
 
 Amendment. 
 
 C. P. was indebted to plaintiffs in 
 respect of a mortgage upon certain lands 
 in Emerson. After default he conveyed 
 certain other lands to his son, who im- 
 mediately conveyed them to his (C. P's.) 
 wife. The conveyances were voluntary 
 and intended as a "provision for the 
 wife so that she could have a house." 
 Previous to the date of the conveyances, 
 land had become imsaleable in Emerson, 
 and the plaintiff's security was altogether 
 inadequate. There was no direct evidence 
 that C. P. had no other property sufficient 
 to pay the debt, but there was sufficient 
 to lead the court to suspect it. The 
 deeds were not registered, but were 
 handed to the wife, who was not careful 
 to keep them separate from her husband's 
 
 papers. The husband continued to collect 
 the rents and to put them into the com- 
 mon ptu'se for household purposes. At 
 the hearing the wife, without withdrawing 
 her answer, offere4 to consent to a sale 
 and a rateable division among all her 
 husband's creditprs of the proceeds. 
 
 Held, that. the conveyance was fraudu- 
 lent as against creditors. 
 
 Per Tatlok, C.J. — The onus of shewing 
 the existence of other property available 
 for creditors is upon those supporting a 
 voluntary conveyance. The bill was 
 originally filed upon a certificate of judg- 
 ment against CI. P. alone. He having 
 then disclosed the conveyances to his wife, 
 she was made a party, the existence of a 
 fi. fa. against C. P. alleged, and the con- 
 veyances attacked as fraudulent against 
 creditors. At the .hearing it appeared 
 that the fi,. fa. was placed in the sheriff's 
 hands after the bill was ffied. An amend- 
 ment was allowed in order to make the 
 bill one on behalf of all the creditors of 
 C. P. Dundee Mortgage Co. v. Peterson, 
 6 M. R. 66. 
 
 3. Burden of proof of bona fide 
 purchase — Exemptions — Real Property 
 Act, R.S.M., c. 133, s. 57— Concealed 
 fraud — Laches. 
 
 The plaintiffs were judgment creditors 
 of the defendant McLean, who at the* 
 time judgment was recovered was, and 
 had since remained, in insolvent circum- 
 stances; and this action was brought to 
 have it declared that two quarter sections 
 of land which were bought after the 
 recovery of the judgment in the name of 
 the defendant McKenzie were held by 
 , her as a bare trustee for McLean, or had 
 been fraudulently transferred to her in 
 order to hinder and defeat the creditors 
 of McLean. 
 
 Both parcels of land had formerly 
 belonged to McLean, but they had been 
 sold for arrears of taxes in 1886; and sub- 
 sequently the purchasers after negotia- 
 tions~carried on by McLean or his soUcitor 
 assigned the tax sale certificates to the 
 defendant McKenzie, a poor, girl who 
 hved with McLean, her uncle. Tax deeds 
 were issued to her by the Municipality and 
 certificates of title under The Real Prop- 
 erty Act were obtained for both parcels in 
 Miss McKenzie's name. She claimed 
 that she had furnished the money, $125, 
 required to acquire the tax sale certificates, 
 but the evidence in support of this was not 
 satisfactory to the Court which held that 
 the onus was upon her to establish this 
 
475 
 
 FRAUDULENT CONVEYANCE. 
 
 476 
 
 fact by clear and convincing proof, and 
 the additional sum, about $125 more, 
 required to complete the purchases and 
 procure the certificates of title was not 
 provided by her. 
 
 After the purchase, the charge and 
 management of the lands were left wholly 
 in McLean's hands, and Miss McKenzie 
 had neyer received any rents or exercised 
 any rights of ownership except that she 
 agreed to a suggestion that her cousin, 
 McLean's son, made to her seven or eight 
 years ago, that she should rent them to 
 him. But no terms were discussed and 
 he had paid her no rent. 
 
 The evidence also showed that the 
 defendant McLean had himself cultivated 
 and managed the farms for his own benefit, 
 and had in fact always dealt with the 
 lands as if they were his own, but in his 
 evidence at the trial he stated that he 
 had been working for his son in cultivating 
 the land. 
 
 Held, (1) That the plaintiffs were en- 
 titled to the reUef asked for and that 
 section 57 of The Real Property Act, 
 R.S.M., c. 133, as amended by 55 Vic, 
 c. 38, s. 4, does not prevent the.granting 
 of the relief, as it provides that a certificate 
 of title is "subject to the right of any 
 person to show fraud wherein the regis- 
 tered owner has participated or colluded," 
 and the law declares that sucK a transac- 
 tion as was held to have been proved is 
 fraudulent under 13 Eliz., c. 5, and Miss 
 McKenzie participated in it. 
 
 Barrack v. McCulloch, (1856) 3 K. & J. 
 117; Merchants Bank v. Clarke, (1871) 18 
 Gr. 594; Harris v. Rankin, (1887) 4 M.R. 
 129, and Re Massey. & Gibson, (1890) 7 
 M.R. 172, fqUowed. 
 
 (2) The Statute of Limitations could 
 not be set up as a defence as the fraud was 
 
 ' a concealed one, and the plaintiffs, with- 
 out any want of reasonable diligence, 
 became aware of the facts only about 18 
 months before the commencement of the 
 action. 
 
 (3) That the defendant McLean, in view 
 of the evidence given by himseK at the 
 trial, was not entitled to claim any part of 
 the lands as exempt from seizure and sale. 
 Merchants Bank v. McKenzie, 13 M.R. 
 19. 
 
 Distinguished, Logan v. Rea., 14 M.R. 
 544. 
 
 4. Conveyance without considera- 
 tion — Exemption from seizure. 
 
 Defendant, J. S., took up a quarter 
 section as a homestead, performed settle- 
 ment duties and obtained a -patent. He 
 then made a conveyance to J. R., and J. R. 
 conveyed to M. S., the wife of defendant 
 J. S. Subsequently to these conveyances, 
 plaintiff obtained judgments at law against 
 the defendant J. S. The conveyances 
 were withotlt consideration. J. S, had no 
 other property. Within three months 
 after the execution of the conveyances, 
 executions to th'fe amount of $1,388.38 
 against J. S, were placed in the sheriff's 
 hands. 
 
 Held, 1. That the conveyances must be 
 set aside, and equitable execution decreed. 
 
 2. That it is not necessary that the debts 
 should have become payable before Jhe 
 fraudulent disposal of the property was 
 made. 
 
 3. Exemptions from execution under 
 Con. ,Stat. Man. c. 37, s. 85, s-a .8, as 
 amended by 47 Vic, c. 16, s. 6; discussed. 
 Brimstone v. Smith, 1 M.R. 302. 
 
 5. Crown lands — Purchase of land 
 ■ from Provincial Government — Lien on land 
 
 (seated hy purchaser — Subsequent transfer' 
 of purchaser's interest to third party. 
 
 The defendant Bourdin purchased the 
 land in question from the Government of 
 Manitoba in May, 1904, paying $64.00 on 
 account and agreeing to pay the balance 
 in yearly instalments. In January, 1905, 
 he created a lien on the land in favor of 
 the plaintiffs who registered it. He made 
 no further payments to the Government, 
 but put improvements on the land esti- 
 mated -at $100. He gave a quit claim 
 deed of it in August, 1906, to the defendant 
 Le Seach. The Land Department ignored 
 the lien of the plaintiffs and, upon Le 
 Seach paying the balance of the purchase 
 money, issued a patent for the land to 
 him. 
 
 Held, that" it should be inferred from 
 these facta that the Government had 
 treated Bourdin 's interest in the land as 
 forfeited because of his default in payment 
 and had intentionally disregarded the 
 plaintiff's registered fien, and that the 
 patent to Le Seach, could not be set aside 
 for improvidence or on any other ground. 
 North-West Thresher Co. v. Bourdin, 20 
 M.R. 505. 
 
 6. Evidence to establish the fraud — 
 
 Purchase of land by debtor in name of 
 another — Presumption. 
 
 The plaintiff claimed a declaration that 
 a certam piece of land purchased from the 
 
477 
 
 FRAUDULENT CONVEYANCE. 
 
 478 
 
 Dominion Government in the name of the 
 defendant J. was the property of his 
 brother, the defendant R., and should be 
 sold to realize the plaintiff's registered 
 judgment against R. 
 
 At the time of the purchase in 1888, R. 
 was indebted to the plaintiff in a sum of 
 over $1,800 and to anothpr person for 
 over $4,000, and it was shown that J. 
 had never paid anything on the land 
 either for purchase money or taxes and 
 had never received anything by way of 
 rents or profits; also that the money for 
 the first instalment had been advanced by 
 another brother, that R. had paid the 
 rest of the purchase money from the 
 proceeds of the land, of which he had 
 always enjoyed the use and occupation, 
 and that the Crown Patent for the prop- 
 erty was issued to J. in 1892 without his 
 having applied for it. 
 
 The defendants at their examination 
 for discovery before the trial swore that 
 the whole transaction was bona fide and 
 that R. was J.'s agent throughout in 
 respect Qf the property, but R. was not 
 called as a witness for the defence. J., 
 also, in a letter to R. written in 1889, 
 had referred to the property as "your 
 land." 
 
 Held, that the proper conclusion upon 
 the whole evidence was that the land was 
 really R.'s property and had been purchased 
 andiield in J.'s name for the purpose of 
 preventing creditors from reahzing out 
 of it, and that the plaintiff was entitled 
 to the relief asked for. 
 
 Semble, that, when a defendant who is 
 in Court does not give evidence to support 
 his case, the Judge is entitled to make 
 every reasonable presumption against 
 him: Barker v. Furlong, [1891] 2 Ch. 172, 
 per RoMBR, J., at page 184. Miller v. 
 McCuaig, 13 M. R. 220. 
 
 7. Evidence to establish the fraud — 
 
 I. 0. U. — Assignment — Interpleader. 
 
 An I. O. U. was made by McD. & R. 
 in favor of McL., and assigned by him to 
 the plaintiff. Subsequently McD. & R. 
 were served with a garillshee order, in a 
 suit of the present defendants against 
 McL. attaching all moneys due by them 
 to McL. 
 
 McD. & R. interpleaded. 
 
 Held, upon the evidence, that the 
 assignment was only a contrivance and 
 not a real transaction, and was void as 
 against the defendants. Bateman v. Mer- 
 chants Bank, 1 M. R. 260. 
 
 8. Ezecutidn creditor suing on be- 
 half of himself and all other creditors 
 
 — Abolition of fi. fa. lands — Multifarious- 
 ness — Bill by execution creditor on behalf 
 of all otherSj 
 
 A judgment creditor, although entitled 
 to priority over others, may file a biU on 
 behalf of himself and the others, to have 
 a deed declared fraudulent against cred- 
 itors. 
 
 An Act repealed the only statutory 
 provisions -ander which real estate became 
 bound by, and could be sold imder, writs 
 of fi,. fa. The same Act provided that 
 writs then in the sheriff's hands "shall 
 remain in fult force, virtue and effect, 
 and may be renewed from time to time." 
 During the following session another Act 
 empowered sheriffs to sell lands under 
 writs remaining in their hands. Between 
 these Acts a bill was filed by an execution 
 creditor on behalf of himself and all 
 others to set aside a deed. 
 
 Held, that under tlie former Act writs 
 remained in the sheriff's hands in full 
 force, but awaiting further legislation to 
 enable the sheriff to proceed; and that, 
 even prior to such further legislation, the , 
 plaintiff had , a sufficient locus standi. 
 Western Canada Loan Co. v. Snow, 6 M. 
 R. 606. 
 
 9. Exemptions — Lien of registered judg- 
 ment — Taking proceedings under, while 
 debtor in occupation — County Courts Act, 
 B.S.M. 1892, c. 33, ss. 196, 197, as amended 
 by 55 Vic, c. 7, s. 5 — The Judgments Act, 
 R.S.M. 1892, c. 80, s. 12. 
 
 1. The registration of a certificate of 
 judgment, under sections 196 and 197 of 
 The County Courts Act, R.S.M., c. 33, as 
 amended by 55 Vic, c. 7, s. 5, binds and 
 charges the land of the judgment debtor, 
 though it may be his actual residence or 
 home, and the creditor may take pro- 
 ceedings to realize whenever the defendant 
 ceases to be entitled to claim the property 
 as his exemption. 
 
 Frost V. Driver, 10 M.R. 319, followed. 
 
 2. When a debtor has absolutely con- 
 veyed all his interest in the land on which 
 he resides by a conveyance vaUd and 
 binding on him, even when set aside by 
 the Court as against creditors, the claim 
 that the land is an exemption of his under 
 section 12 of The Judgments Act, R.S.M., 
 c. 80, can no longer be maintained. 
 
 Brimstme v. Smith, (1884) 1 M.R. 302, 
 and Massey- Harris Co. v. Warrener, 
 17 C.L.T., Occ .N. 409, column 426 supra, 
 followed. 
 
479 
 
 FRAUDULENT CONVEYANCE. 
 
 480 
 
 3. Under such circumstances, when the 
 debtor has made a conveyance of his 
 home, which is fraudulent against credi- 
 tors under 13 Eliz., c. 5, the creditor is 
 entitled to an immediate order for s^le of 
 the property to realize the amount of the 
 judgment and costs. 
 
 Taylm- v. Cummings, (1897) 27 S.C.R. 
 592, distinguished. Roberts v. Hartley, 
 14 M.R. 284. 
 
 Distinguished, Logan v. Rea, 14 M.R. 
 544. ^ 
 
 10. Exemptions — lAen of registered 
 judgment — Proceedings to realize while 
 debtor in occupation — Declaration of right 
 without order /or sale — The Judgments' Act, 
 R.S.M. 1902, u. 91, s. 9. 
 
 _The defendant, Mrs. Rea, who lived on 
 the property in question, conveyed it to 
 her son without consideration because she 
 thought she might thereby prevent the 
 sale of the land to realize the plaintiff'^ 
 claim, and both she and her son admitted 
 that fact in this action ~and that the 
 property was the mother's and that the 
 son had no interest in it. The plaintiff 
 sought a declaration that the land be- 
 longed to the mother and that the son 
 held it only as trustee for her and asked 
 a sale of the land to satisfy the hen of his 
 registered judgment. 
 
 Held, that the plaintiff was entitled to 
 the declaration asked for but not to a sale, 
 as the property was exempt under section 
 9 of The Judgments Act, R.S.M. 1902, 
 c. 91, it being the actual residence and 
 home, of the judgment debtor, and not 
 worth more than' $1,500. 
 
 RobeHs v. Hartley, (1902) 14 M.R. 284, 
 and Merchants Bank v. McKenzie, (1900) 
 13 M.R. 19, distinguished on the ground 
 that there both the grantor and grantee 
 united in asserting the reality of the trans- 
 fer and neither alleged nor proved any 
 trust in favor of the grantor. Logan v.' 
 Rea, 14 M.R. 543. 
 
 11. Grantee liable for proceeds of 
 property — Onus as to solvency. 
 
 C, being indebted to the plaintiffs in an 
 amount exceeding $1,600, part of which 
 was shortly coming due, sold his entire 
 business, receiving $1,000 in cash and 
 $3,500 in notes. He transferred the notes 
 and all his book-debts to his wife, the 
 defendant, and shortly afterwards left the 
 country, making no provision for plain- 
 tiff's claim. 
 
 Upon a bill filed to set aside this tran- 
 saction, the wife swore that she had lent 
 to C. large sums of money, and that the , 
 transfer was in consideration of this 
 indebtedness. 
 
 Held, (reversing Bain, J.) — 
 
 1. That the unsupported and 'bald 
 statement of a loan by a wife to a husband 
 was not sufficient evidence of a legal 
 indebtedness. 
 
 2. The onus is upon the grantee in a 
 voluntary conveyance, when it is attacked 
 by creditors, to show the existence of other 
 property available for creditors. 
 
 3. The defendant, having sold the notes 
 after bill and injunction served, was 
 directed to account for the money obtained 
 for them. Osborne v. Carey, 5 M.R. 237. 
 
 12. Grantor remaining in possession. 
 
 A lease made by a debtor, of his farm 
 property, under the terms of which the 
 debtor was to remain in possession, and 
 out of -the crop pay himself $1,500, de- 
 clared void as against creditors although 
 there was no evidence of financial embar- 
 rassment or inability to pay debts in full. 
 Way V. Massey Manufacturing Co., 4 M.R. 
 38. 
 
 13. Holder in due course — Fraudulent 
 assignment — Transfer of overdue promissory 
 note — Payment by note — Parties. 
 
 Defendant was sued for the amount of 
 an account for goods obtained from Spratt 
 & Co., the account having been with 
 others sold to plaintiff by the assignee in 
 insolvency of Spratt & Co. 
 
 Defendant showed that before the 
 assignment he had given Spratt & Co. a 
 promissory note for the amount of the 
 account and that such note was out- 
 standing in the hands of a bank. It 
 appeared, however, that before the note 
 was given the sherifi had taken possession 
 of Spratt & Co.'s business under an order 
 for an attachment issued under The 
 Queen's Bench Act, 1895, and that the 
 note was in the hands of Spratt & Co. 
 until after its maturity. 
 
 Held, that defendant could not have 
 been compelled to pay the note to Spratt 
 & Co., if they stiU held it, because they 
 had no right to the money, that he was 
 not Uable upon it to the bank which took it 
 after maturity, and that plaintiff was 
 entitled to judgment. 
 
 Held, also, that it was not necessary to 
 make the holder of the note a party to the 
 action. 
 
481 
 
 FRAUDULENT CONVEYANCE. 
 
 482 
 
 Bertrand v. Hooker, 10 M.R.i 415, not. 
 foUowed. Clay v. Gill, 12 M.R. 465. 
 
 14. Husband and wife — Bill of sale — 
 Ante-Nuptial settlement. 
 
 Appeal from a County Court in an 
 interpleader issue. The plaintiff, having 
 recovered.a judgment against the husband 
 of defendant in the issue for the price of 
 certain furniture sold to him, issued an 
 execution under which the furniture was 
 seized. The defendant claimed the goods 
 as her property under a bill of sale made 
 by her husband to her in pursuance of an 
 ante-nuptial settlement. This settlement 
 was executed just prior to the marriage of 
 the parties in 1893, and provided that the 
 husband would forthwith after the cele- 
 bration of the marriage grant and •convey 
 to his wife all the personal and real pro- 
 perty and life insurance which he owned, 
 and that he would further transfer to her 
 within one year" other furniture to be 
 selected by her to the value of $1,500 in 
 all, and would within five years convey to 
 her further real estate to the value of 
 $5,000 and increase his life insurance in 
 her favor to make a total of $10,000, and 
 would keep and maintain the same and 
 would pay all taxes, and keep the real and 
 personal property insured and bear and 
 sustain all expenses of the cominon 
 domicile. , 
 
 i The husband was indebted at the time 
 for the furniture in question, and also to 
 other creditors, and the evidence in this 
 and other respects showed in the opinion 
 of the Court that the settlement was 
 entirely voluntary and without considera- 
 tion, and was not stipulated for by the 
 claimant as a condition of the marriage, 
 but was made with the intention of 
 putting all his property then owned and 
 practically ^11 his after-acquired property 
 beyond the reach of his creditors. 
 
 It appeared, also, that nothing had been 
 done to carry out the covenants in the 
 marriage settlement for nearly two years 
 until the execution of the bill of sale, which 
 the husband gave to his wife two days after 
 the service of the writ in the action against 
 him. It was admitted that he was then 
 insolvent and that he gave the biU of sale 
 in order to protect her as a creditor, and 
 without any solicitation or pressure from 
 her. 
 
 Held, following Ex parte Kilner, 13 Ch. 
 D. 248, and .Ex parte Bolland, L.R. 17 Eq. 
 115, that the amis of proof was upon the 
 claimant, and that both the bill of sale 
 and the ante-nuptial settlement were void 
 
 as against the plaintiff. Mercer v. Peter- 
 son, L.R. 2 Ex. 209, distinguished. 
 
 Quaere, whether, if the settlement could 
 be considered as yalid and binding, the 
 bill of sale could be supported as against 
 an execution creditor. 
 
 Held, also, that as the furniture in 
 question had been, since the marriage, in 
 the.house occupied by the defendant and 
 her husband, the possession must be pre- 
 sumed to have been his and not hers, and 
 there was no change of possession at the 
 marriage. Ramsay v. Margrelt, [1894] 
 2 Q.B. 18,. distinguished. Brown v. Peace, 
 11 M.R. 409. 
 
 15. Limitation of actions— Si^iiMfe of . 
 LdmitaUons-^Amendment after cause of 
 action barred — Promissory note — Negotiable 
 instrument — 13 Eliz^ c. 5 — Registration of 
 certificate of County Court judgment, binding 
 effect of. 
 
 1. An instrument in the form usually 
 called a lien note is not a negotiable 
 promissory note: Bank of Hamilton v. 
 Oillies, (1899) 12 M.R. 495, and the right 
 of action upon it is barred by the Statute . 
 of Limitations in six years from the due 
 date of it without adding any days of •. 
 grace. 
 
 2. A voluntary conveyance of land can- 
 not be successfully attacked under the 
 Statute 13 Eliz., c. 5, on the basis of a 
 debt due at the time of the conveyance 
 but barred by lapse of time before the 
 commencement of the action to attack. 
 
 Struthers v. Glennie, (1888) 14 O.R. 726, 
 followed. ^ 
 
 3. A voluntary conveyance of land, if 
 meant to be absolute as between the 
 parties, so that the grantee holds it free- 
 of trust for the grantor, leaves no interest 
 
 "in him which cto be affected by the regis- 
 tration of a .certificate of a subsequently 
 recovered County Court judgment against 
 the grantor. 
 
 A debt of the grantor, though owing at 
 the time of the making of such voluntary 
 conveyance, became afterwards barred by 
 the Statute of Limitations before the 
 creditor sued the grantor upon it. The 
 grantor neglected to plead that statute 
 and judgment was recovered against him. 
 Held, that, as against the grantee, such 
 judgment does not relate back to the 
 original debt so as to form the basis for 
 an action under 13 Eliz., c. 5. The 
 grantee, having once gained the right to 
 plead the Statute of Limitations in such 
 last named action, can not be deprived of 
 
483 
 
 FRAUDULENT CONVEYANCE. 
 
 484 
 
 that right by the act or omission of the 
 grantor. Keddy v. Morden, 15 M.R. 629. 
 
 _ 16. Parties to action — Trustee and 
 cestui que trust — Grantor not a proper party 
 — Trust deed, when revocable — Delivery of 
 deed — Multifariousness. ' 
 
 To the creditor's bill to Set aside a con- 
 veyance to a trustee for other creditors, 
 the cestuis que trustent are not necessarily 
 parties defendants. It is discretionary 
 with the Court. 
 
 It is not usual in the style of cause to 
 describe a party in the capacity in which 
 he is made a party, c. g. "Executor of," 
 &c. 
 
 - Semble, the grantor is not a proper 
 party to a suit to set aside a conveyance 
 as fraudulent against his creditors. 
 
 A bill may be filed by a creditor who has 
 not obtained a judgment, on behalf of all 
 other creditors, to set aside a fraudulent 
 conveyance. 
 
 The plaintiff's debt was in i-espect of 
 two promissory notes to which the grantor 
 in the alleged fraudulent conveyance was 
 an accommodation party only. 
 
 Qiuerp. Should the other parties to the 
 notes have been parties to the bill. 
 
 A deed which the grantor Tias power to 
 revoke and which he attempts to use as a 
 shield against his creditors cannot be 
 otherwise than fraudulent and void 
 against his creditors. 
 
 Retaining possession of the deed is a 
 very strong circumstance to show that it 
 was really intended as a shield. So also 
 continuing to deal with the property as 
 owner. 
 
 The fact that the grantee has sold cer- 
 tain of the lands conveyed to him will not 
 prevent a decree being made setting aside 
 the conveyance as to other lands. 
 
 Qiuere. Is a bill to set aside a convey- 
 ance as fraudulent and for administration 
 of the grantor's estate multifarious? 
 Leacock v. Chambers, 3 M.R. 645. 
 
 17. Pleading. 
 
 It is not sufficient in a bill impeaching a 
 conveyance as fraudulent against creditors 
 to allege that it was made for the purpose 
 and intent of defrauding, &c., without 
 alleging the purpose and intent to- have 
 been those of the grantor. 
 
 In ^uch a bill the insolvency of the 
 grantor is not shown by alleging, (1) that 
 at the time of the making of the deed the 
 grantor was indebted to the: plaintiff and 
 others in large sums of money; (2) and 
 was not at the time of making said deed. 
 
 or at any time since, able to pay hi^ 
 creditors and others, and (3) was and i^ 
 in fact insolvent. 
 
 Charges of fraud must be precise and 
 definite. Western Canada Loan Co. v. 
 Snow, 6 M.R. 317. .. 
 
 18. Pleading — Injunction — Parties to 
 action — Costs. ' 
 
 The plaintiffs, in an action before judg- 
 ment to set aside alleged fraudulent con- 
 veyances of his property by the defendant 
 Wright to His wife, obtained an interim 
 injunction to prevent further transfers of 
 the property by either defendant. 
 
 Held, that the injunction should be dis- 
 solved, because the statement of claim 
 contained no distinct allegation that the 
 grantor* was indebted to the plaintiffs at 
 the time of the alleged fraudulent con- 
 veyance. 
 
 Leave to amend the statement of claim 
 was granted; but, as it contained no suf- 
 ficient allegation of the indebtedness of the 
 grantor to the plaintiffs or any claim for 
 an order against him for payment and it 
 could not, therefore,- be determined, until 
 after the amendments were made, what 
 relief would be claimed against the alleged 
 fraudulent grantor which might make mm 
 a proper party or whether he would or 
 would not be retained as a party. 
 
 Held, that the plaintiffs should be 
 ordered to pay the defendants', costs of 
 the motion for injunction and of the appeal 
 forthwith. Traders Bank v. Wright, 17 
 M.R. 614. 
 
 ' 19. Proceedings to set aside — King's 
 Bench Act, Rules 507, 742, and 743 — Order 
 for sale of land to realize judgment — Affi- 
 davits in support of motion for — Evidence 
 to prove registration of certificate of judg- 
 ment — Gift from husband to wife made prior 
 to incurring of debt. 
 
 1. A motion under Rules 742 or 743 of 
 the King's Bench Act for an order to set 
 aside an alleged fraudulent conveyance of 
 land, and for the sale of the land to realize 
 the amount of a registered judgment, is 
 not an interlocutory motion within the 
 liieaning of Rule 607, and affidavits 
 grounded merely on information and belief 
 are not sufficient to support such motion. 
 
 Gilbert v. Endean, (1878) 9 Ch.D. 259, 
 followed. 
 
 2. The only proper evidence of the reg- 
 istration of a certificate of judgment is a 
 certified copy of it: lHassey Harris v. 
 Warmer, (1897) 12 M.R. 48. 
 
485 
 
 FRAUDULENT CONVEYANCE. 
 
 486 
 
 3. Where the debt for which a judgment 
 was recovered was incurred more than a 
 year after the gift from a debtor to his 
 wife complained of, and it was not shown 
 that the property conveyed constituted 
 the whole or even a substantial part of the 
 property owned by the debtor at the time, 
 the conveyance should not be held to be 
 fraudulent. Canada Supply Co. v. Bobb, 
 20 M.R. 33. 
 
 20. Purchaser without notice — 
 
 Queen's Bench Ad, 1895, Rules 803 to 807— 
 • Bona fide purchaser — Garnishment — Land, 
 interest in — Vendor's lien. 
 
 Plaintiffs moved under Rules 803 to 807 
 of The Queen's Bench Act, 1895, for an 
 order for the sale of a parcel of land alleged 
 to have bfeen purchased by defendant -in 
 his wife's name for the piupose of delaying, 
 hindering or defrauding the plaintiffs, as 
 judgment creditors of defendant; but it 
 was shown on the return of the motion 
 that the wife had entered into an agree- 
 ment for the sale of the land to a bona fide 
 purchaser who had paid a part of his pur- 
 chase money and entered into possession. 
 
 The plaintiffs then served a notice of 
 motion on the, purchaser, cg,lling on him to 
 appear and state the nature of his claim, 
 and either maintain or relinquish the 
 same. 
 
 Held, that both motions must be dis- 
 missed, as the purchaser could not be 
 called upon to defend himself in such a 
 proceeding, and neither the husband nor 
 the wife after the sale had ainy interest in 
 the land, within the meaning of the Rules, 
 which could be ascertained and sold 
 thereunder, and the plaintiffs' only remedy 
 under the circumstances would be under 
 the garnishing provisions of The Queen's 
 Bench Act. 
 
 A vendor's hen is not an interest in land : 
 Pdrke v. Riley, 3 E. & A. 215; Perry on 
 Trusts, aection 238; Overton on Liens, sec- 
 tion 612. It is only a remedy for a debt, 
 and is neither a right of property,"aii estate 
 in lands, nor a charge on the land. Bank 
 of Montreal v. Condon, 11 M.R. 366. 
 
 21. Purchaser without notice — Inter- 
 pleader issue — Sale of lands to daughter of 
 judgment debtor — Family transactions. 
 
 The jiidgment debtor having received 
 notice of the judgment creditor's intended 
 suit against her went to Winnipeg, where 
 her daughter was living, and sold her farm 
 to her for the purpose of defeating her 
 creditor's claim, but the daughter was not 
 
 aware of her mother's purpose in selling 
 and, not being infoj:med of the threatened 
 suit, paid her money in good faith and 
 received a conveyance of the land... The 
 daughter then leased the land to her 
 brother, and the Judge found that this 
 lease was also in good faith. The brother 
 cropped the land for himself and after- 
 wards the crops were seized in execution 
 against the mother. 
 
 Held, that any such crops must be 
 deemed to be the property of the son and 
 not of his mother as against the execution 
 creditor. Althougli family transactions 
 by which creditors are defeated are 
 ordinarily looked upon by the Court with 
 a good deal of suspicion, yet when the 
 evidence is clear and satisfactory they 
 will not be set aside. McDonald v. Mc- 
 Queen, 9 M.R. 315. 
 
 22. Voluntary settlement — 27 Eliz.j^ 
 c. 4 — Consideration — Subsequent purchaser 
 for value. 
 
 The wives of the defendants were 
 sisters and, on the death of Nicastro's 
 wife, the defendant Pinaro, from motives 
 of humanity and relationship, took over 
 and afterwards maintained the infant 
 children of Nicastro, with his consent, as 
 the latter was, through habitual and 
 excessive drinking, unable to take care of 
 them. About ei^t months afterwards, 
 Nicastro conveyed to Pinaro the property 
 in question, being all he had in the world, 
 in trust for the maintenance of the children 
 and Pinaro continued to support and 
 maintain them. One year later, Nicastro 
 gave an a^eement of sale of the property 
 to the plaintiff for a valuable considera- 
 tion. 
 
 Held, (1) At the time of the conveyance 
 to Pinaro, he had a good cause of action 
 against Nicastro on the implied contract 
 to- pay for the support and maintenance 
 of the children; and, as a pre-existing debt 
 may be a valuable consideration, the deed 
 was not voluntary in~its inception. 
 
 Cracknally. Sanson, (1879) 11 Ch.D. 10, 
 followed. 
 
 (2) There was, at all events, an ex post 
 facto consideration sufficient to support 
 the deed, in that Pinaro continued to 
 maintain the children for a year before 
 the conveyance to the plaintiff. 
 
 Prodgers v. Langham, (1675) Sid. 133; 
 Johnson y.Legard, (1822) T. & R. 294, and 
 Bayspoole v. Collins, (1871) L.R. 6Ch. 292, 
 followed. Eggertson v. Nicastro, 21 M.R. 
 255. 
 
487 
 
 FRAUDULENT DISCHARGE. 
 
 488 
 
 See Exemptions, 7. , 
 — , Garnishment, JII, 3. 
 
 — Parties to Action, 2. 
 -^ Pleading, IV, 1, 2. 
 
 — Practice, XVII, 2. 
 
 — Voltjntart Conveyance. 
 
 FRAUDULENT DISCHARGE. 
 
 See Garnishment, VI, 3. 
 
 FRAUDULENT JUDGMENT. 
 
 1. Collusive ' judgment for valid 
 claim — Confessing jvdgmeni — Fraudulent 
 , preference. , 
 
 In pursuance of an agreement made 
 between the defendant H. (who was then 
 in insolvent circumstances) and certain 
 of his creditors, two documents were exe- 
 cuted. By the first the creditors released 
 H. from all liability in respect of notes 
 held for his indebtedness to them, and 
 undertook to indemnify -him against the 
 payment of any such notes as might be 
 under discount. By the same instrument 
 the original debts were revived, and 
 became immediately payable. 
 
 By the second instrument the creditors 
 assigned aU their claims to the defendant 
 D. in order that an action might be 
 brought for the recovery of all the claims. 
 
 It was at the same time verbally agreed 
 
 that such an stction should at once be 
 
 brought, and that defendant H. should 
 
 _ facilitate the obtaining of the judgment. 
 
 On the day after the execution of these 
 documents, a writ was issued. Service 
 was at once accepted by an attorney for 
 ;H. Declaration and pleas were filed on 
 the same day. On the day following, the 
 defendant was examined on his plea, and 
 on the next an order was made striking 
 out the pleas, upon which judgment was 
 signed 'and execution issued. 
 
 Upon a bai filed by a subsequent judg- 
 ment creditor. 
 
 Held, upon re-hearing, reversing the 
 judgment of Taylor, J., IM.R. 135, and 
 following McDoifiald v. Crombie, 11 S.C.R. 
 107, that the judgment was not void as a 
 fraudulent preference. Union Bank v. 
 Douglass, 2 M.R. 309. 
 
 ~ 2. Evidence to prove the fraud — 
 
 Judgment where no debt owing — Interpleader 
 — Form of issue — Admissibility of evidence 
 under. 
 
 The fact that a debtor facilitates one 
 creditor in obtaining speedy judgment in 
 a mode other than those prohibited by 
 section 122- of The Administration of 
 Justice Act, 1885, (R.S.M., c- 1, s, 60} , 
 does not, of itself; render the judgnleiit 
 void as against other creditors. 
 
 An interpleader issue provided for the 
 trial of the question whether the writs of 
 execution of the plaintiffs against L., or 
 some or one of them, were entitled to 
 priority over the writ of execution of the 
 defendant against L., with respect "to the 
 proceeds of the sale of the goods and 
 chattels of the said L. realized by the 
 sheriff. 
 
 Held, that it was open to the plaintiffs 
 on this issue to show at the trial that there 
 was no debt owing from L. to the defend- 
 ant, and that the judgment was merely a 
 fraudulent device to defeat, delay or 
 defraud creditors, and so void as against 
 the plaintiffs. 
 
 L. was in financial difficulties and several 
 actions had been begun against him by 
 creditors, when the defendant, his wife, 
 brought an action on two sums of money 
 alleged to have been lent by her to L. — 
 $1,000 lent in 1888 and Sl,200 lent in 
 1889. L. was at that time heavily in 
 debt. The first sum was paid for loss 
 under a policy of Are insurance. The 
 insurance, it was alleged, was on goods 
 partly the property of L. and partly of 
 his wife. The insurance was mostly on 
 hotel furniture, which was paid for by L. 
 The wife claimed part of the insurance to 
 have been on her wardrobe, but there was 
 no. evidence to shew its, value or the 
 amount for which it was insured. L. 
 effected the insurance, paid the pjemiums, 
 and received the insurance money after 
 the loss. The second sum was derived 
 from property that had belonged to the 
 husband and- was conveyed to the wife 
 without consideration. 
 
 The trial Judge found that the debts 
 that L. owed at the time of these transac- 
 tions were subsequently paid, and before 
 any indebtedness to the plaintiffs arose. 
 It appeared, however, that L. during this 
 time was not succeeding in his business, 
 but running into greater debt. 
 
 Held, that these transactions were only 
 so many devices to protect the property 
 of L., both from existing and future 
 creditors. Newman v. Lyons, 8 M.R. 271. 
 
 3. Husband and wif e— Loan to ftusband 
 — Evidence — Burden of proof — Possession 
 by husband of wife's separate^ estate. 
 
489 
 
 FRAUDULENT PREFERENCE. 
 
 490 
 
 The plaintiffs, creditors of the defendant 
 E. D., filed a bill to set aside as fraudulent 
 and void a judgment recovered by the 
 other defendant, E. D.'s wife, against her 
 husband, claiming that the husband really 
 did not owe his wife the money for which 
 she sued him. The defendants in their 
 sworn answers both stated that the 
 husband did owe the wife the money for 
 which the suit had been brought. At the 
 hearing the only evidence for the plaintiffs 
 was the testimony of some of the creditors 
 of the husband, who showed that the 
 debtor in giving statements of his affairs 
 from time to time had not inqluded the 
 alleged indebtedness to his wife, and evi- 
 dence of certain statements made by the 
 husband respecting the wife's suit against 
 - him. 
 
 Held, that the statements made by the 
 husband were not evidence against his 
 wife and, there being no evidence to dis- 
 place the sworn statements of the defend- 
 ants in their answers, that the bill must 
 be dismissed with costs. 
 
 One of the witnesses at the trial, Mrs. D. 
 being present, gave evidence of an alleged 
 statement of her husband that her judg- 
 ment was got for a cloud, and plaintiffs' 
 counsel contended that she was bound to 
 deny this, relying on Barber v. Furlong, 
 [1891] 3 Ch. 184. 
 
 Held, that such a rule as was applied in 
 -that case was not applicable in the present 
 case, and especially since the defendant, 
 although sitting in Cotirt, did not under- 
 stand the language spoken by the wit- ' 
 nesses, but only French. 
 
 While there may be a presumption that 
 the income of a wife's separate property 
 received by the husband is to be regarded 
 in the Ught of a gift, there is no such pre- 
 sumption where he has received the corpus, 
 (R.S.M. c. 95, s. 5),'and the wife can, with- 
 out any evidence of a bargain or agreement 
 for a loan, recover back the corpus of her 
 separate estate even after it gets into the 
 husband's possession. Thompson v. Did- 
 ion, 10 M.R. 246. 
 
 4. Indicia of fraud — Corroborative testi- 
 mony — Circumstances sufficient to shift onus 
 of establishing consideration. 
 
 I. M. M. trading as M. & Co., having 
 been carrying on a business of which 
 J. A. M., her husband, was the manager, 
 became insolvent. The defendant C, a 
 confidential friend of J. A. M., recovered 
 a judgment for $3,468.22 against I. M. M. 
 and J. A. M. This suit was brought by 
 
 the plaintiffs — ^large creditors of M. & Co. — 
 to set this judgment aside. I. M. M. and 
 J. A. M. refused to attend to give evidence 
 at Winnipeg and afterwards at Spokane 
 Falls, Wash., U. S. A. The consideration 
 for the judgment was alleged to be $1,450 
 accommodation paper endorsed by the 
 defendant C, and $2,000 advanced in 
 cash in varying amounts for which no 
 receipts had been given and of which no 
 entries had been made. 
 
 Held, 1. That the transaction, being one 
 surrounded by the greatest doubt and 
 suspicion and being contrary to the 
 ordinary rules of business, could not be 
 upheld on the bare evidence of the 
 defendant C. alone. 
 
 2. That it was incumbent upon the 
 defendant C. to have procured the evi- 
 dence of the M's or to have shewn that 
 he had taken steps to procure it. Gowans 
 V. Chewier, 7 M.R. 62. 
 
 6. Injunction to stay proceedings 
 upon — Fraudulent prefefence-—Judgmen 
 obtained by consent. 
 
 The defendant N. being indebted to the 
 defendants C. and S., they commenced an 
 action against him to recover the amount 
 due. An acceptance of service was given, 
 appearance entered, declaration and pleas 
 filed, an order to strike out the pleas 
 obtained, judgment signed and execution 
 issued all on the same day. Plaintiffs 
 had also obtained judgment and execution 
 against N., and now filed their bill to set 
 aside the judgment and execution ob- 
 tained by defendants C. and S. 
 
 On an appUcation to continue an 
 interim injunction to restrain proceedings 
 upon the judgment of the defendants C. 
 and S, 
 
 Held, that the injunction should be 
 continued till the hearing. Whitham v. 
 Cooper, 2 M.R. 11. 
 
 See Examination op Judgment Dbbtor,6. 
 
 FRAUDULENT PREFERENCE. 
 
 I. ] Assignee for Creditohs, Rights 
 
 OF. 
 
 11. Assignment of Chose in Action. 
 
 III. Assignments Act. 
 
 IV. Husband and Wife, 
 
 V. Insolvent Cibcumstances. 
 VI. Pressure and Intent to Prefer. 
 
491 
 
 FRAUDULENT PREFERENCE. 
 
 492 
 
 I. Assignee for Cbeditoks, Rights op. 
 
 Bankruptcy and insolvency— Chattel 
 
 fnorigage^— Satisfaction of first by second — 
 
 Secrepy, evidence of fraud—Official assignee. 
 
 W. became indebted to defendant, in 
 
 1886, for moneys advanced; in January, 
 
 1887, defendant pressed W. for security, 
 when he gave defendant a chattel mortgage 
 on his stock-in-trade; at that time he was 
 insolvent. In January, 1889, W. gave 
 defendant a second chattel mortgage. 
 The two mortgages were identical, except 
 in their dates and the times when the 
 money was to be paid, The &st mort- 
 gage was never filed; the second was. 
 Shortly afterwards W. made an assign- 
 ment to the official assignee under 49 
 Vic:, c,45 (R.S.M., c. 7). 
 
 Upon a bill filed by the official assignee 
 praying that the mortgages might be 
 declared fraudulent and void as against 
 him. 
 
 Held, that, under the circumstances, 
 the first mortgage could not be held void 
 as a preference, even if the mortgagor was 
 insolvent when it was given. To render 
 a transaction void as a preference, it must 
 be the result of the pure voluntary act of 
 the debtor. 
 
 The Molson's Bank v. Halter, 18 S.C.R. 
 88, asA Stephens v. McArthur, 19 S.C.R. 
 446, followed. 
 
 Held, also, that the assigimient took 
 priority over the first mortgage by virtue 
 of its prior filing. 
 
 The first mortgage was a good considera- 
 tion for the second. The first was given 
 in pm-suanoe of a demand from the mort- 
 gagee that he must have the money or 
 securitjr, and that demand must be taken 
 as continuing to be made until payment. 
 The second mortgage given in substitution 
 for the first must be equally as good as the 
 first. The second mortgage was not void 
 on account of the agreement to postpone 
 registration. 
 
 As soon as the fact of an assignment for 
 creditors has been communicated to a 
 creditor who, though he may not execute 
 it, does ilot repudiate it, a binding, irre- 
 vocable trust is created which constitutes 
 the trustee a purchaser for value. Bert- 
 rand V. Parkes, 8 M.R. 176. 
 
 II. Assignment op Chose in Action. 
 
 Pleading. 
 
 Plaintiff, as assignee of M. & G., under 
 an assignment for the benefit of their 
 creditors, sued defendant to recover the 
 
 amount of an account due by him to 
 M. & G. Defendant pleaded that, prior 
 to the assignment to the plaintiff, M. & G. 
 had assigned •the accounts in question to 
 S. by instrument in writing. Plaintiff 
 replied, setting up facts showing that the 
 assignment to S. was void as a fraudulent 
 preference. 
 
 Held, on demurrer, that this replication 
 was baid because the assignment to S. 
 could not be declared fraudulent and void 
 in this action, as S. was not a party to it. 
 Bertrand v. Hooker, 10 M.R. 445. 
 
 Not followed. Clay v. Gill, 12 M.R. 
 465. 
 
 III. Assignments Act. 
 
 1. Assignments Act, R.S.M., 1892, 
 
 C. 7, s. 33—63 & .64 Vic. (M.), c. 3, s. 1— 
 Trust assignment made to a creditor — 
 Pressure — Creditor's knowledge of the 
 debtor's insolvency. 
 
 Under section 33 of The Assignments 
 Act, R.S.M. , c. 7f a mortgage given by a 
 debtor to a creditor to secure his claim 
 may be set aside as a preference although 
 it has been obtained by pressure and was 
 given by the debtor without any active 
 desire to prefer the mortgagee to his other 
 creditors, if the debtor knew or ought to 
 have known that such would be the result 
 of giving the mortgage. 
 
 When- an assignment in trust for credi- 
 tors is made to one of the creditors of the 
 assignor, the assignee ma^ under section 
 39 of the Act bring an action to set aside 
 a fraudulent preference without showing 
 the acceptance of the benefit of the assigil- 
 ment by any other creditor or commimi-' 
 cation of it to any other: Mackinnon v. 
 Stewart, (1850) 1 Sim. N.S. 76; Siggers v. 
 Evans, (1855)- 5 E. & B. 367. 
 
 An assignment of property made by a 
 debtor for the benefit of his creditors 
 generally is, by virtue of section 2 (o) of 
 the Act, an "assignment under this Act," 
 although the description of the property 
 may not be in thfe words set forth in section 
 3 or in words to the like effect. 
 
 Held, also, following Stephens v. Mc- 
 Arthur, (1890) 6 M.R. 496, notwithstand- 
 ing the decisions of the Ontario Court of 
 Appeal in Johnson v. Hope, (1889) 17 " 
 A.R. 10, and Ashley v. Brown, (1890) Id. 
 500, that it is not necessary to show notice 
 to the transferee of the debtor's insolyent 
 condition; but that, ^ in any case, if the 
 transfer p had such a knowledge of the 
 debtor's financial position that an ordinary 
 
493 
 
 FRAUDULENT PREFERENCE. 
 
 484 
 
 business man would conclude from it that 
 the debtor was imableJ.o meet his liabili- 
 ties, constructive notice of the insolvency 
 should be imputed to him. 
 
 National Bank of Australasia v. Morris, 
 [1892] A.C. 287, foUowed. Schwartz v. 
 Winkler, 13 M.R. 493. 
 
 2. Assignments Act, R.S.M., 1892, 
 C. 7, s. 33—63 & 64 Vic. (M.), c.-3, s. 1— 
 Motive actuating debtor in giving security to 
 preferred creditor — Pressure. 
 
 In giving the chattel mortgage impeach- 
 ed in this action it -appeared that the 
 dominant motive of the debtor was to 
 make an arrangement for continuing his 
 business, the defendant having induced 
 him to give it by promises of assistance in 
 carrying him along and in arranging with 
 other creditors, although not in any 
 definite way enforceable in a court of law. 
 
 Held, that, under section 33 of The 
 Assignments Act, R.S.M., c. 7, as amended 
 by 63 & 64 Vic., c. 3, s. 1, there must still 
 be the intent on the part of the debtor to 
 prefer the particular creditor in order to 
 set aside the impeached conveyance; and, 
 while the effect of it may be to place that 
 creditor in a more advantageous position 
 thaii other creditors and the debtor may 
 recognize at the time that such will be the 
 effect, yet if he gave it for some other 
 purpose or in the hope that he might thus 
 be enabled to avoid insolvency, it cannot 
 be considered that he gave it with intent 
 to give a preference and the security 
 should stand. 
 
 Stephens v. McArthur, (1891) 19 S.C.R. 
 J46; New Prance & Garrard's Trustee v. 
 Bunting, [1897] 2 Q.B. 19; S. C. sub nom. 
 Sharp V. Jackson, tl899] A.C. 419; Lawson 
 V. McGeoch, (1893) 20 A.R. 464, and Arm- 
 strong V. Johnson, (1900) 32 O.R. 15, 
 followed. 
 
 Although the amending Act declares 
 that a prima facie presumption of an 
 intent to prefer is to arise from the effect 
 of such a transaction, this does not justify 
 the Court in looking only to the effect and 
 refusing to attach any weight to the 
 proved facts as to the actual intent. The 
 presumption, being only prima fade, may 
 be rebutted by evidence. 
 
 Held, also, that the Court need not 
 determine whether the preferred creditor 
 was acting bona fide or really anticipated 
 that the other creditors could be arranged 
 with and the business continued, it being 
 only the debtor's mental attitude that 
 should be considered 
 
 Per Richards, J., dissenting. — The 
 security having been obtained by deceitful 
 representations of the defendant's agent, 
 it should not be allowed to stand. Cod- 
 vUle V. Fraser, 14 M.R. 12. 
 
 3. Assignments Act, R.S.M. 1902, 
 C. 8, ss. 40, 48 — Action by creditor to set 
 aside preference when no assignrhent under 
 Act — Amendment of statement of claim 
 after expiration of time limited for suit. 
 
 Action conmienced on 2nd November, 
 1903, to set aside, as a fraudulent prefer- 
 ence, an assignment to defendant, dated 
 5th September, 1903, by one Cockrill, of 
 certain moneys payable under fire insur- 
 ance policies to secure defendant's claim 
 against CockriU. 
 
 No assignment having been made by 
 Cockrill under The Assignments Act, 
 R.S.M. 1902, c. 8, plaintiffs alleged in the 
 statement of claim that they brought the 
 action on "behalf of themselves and all 
 other creditors of CockriU . . . who 
 are willing to join in and contribute 
 towards the payment of the expenses 
 thereof."- 
 
 Section 48 of the Act provides that, 
 when there has been no assignment under 
 the Act, an action to impeach a transaction 
 as a fraudulent preference must be brought 
 "for the benefit of creditors generally, or 
 for the benefit of such creditors as have 
 been injured, delayed or prejudiced," and 
 section 40 requires that such an action 
 should be brought within sixty days from 
 the time the transaction impeached took 
 place. 
 
 On 4th December following, plaintiffs 
 amended the statement of claim by 
 adding, after the words first above 
 quoted, the words, "and the same , is 
 brought for the benefit of the creditors 
 generally of the said debtor." 
 
 Held, that there was no suit-brought for 
 the benefit of the crieditors generally, or of 
 such as had been injured, delayed or 
 prejudiced, to impeach the transaction in 
 question until the amendment of 4th 
 December was made, which was more than 
 sixty days after the date of the impeached 
 transaction; and that this objection wag 
 fatal, notwithstanding the provision in 
 section 48 (6) that, "in case any amend- 
 ment of the statement of claim be made, 
 the same shall relate back to the com- 
 menceinent of the action for the purpose 
 of the time limited by the 40th section 
 hereof." 
 
 The right to sue and the relief to be 
 given are created by the statute and mus t 
 
495 
 
 FRAUDULENT PREFERENCE, 
 
 496 
 
 be construed strictly. The amendments 
 referred to in that provision must, in strict 
 construction, be confined to allegations of 
 law or fact upon which the relief is to be 
 foundeji, and that provision pre-supposes 
 an action to have been commenced in the 
 form provided within sixty days. 
 
 Byron v. Cooper, (1844) 11 CI. & Fin. 
 556; Bedford v. Boulton, (1878) 25 Gr. 561; 
 Weldon v. Neal, (1887) 19 Q.B.D. 394, and 
 - Davidson v. Campbell, (1888) 5 M.R. 250, 
 followed. '' 
 
 ■ On the merits, also, the findings of fact 
 were that the impeached assignment was 
 not ' a fraudulent preference within the 
 meaning of the Act, as it was only the last 
 of a series of transactions all connected 
 together which shtould be treated as a 
 whole and, so treated, were not open to 
 attack. Ferguson v. Brydns, 15 M.R. 170/ 
 
 4. Assignments Act, R.S.M. 1902, 
 C. 8, ss. 41, 44, 46, 46 — Sale of stock to 
 person who assumes liability of insolvent to 
 creditor. 
 ^ A trading firm being indebted to G. in a 
 
 large amount and G. being dissatisfied 
 with the jjayments received and the man- 
 ner in which the firm carried on its busi- 
 ness, but not knowing or having reason to 
 believe that they wepe unable to meet 
 their habihties, an arrangement was made 
 and carried out whereby the traders sold 
 their stock in trade to L. and received the 
 price in cash less the amount of G.^ claim 
 which was assumed by L., G. giving time 
 to L. for payment, and releasing the 
 traders. Within sixty days the trading 
 firm made an assignment to the plaintiff 
 utider The Assignments Act, R.S.M. 1902, 
 C. 8, for the benefit of creditors generally. 
 • Held, that; as the sale to L. was not 
 impeached, the agreement whereby L. was 
 to pay the insolvent's debt to G. could not 
 be set aside as a fraudulent preference 
 under section 41 of the Act; that the effect 
 of it was the same as if L. had paid the 
 full purchase money to the insolvents and 
 they had paid G. in full out of it, and so 
 the case came within the saving clause of 
 the Act, section 44, protecting payments 
 of money, and that there was no assign- 
 ment or transfer of anything by the 
 insolvents to G. which could be declared 
 fraudulent and void under section 41. 
 ■Gibbons v. Wilson, (1890) 17 A.R. 1, 
 and Johnson V. Hope, 17 A.R. 10, followed. 
 
 Bums V. Wilson, (1897) 28 S.C.R. 207, 
 explained. 
 
 Held, also, that the transaction attacked 
 * could not be held void under section 45 of 
 
 the Act, which is limited in its scope to 
 jtransfers of considerations other than 
 money, such as bills, notes or goods. 
 , Quoere, whether, if the plaintiff had been 
 held entitled to the relief asked for, G. 
 would then have had the right, under 
 section 46 of the Act, to have restored to 
 him the claim he had previously held 
 against a surety for the insolvents, it being 
 urged that the^discharge of the insolvents 
 discharged the surety also. Newton v. 
 Lilly, 16 M.R. 39. 
 
 6. Assignments Act, R.S.M. 1902, 
 C. 8, s. 41 — Chattel mortgage—Exemptions, 
 
 A chattel mortgage, although given 
 under circumstances entitling a creditor 
 to have it set aside as a fraudulent prefer- 
 ence under section 41 of the Assignments 
 Act, R.S.M. 1902, c. 8, wiU, nevertheless, 
 be held valid as to any goods covered by 
 it which would, under section 29 of the 
 Executions Act, R.S.M. 1902, c. 58, be 
 exempt from seizure under execution. 
 
 Field v. Hart, (1895) 22 A.R. 449, fol- 
 lowed. Bates V. Cannon, 18 M.R. 7. 
 
 6. Assignments Act, R.S.M. 1902, 
 C. 8, ss. 40, 44, 48 (b) — Knowledge of 
 solicitor, when imputed to client — Action by 
 judgment creditor of grantor to set aside- 
 Parties to action. 
 
 , 1. A judgment creditor has a right to 
 bring an action to set aside a fraudulent 
 preference given by the judgment debtor 
 without setting up that his action is on 
 behalf of all the creditors; 'and, if the 
 action was commenced within sixty days 
 after the date of the alleged fraudulent 
 
 E reference, "^the plaintiff is entitled to the 
 enefit of the legal -presumption created 
 by section 40 of The Assignments Act, 
 R.S.M. 1902, c. 8, in such a case, viz., thait 
 a conveyance which has the effect of giving 
 a preference over creditors or over one or 
 more of _ them shall be utterly void as 
 against such creditor or creditors. 
 
 Ferguson v. Bryans, (1904) 15 M.R. 170, 
 distinguished. 
 
 2. Sub-section (6) of section 48 of the 
 •Act, providing that one or more creditors 
 may sue on behalf of all the creditors to 
 set aside a fraudulent preference, has not 
 taken away the right of a judgment 
 creditor to sue on his own bebalf . 
 
 3. When it is the duty of the solicitor 
 of the alleged fraudulent grantee to 
 divulge a fact as to the title, if he is aware 
 of it, there is an irrebuttable presumption 
 that he gave his client notice of that fact. 
 
497 
 
 FRAUDULENT PREFERENCE. 
 
 498 
 
 Rolland v. Hart, (1871) L.R. 6 Ch. 678; 
 Real Estate v. Metropolitan, (1883) 3 O.R. 
 490, and Schwartz v. Winkler, (1901) 13 
 M.R. 505, followed. 
 
 New trial ordered so that the question 
 whether the defendant was entitled to the 
 protection of section 44 of the Act, by 
 reason of having made "any present actual 
 bona fide pajonent in money," might be 
 determined. Ounn v. Vinegratsky, 20 
 M.R. 311. 
 
 7. Assignments Act, R.S.M. 1902, 
 c. 8, ss. 40, 42 and 4A— Insolvency, what 
 constitutes — Security valid as regards fresh 
 advances, though void as regards existing 
 debt — Pressure by creditor — Bills of Sale 
 and Chattel Mortgage Act, R.S.M. 1902, 
 c. 11 — Pleading — Simple contract creditor. 
 
 1. A debtor should be held to be "in 
 insolvent circumstances" within the mean- 
 ing of section 40 of The Assignments Act, 
 R.S.M. 1902, c. 8, if he does not pay his 
 way and is unable to meet the current 
 demands of his creditors and if he has not 
 the. means of paying them in fuU out of his 
 assets realized upon a sale for cash or its 
 equivalent, or when he is not in a con- 
 dition to pay his debts in the ordinary 
 course as persons carrying on trade 
 usually do. 
 
 Review of authorities upon question of 
 insolvency. 
 
 2. Under section 42 of the Act, a security 
 for a debt given to a creditor which has the 
 effect of giving him an advantage over 
 other creditors will be declared void, not- 
 withstanding that it has been secured by 
 pressure on the part of the creditor and 
 whether or not ^he creditor knew of the 
 debtor's insolvency. 
 
 3. Under section 44 of the Act, a chattel 
 mortage security given to a creditor for 
 an existing debt and also to cover fresh 
 advances, although void as to the existing 
 debt as being a fraudulent preference, 
 should be held good as regards any fresh 
 advances made to the debtor on the 
 strength of it. 
 
 Madery. McKinnon, (1892) 21 S.C.R. 
 645, arid' Goulding v. Deeming, (1888) 15' 
 O.R. 201, followed. 
 
 4. A simple contract creditor cannot 
 make an attack upon a chattel mortgage 
 under The BiUs of Sale and Chattel 
 Mortgage Act, R.S.M. 1902, c. 11. 
 
 Parkes v. St. George, (1884) 10 A.R. 496, 
 and Hyman v. Cuthbertson, (1885) 10 O.R. 
 443, followed. 
 
 5. When the plaintiff's statement of 
 claim is baaed entirely upon the provisions 
 of The Assignments Act, it is a departure in 
 pleading to set up in the reply a case based 
 upon The Bills of Sale and Chattel.Mort- 
 gage Act and such case should not be 
 recognized: Odgers on Pleading, 6th ed. 
 !249, 250. Empire Sash and Door Co. v. 
 Maranda, 21 M.R. 605. 
 
 IV. Husband and Wife. 
 
 Assignment of debt. 
 
 This was an interpleader issue in which 
 the plaintiff claimed that certain moneys 
 paid into Court by a garnishee under an 
 order procured by the defendant, a judg- 
 ment creditor of the plaintiff's husband, 
 had been assigned by her husband to her 
 before the garnishee order. Defendant 
 contended that the assignment was a 
 fraudulent preference, and that the 
 husband could not in law assign the debt 
 to his wife; and, at the trial before the 
 County Court Judge, a verdict was 
 entered for defendant on the latter 
 ground. 
 
 Held, that the verdict could not be sus- " 
 tained upon that ground, but that there 
 shouldsbe a new trial to enable the County 
 Court Judge to decide whether there had 
 been a fraudulent preference. 
 
 All the Judges agreed that the circum- 
 stances showed that the debt'or was 
 insolvent, and was aware of his insolvency, 
 and that the effect of the assignment was 
 to give the plaintiff a preference over his 
 Other creditors, but they were unable to 
 decide whether there was sufficient pres- 
 sure upon the debtor to save the assign- 
 ment vmder Molsons Bank v. Halter, 18 
 S.C.R. 888, a,ni Stephens v. McArthur, 19 
 S.C.R. 446; as the only evidence on this 
 point was that of the debtor, who said 
 that he had made the assignment at the 
 request of the plaintiff's solicitor. 
 
 The question to be determined ip such 
 case is whether the debtor was actuated 
 solely by a desire to prefer in making the 
 assignment, or whether the request to do 
 so was the moving cause. 
 
 Decision of Parke, B., in Van Casteel v. 
 Booker, 2 Ex. 691, followed. 
 
 Per Bain, J. — The evidence showed 
 there was no real pressure actuating the 
 mind of the debtor, and that he had made 
 the assignment solely with the intent to 
 prefer, and the original verdict for defend- 
 ant should stand. Colquhoun v. Seagram, 
 11 M.R. 339. 
 
499 
 
 FRAUDULENT PREFERENCE. 
 
 500 
 
 V. Insolvent Cibcumstances. 
 
 Intent to prefer. 
 
 The plaintiff, being the assignee of one 
 Lamonte under an assignment for the 
 benefit of his creditors, brought this 
 action to set aside a chattel mortgage on 
 Lamonte's stock-in-trade made in favor 
 of the defendants, on the ground that 
 Lamonte was at the time in insolvent 
 circumstances and unable to pay his debts 
 in full, and gave the defendants the mort- 
 gage as a preference over his other credi- 
 tors. 
 
 At the date of the mortgage, Lamonte, 
 who was a retail merchaiit, had a surplus 
 upon, his valuation of his stock of about 
 $1,000, besides a piece of land valiied by 
 him at 8750. He was carrying a stock of 
 $900 or $1,000, and had a profitable and 
 increasing business. Another creditor, as 
 his claim was about maturing, notified. 
 Lamonte that he insisted upon payment; 
 other considerable sums were already 
 overdue or about maturing which it was 
 impossible for him to meet at once; and 
 taking all the circumstances into con- 
 sideration the proper inference was that, 
 even upon the terms of credit on which 
 the sale was eventually made, Lamonte 
 could not at the time of making the mort- 
 gage dispose of his assets for sufiBcient to 
 meet his Uabilities. 
 
 Held, that he must be deemed to have 
 been then in insolvent circumstances, 
 and, as the giving of the mortgage "was 
 entirely at his suggestion and there was 
 no pressure on the part of the mortgagees, 
 it must be declared that the mortgage was 
 void as against the plaintiff. 
 
 Davidson v. Douglas, (1868) 15 Gr. 347, 
 and Wamock v. Kloepfer, (1887) 14 O.R. 
 288, followed; the latter qualified to meet 
 the case of a man whose liabilities are not 
 wholly matured and who could sell his 
 property on terms which will enable him 
 to pay those which have matured and the 
 others as they mature. Such _a man 
 should not bp deemed to be in insolvent 
 circumstances within the meaning ,of the 
 statute. Bertrand v. Canadian Rubber 
 Co., 12 M.R. 27. 
 
 VI. Pbessuee and Intent to Prefer. 
 
 1. Chattel mortgage. 
 
 The mortgagor was indebted to the 
 
 - bank on promissory notes which had been 
 
 renewed from time to time and partly 
 
 reduced. The manager refused to renew 
 
 again, and insisted on security, and the 
 
 mortgagor gave a chattel mortgage under 
 the pressure. The manager swore that 
 he did not know that the mortgagor had 
 other creditors at the time, and the mort- 
 gagor swore that he gave the mortgage 
 solely on account of the pressure and to 
 gain time. 
 
 HeM,, that the mortgage was valid. 
 Ontario Bank v. Miner, T.W., 167. 
 
 . 2. Chattel mortgage — Debt secured by 
 transferred notes^Statutes — Construction— 
 49 Vic, c. 45, s. 2 — Locus standi of creditor. 
 
 The Manitoba statute, 49 Vic, c. 45, 
 enacted that certain conveyances should 
 be fraudulent against creditors; provided 
 for voluntary assignments for the benefit 
 of creditors, and declared that the assignee 
 should have the exclusive right to sue for 
 the rescission of such conveyances; and, by 
 section 2, "Every gift, conveyance, etc., 
 of goods, chattels or effects * * * * 
 made by a person at a time when he is in 
 in insolvent circumstances * * * * 
 with intent to defeat, delay or prejudice 
 his creditors, or to give to any one or more 
 of them a preference over his other 
 creditors or over any one or more of them, 
 or which has such effect, shall as against 
 them be utterly void." 
 
 Held, 1. That the statute was intra vires 
 of the Legislature. 
 
 2. That the conveyances might be 
 attacked by creditors, where no assign- 
 ment had been made by the debtor. 
 
 A creditor in good faith, and without 
 ' knowledge that the debtor was insolvent, 
 took from him a chattel mortgage. The 
 transaction was straightforward and hon- 
 est, but the "effect" of it was to give the 
 mortgagee a preference over other credi- 
 tors. ~ . • 
 
 Held, that the mortgage was void as 
 against creditors. 
 
 A chattel mortgage was expressed to be 
 to secure payment of $870.34, which was 
 the amount owing by the mortgagor to the 
 mortgagee. A large portion of it, how- 
 ever, was represented by notes which the 
 mortgagee had, previous to the date of 
 the mortgage, transferred to a bank as 
 collateral security for his own debt. 
 
 Held, that the mortgage was not upon 
 that account invalid. 
 
 Fish V. Higgins, 2 M.R. 65, foUowed. 
 
 Per KiLLAM, J. — The section of the Act 
 declaring certain conveyances fraudulent 
 against creditors may be treated apart 
 from the other provisions of the statute, 
 as an independent enactment; and not, 
 therefore, idtra vires by reason only of its 
 
501 
 
 FRAUDULENT PREFERENCE. 
 
 502 
 
 association- with other statutory pro- 
 visions. 
 
 Held, on appeal to the Supreme Court, 
 (Patterson, Js, dissenting), that the word 
 "preference" in this Act imports a volun- 
 tary preference and does not apply to a 
 case where the transfer has been induced 
 by the pressure of the creditor. 
 
 Held, further, that a mere demand by 
 the creditor, without even a threat of legal 
 proceedings, is sufficient pressure to rebut 
 the presumption of a preference. 
 
 The words "or whi<^ has such effect" in 
 the Act apply only to a case where that 
 had been done indirectly which, if it had 
 been done directly, would have been a 
 preference within the statute. The pref- 
 erence mentioned in the Act being a vol- 
 untary preference, the instruments to be 
 avoided as having the effect' of a preference 
 are only those which are the spontaneous 
 acts of the debtor. Molsons Bank v. 
 Halter, 18 S.C.R., approved and followed. 
 
 Stephens v. McArthur, 6 M.R. 496, 19 
 S.C.R. 446. 
 
 3. Chattel mortgage — Description — 
 Interpleader^Misnomer. 
 
 One of the plaintiffs in an interpleader 
 issue was misnamed, being named "Robert 
 Mar Fisher," instead of "Robert Mar 
 Shaw." 
 
 Held, that this variance was not a 
 ground of non-suit, but merely a question 
 of identity, which could be shewn at the 
 trial. 
 
 Per DuBTTC, J. — The amendment could 
 be made at the trial under section 222 of 
 the C.L.P. Act, 1852. 
 
 The goods in a chattel mortgage were 
 described as "all and singular the goods 
 and chattels hereinafter mentioned and 
 described, being all the goods, chattels 
 and effects set forth and mentioned in the 
 paper writing hereimto annexed, marked 
 'A,' which goods, chattels and effects are 
 situate in a certain building occupied as a 
 store by the mortgagor on ... . 
 together with all the goods, chattels and 
 effects, stock-in-trade and merchandise 
 which the said mortgagor shall hereafter 
 purchase from the mortgagees, and place 
 in and upon the said premises during the 
 currency hereof." 
 
 The schedule annexed was in the form 
 set out in the judgment of Killam, J. 
 ■V Held, (KiLLAM, J., dissenting), that this 
 was a sufficient description of the goods 
 intended to be mortgaged. 
 
 Hovey v. Whiting, 14 S.C.R. 515, fol- 
 lowed. 
 
 49 Vic, c. 45, s. 2 (R.S.M., c. 7, s. 33), 
 provides that "every gift, conveyance, 
 etc., of goods, chattels or effects . • . • . . 
 made by a person at a time when he is in 
 insolvent circumstances, or is unable to 
 pay his debts in full, or knows that he is 
 on the eve of insolvency, with intent to 
 defeat, delay or prejudice his creditors, or 
 to give any one or more of them a prefer- 
 ence over his other creditors, or over any 
 one or more of them, or which has such 
 effect, shall, as against them, be utterly 
 void." 
 
 Held, that the preference provided 
 against in the statute is a voluntary prefer- 
 ence, and does not apply to a chattel mort- 
 gage given under pressure from a creditor, 
 and a mere demand without threatening 
 legal proceedings is a sufficient pressure. 
 
 The Molson Bank v. HaUer, 18 S.C.R. 
 88, and Stephens v. McArthur, 19 S.C.R. 
 446, followed. Fisher v. Brock, 8 M.R. 
 137. 
 
 4. Insolvency — 38 Vic., c. 5, s. 59 
 (Man.) — 13 Eliz., c. 5 — Practice — Power 
 of Judge to review his own order. 
 
 On 29th November, 1876, Y., being in 
 insolvent circumstances, but not to the 
 knowledge of M. & T., to whom he owed 
 a debt, made an assignment to them, under 
 pressure, of moneys coming to him from 
 H. on a building contract. On 1st Decem- 
 ber following a stop order in this action 
 was made and on 2nd December served 
 upon H. In an issue between M. & T., 
 the claimants, and the execution creditor. 
 
 Held, that choses in action are within 
 38 Vic, c. 5, s. 59 (Man.), but that the 
 assignment was not void within the pro- 
 visions of that Act. 
 
 Upon the comtruction of that section, 
 
 Held, (i) that there is no difference 
 between it and 13 Eliz., c. 5, except as to 
 the preference clause in the former; (ii) 
 the questions of bona fides, valuable con- 
 sideration, preference and fraud are for 
 the jury, and are not questions of law; 
 (iii) pressure by the creditor upon the 
 debtor removes the transaction from the' 
 operation of the Act; (iv) to bring the 
 transaction within the Act both parties 
 must be implicated in the attempted 
 fraud; (v) the transaction is not fraudu- 
 lent, though its effect may be to defeat or 
 delay creditors, if that be not its object. 
 
 Held, that, though it is usual for a 
 Judge to review his own order only when 
 obtained through mistake, or by unfair or 
 fraudulent means, his power to do so 
 
503 
 
 FRAUDULENT' REMOVAL OF GOODS. 
 
 504 
 
 extends to all orders made by himself, 
 however deliberately made. Tucker v. 
 Young, T.W. 186. 
 
 5. R.S.M., 1892, c. 7, S. 33— Chattel 
 mortgage. . 
 
 49 Vic, c. 45, s. 2 -(R.S.M., c. 7, s. 33) 
 does not make void a conveyance or 
 mortgage merely because its effect is to 
 give one creditor a pi'eference over other 
 creditors, but there must be an intent to 
 prefer. 
 
 Semble, the addition of the words, "or 
 which has such effect," has not extended 
 the operation of the statute beyond what 
 it would have had without them. 
 
 Where a, chattel mortgage effected a 
 preference, but it was given for valuable 
 consideration and in response to a bona 
 fide demand from the mortgagee. 
 
 Held, that the fraudulent intent was 
 rebutted: 
 
 Molsons Bank v. Halter, IS S.C.R. 88, 
 and Stephens v. McArthur, 19 S.C.R. 446, 
 followed. , Roe v. Massey' Manufacturing 
 Company, 8 M.R. 126. 
 
 6. Interpleader issue — Appeal from 
 
 Judge's finding of fact. , 
 
 Since the passing of the Act 47 Vic, 
 c. 53, no chkttel mortgage can, upon an 
 interpleader issue, be declared void under 
 Con. Stat. Man. c. 37, s. 96. (Now 
 obsolete.) 
 
 Circumstances surrounding the execu- 
 tion of a chattel mortgage, in their ten- 
 dency to show a fraudulent preference, 
 discussed; and the trial Judge's finding 
 thereon reversed. McMillan v. Bartlett, 2 
 M.R. 374. ^ 
 
 See Administration, 2, 6. 
 
 — Fkaudulent Judgment, 1. 
 
 — Jurisdiction, 10. 
 
 FRAUDULENT REMOVAL OF 
 GOODS. 
 
 See Criminal Law, VI, 4. 
 
 FUNCTUS OFFICIO. 
 
 See Arbitration and Award, 13. 
 — Costs, XI, 7. 
 —r Railways, I, 1. 
 
 FUND IN COURT. 
 
 See Solicitor's Lien fob Costs, 5. 
 
 FUNERAL EXPENSES. 
 
 See Administration, 7. 
 — Workmen's Compensation fob In- 
 juries Act, 4. 
 
 FURTHER DIRECTIONS. 
 
 See Costs, X, 4. 
 
 — Principal and Agent, V, 9. 
 
 FURTHER EVIDENCE, ADMISSION 
 OF. 
 
 See Real Propebtt Act, I, 7. 
 
 FURTHER EVIDENCE ON APPEAL. 
 
 See Trespass and Trover, 1. 
 
 FURTHER RELIEF. 
 
 See Election Petition, VI, 1. 
 
 — Vendor and Purchaser, VI, 11, 12. 
 
 GAME PROTECTION. 
 
 See Constitutional Law, 4. 
 
 FRAUDULENT REPRESENTATIONS. 
 
 See Misrepresentation. 
 
 — Undue Influence. 
 
 — Warranty, 5. 
 
 GAMING. 
 
 See Criminal Law, XV; 1, 2, 3. 
 
505 
 
 GAMING HOUSE. 
 
 606 
 
 GAMING HOUSE. 
 
 See Criminal Law, XVI, 3. 
 
 GARNISHMENT. 
 
 1. ArpiDAViT FOB, Requisites op. 
 
 II. Cases in Which Nq Gabnishing 
 Order can be Obtained Before 
 Judgment. 
 
 III. Jurisdiction op County Court 
 
 Judge. 
 
 IV. What Mat be Garnished. 
 
 V. What May Not be Garnished. 
 VI. Other Cases. 
 
 I. Affidavit for. Requisites of. 
 
 , 1. By whom to be made — Garnishing 
 proceedings — Affidavit by "Servant or 
 Agent." 
 
 Held, an affidavit for a garnishing order 
 must be made by the plaintiff himseK, or 
 by his attorney, or by some one in the 
 plaintiS s employment, conductiag his 
 business, and in that way having a 
 knowledge of his affairs. Lee v. Sumner, 
 2 M.R. 191. 
 
 2. Form and contents — Debt due — 
 Action pending. 
 
 ■ Held, that the omission to state in 
 terms that "the action is pending," in an 
 affidavit on which a_ garnishing order is 
 made, is a fatal objection to the order. 
 Shorey v. Baker, City of London Fire Insur- 
 ance Co., Garnishees, 1 M.R. 282. 
 
 3. Form and contents — Garnishees 
 "reside" within the jurisdiction. 
 
 An affidavit upon which a garnishing 
 order issued stated that the garnishees 
 reside — ilot that they are—- within the 
 jurisdiction. ■. 
 
 Held, sufficient. Hamilton v. McDon^ 
 aid, 2 M.R. 114. 
 
 4. Form and contents — Sufficiency 
 of — Locus standi of judgment debtor. 
 
 An affidavit for a garnishing order 
 stated: — "I have reason to believe that 
 the City of Wnmipeg is indebted to, 
 liable to, or under some obligation to the 
 defendants." 
 
 Held, 1. Sufficient. 
 
 2. That all objections to the validity of 
 garnishing orders are open to the judgment 
 debtor. St.Boniface v. Kelly, City of Win- 
 nipeg, Garnishees, 2 M.R. 219. 
 
 P. Form and contents — Evidence of 
 indebtedness. 
 
 Held, an affidavit for a garnishing order 
 must either state positively that the 
 garnishee is indebted or liable to the 
 defendant, or it must follow the exact' 
 wording of the amending statute, 46 Vic, 
 c. 49, s. 12, that deponent "has reason to 
 believe." It is not sufficient to state that 
 the deponent is "informed and verily 
 believes." Grant v. Kelly, Blanchard, 
 Garnishee, 2 M.R. 222. 
 
 6. Form and contenta— Setting aside 
 order. , 
 
 Held, 1. The greatest strictness is re- 
 quired as to the material ,upon which a 
 garnishing order before judgment is ob- 
 tained. 
 
 2. The omission of the words "after 
 making all just allowances" is fatal, 
 although the action be for malicious 
 prosecution. 
 
 3. A statement that^he garnishees (an 
 incorporated bank) have an agency and 
 branch estabUshment for the transaction 
 of all business of the bank at the City of 
 Winnipeg, is not a positive statement 
 that the garnishees are within the juris- 
 diction, and is insufficient. 
 
 i.Quare, can a garnishing order be 
 \ obtained in an action for maUcious 
 prosecution? Nagengast v. Miller, 3 
 M.R. 241. 
 
 See now Mclntyre v. Gibson, 17 M.R. 
 423, and Hart v. Dvbrule, 20 M.R. 234. 
 
 7. Form and contents — Style of cause. 
 Upon an application to set aside a 
 
 garnishee attaching order obtained after 
 judgment: — 
 
 1. Upon the ground that in the affidavit 
 upon which it was granted the names of 
 the garnishees appeared in the style of 
 cause. 
 
 Held, although irregular, these names 
 were surplusage. 
 
 2. Upon the ground that in the style of 
 cause in the order the plaintiff and de- 
 fendant were not called "judgment credi- 
 tor" and "judgment debtor" but "plain- 
 tiff" and "defendant." 
 
 Held, not a fatal objection. 
 
 3. The affidavit as to the garnishees 
 being within the jurisdiction was as fol- 
 lows: "I am informed and have reason 
 to believe" that so and so, naming them, 
 are indebted, &c., to the extent of about 
 $120, "And the above named garnishees 
 reside within," &c. 
 
 Held, sufficient. 
 
507 
 
 GARNISHMENT. 
 
 508 
 
 4. The order S,ttached debts to answer 
 a judgment "to be recovered," whereas 
 the judgment had already been recovered. 
 
 Held, amendable. 
 
 A judge has power to rescind the ex 
 parte order of another judge. Ontario 
 Bank v. Page, 3 M.R. 677. 
 
 8. Form and contents— TJesiderece of 
 garnishee — PrScedure prescribed by statute. 
 
 An affidavit, on which a garnishing 
 order was obtained, stated that: "I have 
 reason to believe that G., as the Clerk of 
 the Executive Council of Manitoba, is 
 indebted or liable to M., one of the above- 
 named judgment debtors, in the sum of 
 $200;" but Emitted to state that the 
 garnishee "is witlfin the jurisdiction of 
 the Court." 
 
 Held, that the affidavit was defective, 
 and that the order issued on it was a 
 nuUity. 
 
 Enactments prescribing procedure in the 
 Courts are to be construed as imperative. 
 
 McKay v. N anion, 7 M.R. 250, fol- 
 lowed. French v. Martin, 8 M.R. '362. 
 
 9. Form and contents-^ ifireff's Bench 
 Act, Rule 760 — Substitution of words "to 
 the like effect" for words in form. 
 
 The substitution, though by an error 
 in type-writing, of the word "jointly" for 
 the word "justly" in an affidavit to lead 
 a garnishing order is not cured by Rule 760 
 of the King's Bench Act, permitting the 
 use of language "to the like effect" of the 
 forms prescribed, and is such a defect as 
 cannot be amended; but the use of the 
 word "deductions" instead of "discounts" 
 in such affidavit is permissible under the . 
 Rule, as the two words mean practically 
 the same thing in that connection, John- 
 son V. C/ioJwjers, 19 M.R. 255. 
 
 10. Statement of cause of action— 
 
 ■Attachment of money in hands of County 
 Court Clerk to which debtor entitled — County 
 Courts Act, R.S.M: 1902-, c. 38, s. 265— 
 Affidavit for gamishihg order, sufficiency 
 of, under Form 30 — Statement of cause of 
 action. 
 
 Per CnMBEKLANi), Co. J.,, in 1894. 
 
 1 . A statement in an affidavit under 
 section 265 of the County Courts Act, 
 R.S.M. 1902, c. 38, to found a garnishing 
 order, "That the said primary debtor is 
 justly and truly indebted to me in the 
 
 sum of for an account due T & R. 
 
 and assigned to me," does not sufficiently 
 comply with the requirement. "Here 
 state shortly the cause of action in com- 
 
 mon, plain and concise language," as 
 printed in itaUcs in Form 30 appended to 
 the Act, as it neither shows the defendant 
 clearly what he is being sued for nor that 
 the cause of action is one "for which suit 
 may be entered" in the County Court, 
 which is necessary under the wording, of 
 section 265. 
 
 2. Money paid into a County Court for 
 the benefit of one of the parties to a suit 
 in that Court is not attachable in the 
 hands of the Clerk of the Court by 
 garnishing process at the suit of. a creditor 
 of such party. Boss v. Goodier, 5 W.L.R. 
 393. 
 
 II. Cases in Which No Garnishing 
 
 Order can be Obtained Before 
 
 Judgment. 
 
 1. Action for unliquidated damages 
 
 —Attachment of debts — King's Bench Act, 
 Rule 759.^ 
 
 The right to proceed under Rule 759 of 
 the King's Bench Act for the attachment 
 of debts before judgment is confined to 
 cases in which the amount of the plaintiff's 
 claim can be definitely ascertained at the 
 time the action is brought and the Rule 
 does not apply where the claim is for 
 unliquidated damages whether arising 
 from tort or breach of contract. 
 
 Where, therefore, the plaintiff's claim 
 was obviously partly made up of unascer- 
 tained damages and neither the statement - 
 of claim nor the affidavit contained any 
 definite 'allegation of a certain amount 
 having been earned by plaintiff at the 
 time the action was brought, an order 
 attaching debts before judgment was set 
 aside with costs. 
 
 Mclntyre V.Gibson, (1908) 17 M.R. 423, 
 followed. HaH v. Dubrule, 20 M.R. 234. 
 
 2. Action of tort — King's Bench Ad, 
 B.S.M. 1902, c. 40, r. 759. , 
 
 The words "claim or demand" used in 
 Rule 759 of the King's Bench Act, R.S.M 
 1902, c. 40, are limited by thefollowing. 
 words "due and owing" and do not extend 
 to a claim in tort for unascertained dam- 
 ages before judgment recovered therefor, 
 so that a plaintiff having only such a 
 claim is not entitled under that Rule to an 
 order attaching moneys due liy a third 
 party to the defendant to answer the 
 judgment of the plaintiff to be recovered. 
 
 Grant v. West, (1896) 23 A.R 533, fol- 
 lowed. McInJyre v. Gibson, J7 M.R. 423. 
 
 See also V. post. v 
 
509 
 
 GARNISHMENT. 
 
 510 
 
 III. Jurisdiction op County Coukt 
 Judge. 
 
 1. To make and set aside orders in 
 Queen's Bench action. 
 
 A County Court Judge has power not 
 only to grant a garnishee attaching order 
 in a Queen's Bench case, but also to set 
 the order aside if improperly issued: 
 Thompson v. Wallace, a M.R. 686. 
 
 2. To set aside order in Queen's 
 Bench action — Garnishee out of juris-, 
 diction. 
 
 A County Court Judge has power to set 
 aside a garnishing order made in-a Queen's 
 Bench action. 
 
 A garnishing order was set aside upon 
 it appearing that the garnishee did not 
 reside within the jurisdiction, but was 
 there, when served, only temporarily. 
 Dick V. Hughes, 5 M.R. 259. 
 
 S. To enforce trust of money attach- 
 ed— Counti/ Cowr-is Ad, R.S.M., 1902, c. 38, 
 ss. 60 (d), 61 — Injunction — Fraudulerd 
 conveyance. 
 
 Under the County Courts Act, R H M., 
 1902, c. 38, a County Court has no juris- 
 diction to make an order in garnishee pro- 
 ceedings attaching and prohibiting the 
 payment over of moneys owing or accruing 
 due from the garnishee to a person other 
 than the primary debtor, upon the allega- 
 tion that such moneys would, when paid 
 over, be held by such other person in trust 
 for the debtor in consequence of some 
 transaction alleged to be fraudulent and 
 void as against the creditors ;of the debtor, 
 or to make an order, for the trial of an 
 issue to determine whether sufih moneys 
 were an asset of the debtor or not. 
 
 Donohoe v. Hull, (1895) 24 S.C.R., 683, 
 followf d. Adams v. Montgomery, 18 M.R. 
 22. 
 
 IV. What Mat be Garnished. 
 
 1. Claim for damages. 
 
 A claim against a railway company for - 
 damages for injuries sustained may be 
 attached by a creditor of the person 
 injured. 
 
 The tact that a defendant has assigned 
 his claim against the garnishee is no reason 
 for setting aside the attaching order. 
 
 Although an assignee of a, chose in action 
 may sue in the name of his assignor, and 
 not be affected by acts of the assignor, yet 
 a cestui que trust cannot, either in an appli- 
 
 cation at law or by proceedings in equity, 
 intervene to prevent the effect of a waiver 
 by his trustee of an irregularity in pro- 
 ceedings at law to which the trustee is a 
 party. Gerriev. Rutherford, 3 M.R. 291. 
 
 2. Liability of purchaser of shares to 
 indemnify original subscriber against 
 future calls on stock — Manitoba Joint 
 Stock Companies Act, R.S.M., 1902, c. 30, 
 s. 68— King's Bench Act, Rules 759, 761— 
 Objection not raised at trial. 
 
 1. The purchaser of the assets of a com- 
 pany incorporated under The Manitoba 
 Joint Stock Companies Act, R.S.M. 1902, 
 c. 30, who agrees to assume the liabilities 
 of the company, is bound to indemnify 
 the company against its liability for pay- 
 ment of future calls on shares of stock held 
 by It in a fire insurance company which 
 were only partly paid up at the time of the 
 sale, although no mention of such Uability 
 was made at the time but the purchaser, 
 was aware thereof; and such liability is 
 attachable at tihe suit of the fire insurance 
 company under Rules 759 and 761 of the 
 King's Bench Act for the purpose of 
 realizing on a, judgment obtained for the 
 amount of unpaid arrears of subsequent 
 calls on the shares. 
 
 2. Per DuBuc, C. J. An objection based 
 on section 68 of the Joint Stock Com- 
 panies Act, that no company incorporated 
 under that Act can use any of its funds in 
 the purchase of stock In any other cor- 
 poration unless expressly authorized by a 
 by-law confirmed at a general meeting, 
 and that there was no evidence of any 
 such by-law having been passed, cannot 
 be given effect to on the hearing of an 
 appeal when it was not raised at the trial. 
 
 Proctor v. Parker, (1898) 12 M.R. 528, 
 and Hughes v. Chambers, (1902) 14 M.R. 
 163JoUovfed. 
 
 Per Perdue, J., dissenting. Although 
 not raised at the trial, such objection 
 shoidd be given effect to on this appeal. 
 Cases cited distinguished on the ground 
 that here the evidence all went to show 
 that no such by-law had ever been passed 
 and if the objection had been raised at the 
 trial the plaintiffs could not have given any 
 evidence to overcome it. 
 
 3. P.er DuBuc, C.J. The statute does 
 not prohibit a joint stock company from 
 holding stock in another corporation, it 
 provides only that its funds shall not be 
 used for such purpose unless expressly 
 authorized^ by by-law confirmed at a 
 general meeting; and, if it were shown that 
 
511 
 
 GARNISHMENT. 
 
 512 
 
 such shares had been acquired otherwise 
 than by using any of the funds of the 
 company, the holding would be legal.' 
 
 4. Per Perdue, J. The recovery of the 
 judgment by the plaintiffs against the 
 company did not estop the garnishee from 
 setting up the defence arising out of 
 section 68 of the Joint Stock Companies 
 Act. Everest & Strode on Estoppel, p. 55. 
 Victoria Montreal Fire Ins. Co., v. Strome 
 WhyteCo., 15 M.R. 645. 
 
 3. Moneys in bailiff's trust account 
 in bank — Oamishing order — Trust funds — 
 Bailiff. 
 
 Moneys collected by a County Court 
 bailiff under executions, and paid into 
 what was called a trust account iii a bank, 
 
 Held, to be attachable by the bailiff's 
 creditors, it appearing that the same 
 account was used for his own private 
 purposes, (ft) 
 
 A bailiff is debtor to an execution 
 "creditor on whose execution he receives 
 money; not a trustee for him of the par- 
 ticular fund. 
 
 Decision of Taylor, J., 3 M.R. 145, af- 
 firmed. 
 
 For a statement of the facts, see the 
 former report, 3 M.R. 145. 
 
 Re Monkman & Gordon, Merchants 
 Bank, Garnishees, 3 M.ll. 254. 
 
 (o) See however, Stobart v. Axford, 9 
 M.R.18. 
 
 4. Moneys held in trust — Assignment 
 of future income and profits. 
 
 , The plaintiffs, by, a garnishee order, 
 attached moneys in the hands of the 
 garnishees owing to thp defendants. The 
 defendants had previously assigned to 
 trustees for bondholders all the profits and 
 income of the concern, and the trustees 
 therefore claimed the moneys as against 
 the plaintiffs. The deed of assignment 
 provided that the defendants might use 
 the income assigned in carrying on their 
 business until default in payment of the 
 bonds, and the plaintiffs claim was for 
 goads required by the defendants in the 
 ordinary course of their business. 
 
 Held, that the defendants, if the 
 moneys attached had come to their hands, 
 might properly have applied them in pay- 
 ment of the plaintiffs' claim and that the 
 claimants were not entitled to thenr as 
 against the plaintiffs. National Electric 
 Manufacturing Co. v. Manitoba Electric and 
 Gas Ught Co., 9 M.R. 212. 
 
 V. What May Not be Gabnished. 
 
 1. Agreement to account for excess 
 on re-sale of pioperts— Queen's Bench 
 Act, 1895, s. 39, s-s. 11, Ruk 742— 
 Equitable execution. 
 
 Where A has sold and conveyed land to 
 B, under an agreement that if B could at 
 any time resell the property for a larger 
 amount he would account to A for the 
 excess, there is nothing upon which to 
 base a garnishing order at the instance 
 of a creditor of A, as there is neither any 
 debt owing or accruing from the garnishee 
 to the debtor, nor anyjclaim or demand 
 arising out of trust or contrapt which 
 could be made available by equitable 
 execution, nor would it be proper in such 
 a case to appoint^ a receiver under section 
 39, sub-section 11, of The Queen's Bench 
 Act,~1895. 
 
 The claims and demands referred to in 
 Rule 742 of the Act as re-enacted by 60 
 iVid., c. 4, are those that would be available 
 by equitable execution at the suit of the 
 judgment debtor himself, and not at the 
 suit of the judgment creditor. 
 
 CentralBank v.EUis, (1893) 20 A.R. 364, 
 followed. 
 
 Explanation of the term "equitable 
 execution." McFadden v. Kerr, 12 M.R. 
 487. , ~ 
 
 2. Claim under fire insurance policy 
 before proofs of loss furnished — 
 
 Option to replace destroyed property — 
 Queen's Bench Act, 1895, Rule 741, as 
 amended by 60 Vic. {M.), c. 4, Rule 742 — 
 Equitable execution. 
 
 1. Under Rules 741 a^nd 742 of The 
 Queen's Bench Afet, 1895, as amended by 
 60 Vic, c. 4, the claim of the assured, 
 under a pohcy of insurance against loss by 
 fire which provides that the loss should 
 not be payable until thirty days after the 
 completion of thp proofs of loss usually 
 required, can not be attached by garnish- 
 ing order before such completion, although 
 the property insured has been burnt. 
 
 Howell V. Metropolitan District Co., 
 (1881) 19 Ch.D. 508, and CentralBank v. 
 EUis, (1893) 20 A.R. 364, foUowed. 
 
 Canada Cotton Co. v. Parmalee, (1889) 
 13 P.R. 308, not followed. 
 
 2. The only kind of liability which may 
 be attached under the labove Rules is a 
 purely pecuniary one and must be absolute 
 and not dependent upon a condition 
 which may or may not be fulfilled; and,__ 
 therefore, where a policy of fire insurance" 
 contained a condition giving an option to 
 
513 
 
 GARNISHMENT. 
 
 S14 
 
 the company to replace ' the destroyed 
 ■ property instead of paying the insurance 
 money, if they should so decide within a 
 certain time, a garnishing order would be 
 of no avail, if served before the expiration 
 of that time,, as an attachment of the 
 insurance money, since it would not then 
 be certain that any pecuniary Uability 
 would ever arise under the policy : Simpson 
 -V. Chase, (1891) 14 P.R., per Osier, J.A., 
 at p. 286. 
 
 3. The provision in the Rules as to 
 claims and demands which could be 'made 
 available under equitable execution have 
 not the effect of making such a liability 
 subject to attachment thereunder. Lake 
 of the Woods Milling Co. v. Collin, 13 M.R. 
 154. 
 
 3. Debts due to defendant and 
 another jointly — Jurisdiction, what cor- 
 
 - porations are within it. 
 
 Moneys due to the defendant and 
 another person jointly cannot be attached 
 under The Garnishment Act, R.S.M. 
 c. 64, to meet the plaintiff's claim. ' 
 
 Where it is sought to attach moneys in 
 the hands of a corporation, it must be 
 shown that the Company has an office in 
 this Province, and is carrying on business 
 through some branch or agency here. 
 
 In the case of The Northern Assurance 
 Company, garnishees, it appeared that the 
 head office was in Montreal, and that it 
 had no office in this Province, although 
 there were persons here who received 
 applications for insurance and, pending 
 the reference of these to Montreal, were 
 empowered to grant temporary insurance 
 for 30 days, but all applications had to be 
 sent to the head office, where they were 
 accepted or rejected; the policies were 
 issued at Montreal, the premiums were 
 payable there, and the amount assured 
 was; in case of loss, payable there alSo. 
 
 Held, that this Company could not be 
 said to carry on business in this Province, 
 or to be within the jurisdiction, so as to 
 admit of moneys due by them being 
 garnished. 
 
 McArthwr v. Macdonell, 1 M.R. 334, 
 aiid Parker v. Odette, 15 P.R. 69, followed. 
 Braun v. Davis, Northern Ass. Co., Oar- 
 niihees, 9 M.R. 534. 
 
 4. Debtor a trustee — Chattel Mortgage 
 Act. 
 
 Plaintiff sold a stock of goods to defend- 
 ant and took a mortgage upon it, and aU 
 goods which might be afterwards added 
 to it, as security for payment. At the 
 
 ■ same time an agreement was entered into 
 whereby the defendant was to carry on 
 business with the stock, and, after making 
 deductions for expenses, &c., was to 
 remit the receipts to- the plaintiff daily. 
 
 Creditors of the defendant having 
 attached, by garnishee orders, certain 
 debts due to the defendant for goods sold 
 in the business, 
 
 Held, that such creditors were not 
 entitled to such debts as against the 
 plaintiff, y "• 
 
 Garnishee orders take effect only as 
 against that which the debtor can properly, 
 and without violation of any other rights 
 of any one else, grant. 
 
 The Chattel Mortgage Act does not 
 apply to such a case. Campbell v. Gem- 
 mell, 6 M.R. 355. 
 
 6. Money in hands of County Court 
 
 Ciov^— County Courts Act, R.S.M. 1902, 
 I.. 38 — Charging order or appointment of 
 receiver in County Court. 
 
 Money paid into a County Court for 
 the benefit of one of the parties to a suit 
 in that Court is not attachable in the 
 hands of the Clerk of the Court by 
 garnishee process at the suit of a creditor 
 of such party. 
 
 Dolphin v.Langton, (1879) 4 C.P.D. 130, 
 followed, in preference toBland v. Andrews, 
 (1880) 45 U.C.R. 431. 
 
 Ross V. Goodier, decided by Cumber- 
 land Co., J., in 1894, approved. 
 
 See I., 10, ante. 
 
 QvxEre, whether the money could not be 
 reached by way of charging order or 
 equitable execution as by the appointment 
 of a receiver. Otto v. Cannery, Betour- 
 ney, Garnishee. 16 M.R. 532. 
 
 6. Moneys of a municipality in the 
 hands of its treasurer — Municipal taxes. 
 
 The treasurer of a municipality is not, 
 as such, a "third person indebted or Uable" 
 to it within the meaning of section 8 of the 
 Garnishment Act, R.S.M., c. 64, and its 
 funds in his hands cannot be attached to 
 answer a debt of the municipaUty. 
 
 Seymour v. Brecon, 29 L.J. Ex. 243, not 
 followed. London and Canadian Loan and 
 Agency Co. v. Rural Municipality of Morris 
 and Whitworth, Garnishee, 9 M.R. 431. 
 
 7. Moneys in trust account in bank 
 
 —Onus of proof where account a mixed one. 
 Defendant F. A. was, at one time, carry- 
 ing on business in partnership with hia 
 brother, and plaintiffs recovered a -judg- 
 ment against the firm. He was also a 
 
615 
 
 GARNISHMENT. 
 
 516 
 
 County Covirt Clerk, and acted as an 
 agent for two insurance companies and 
 two loan companies. In connection with 
 these employments he opened an account 
 in a bank which was styled, "Frederick 
 Axford, trust," in which were deposited 
 trust moneys or moneys representing 
 trust moneys. Plaintiffs, judgment credi- 
 tors, obtained ah order garnishing the 
 amount at the credit of the account, and 
 then applied to have the money paid over 
 to them. The evidence showed that F. A. 
 drew out from this account moneys for his 
 own purposes, or moneys to repay other 
 trust moneys received by him before the 
 opening of this account, which he had 
 used. 
 
 Held, that the improper withdrawal by 
 a trustee of moneys from a trust account 
 and the improper use by him of moneys 
 so withdrawn can never deprive other 
 trust moneys lying at the credit of the 
 account of their trust character. 
 
 Unless the money is money with which 
 the debtor can deal as his own, it cannot 
 be garnished. 
 
 \Vhere the account is a mixed one, the 
 onus is on the- party seeking to attabh it, 
 to show that the money is the debtor's 
 with which he can deal and, in the absence 
 of proof that the account or so much of it 
 is his, the money will be treated as all 
 trust money. 
 
 In the absence of clear evidence that 
 the balance in the account did not consist 
 -of trust moneys, -it should be held to be so. 
 Stobart v. Axford, 9 M.R. 18. 
 
 8. School taxes unpaid — School taxes 
 not attach/Me by creditor of School Distriets=- 
 Public Schools Act — Effect of repeals- 
 Interpretation Act, R.S.M. 1892, c. 78, ss. 
 11 & 12, construction of — Public policy. 
 
 The plaintiffs having recovered a judg- 
 ment against a School District sought to 
 , attach the amount levied on the garnishee 
 for rates or taxes imposed for school pur- 
 poses for the years 1884 to 1892, inclusive, 
 in respect of lands of the garnishee within 
 the school district. 
 
 Held, that these rates or taxes did not 
 constitute a debt, obligation or liability 
 which could be attached under the Gar- 
 ishment Act, R.S.M., c. 64, to answer a 
 claim against the School District. 
 
 Per Tayloe, C.J. — The repeal of all 
 former School Acts by the PubUc Schools 
 Act of 1890 put an end to the right of a 
 School District to collect any arrears jof 
 ^such taxes and, since the passing of the 
 latter Act, School Districts in Manitoba 
 
 have no power to levy or collect taxes, 
 but it must be done for them by the 
 municipal councils. The Interpretation 
 Act, R.S.M., c. 78, ss. 11 & 12, cannot be 
 relied on to save the right of collecting 
 arrears of taxes, because trustees have not 
 under the repeaUng Act any such right. 
 
 Per DuBiJC, J. — It would be against 
 public policy to aUow the taxes levied by 
 a School District to be intercepted by an 
 attaching order in favor of a creditor, 
 because the trustees might thereby be 
 prevented from carrying on the work for 
 which the corporation was created, especi- 
 ally since the Act provides by section 234 
 an adequate remedy enabling a creditor 
 to issue an execution with an indorsement 
 directing the sheriff to levy an additional 
 rate on property owners to pay off the 
 judgment. 
 
 Per KiLtAM, J. — Without an express 
 provision in the statute to that effect, a 
 pubUc corporation cannot sue in a Court 
 of law to recover taxes levied on a rate- 
 payer- under the powers conferred by the 
 statute, and, although the former School 
 Acts enabled the trustees to takerpro- 
 ceedings before certain tribunals to 
 enforce payment of the taxes, the ordinary 
 relation of debtor and creditor was not 
 thereby created, nor were the taxes 
 thereby constituted a debt, obligation or 
 Uabihty within the meaning of section 8 
 of the Garnishment Act, such as can be 
 attached in the hands of a ratepayer to 
 meet a debt of the corporation^ Canada 
 Permanent Loan & Savings Co. v. School 
 District of East Selkirk, 9 M.R. 331. 
 
 VI. Other Cases. 
 
 1. Costs — Affidavit disputing liability — 
 Form of. 
 
 A garnishee, upon the &st return of a 
 summons to pay over, filed an affidavit 
 alleging an assignment of the debt by the 
 judgment debtor previous to attachment, 
 and also denying the existence of the debt, 
 but this denial was not in sufficient form. 
 
 Held, that the plaintiff might elect to 
 abandon the proceedings without costs. 
 North WestFarmerv. Carman, 6 M.R. 118. 
 
 2. Ibcecution creditor enforcing 
 judgment recovered by debtor against 
 garnishee. 
 
 Held, (affirming Killam, J.), that the 
 service of^ a garnishee attaching order 
 binds the debt due by the garnishee, but 
 does not transfer to the plaintiff the securi- 
 ties held for the debt or give any right to 
 
517 
 
 GARNISHMENT. 
 
 518 
 
 take advantage of the position of the 
 debtor in respect of such securities. 
 
 An execution creditor cannot, under a 
 fi. fa. lands, sell the charge which the 
 judgment debtor may have upon the 
 lands of a third party by virtue of a 
 registered judgment. 
 
 If the interest which a judgment debtor 
 might acquire in such lands, by docketing 
 his judgment under the English statutes, 
 could be sold under execution, it would 
 only be after such lands had been "deliv- 
 ered in execution by virtue of a writ." 
 Abell V. Allan, 5 M.R. 25. 
 
 3. Fraudulent discharire given to 
 defeat creditors — Chattel mortgage — Dis- 
 charge not under seal — Debt not paid. 
 
 I. B. was indebted to J. B. in the sum 
 of $500. More than six years after the 
 cause of action arose, and when the debt- 
 was barred by the Statute of Limitations, 
 I. B- executed a chattel mortgage under 
 seal in which he covenanted to pay J.B. 
 the $500 with interest. Afterwards I. B. 
 learned that this debt could be garnished 
 by J. B.'s creditors and, with a view of 
 preventing this, he induced J. B. to execute 
 a discharge of the mortgage^ but no money 
 was paid. The discharge was in the 
 statutory form but not under seal. 
 
 The plaintiffs obtained a judgment 
 against J. B. and garnished I. B. 
 
 On the return of a summons to pay over, 
 an interpleader issue was directed to 
 determine the validity of the discharge. 
 On the trial of the issue, 
 
 Held, that the discharge was fraudulent 
 and void as against creditors. Manitoba 
 & m W. Loan Co. v'. BoUm, 9 M.R. 153. 
 
 4. Interpleader upon suggestion of 
 another claimant— Po^/meret into court — 
 Suggestion of third party. 
 
 Garnishees paid the money attached 
 into court, rnaking no suggestion of the 
 existence of any other claimant. Upon 
 plaintiff's motion for payment out, two 
 of the defendants contended that the 
 garnishees were not indebted to the 
 defendants at^aU, but to another firm of 
 which the defendants and another were 
 members, and of which one M. was 
 assignee. An order was therefore made 
 for the trial of an issue between the 
 plaintiffs and the assignee as tb whether 
 the garnishee was indebted to the defend- 
 ants. The plaintiff appealed. 
 
 Held, that, inasmuch as the garnishees 
 had not made any suggestion of another 
 
 claimant,, the order should have directed 
 payment to the plaintiffs, and the assignee 
 be left to his action against the garnishees. 
 
 Roberts v. Death, 8 Q.B.D. 319, dis- / 
 tinguished. Ontario Bank v. Haggart, 5 
 M.R, 204. 
 
 6. Judgment creditor enforcing 
 judgment recovered by debtor against 
 garnishee. 
 
 B. & P. had a judgment against A.; 
 McA. obtained a judgment against B. & 
 P. and garnished A. 
 
 Held, that McA. had no right to enforce 
 the judgment of B. & P. against A., nor 
 to rank under that judgment as against 
 the lands of A. in a contest for priority 
 among his judgment creditors. Abell v. 
 Allan, 3 M.R: 467. 
 
 Affirmed, 5 M.R. 25. 
 
 6. Liability' of purchaser of land 
 after assignment of agreement to 
 third party — Order as to payments still 
 to fall due — King's Beneh Act, Rule 764. 
 
 1. A purchaser of land from a defendant, 
 under an agreement providing for pay- 
 ment by successive aimijal instalments, 
 cannot escape liability under a garnishing 
 order, served upon him in a suit by a 
 creditor of the defendant, by subsequently 
 assigning his interest in the land to 
 another person and procuring the latter 
 to assume" liabihty for the remaining 
 instalments; and,' although none of the 
 installments are due when the order is 
 served, yet they are all covered by it to 
 the extent necessary to satisfy the plain- 
 tiff's claim. 
 
 2. After the maturity of one of the 
 instalments, the plaintiff is elititled, under 
 Rule 764 of the King's Bench Act, to an 
 order for payment not only of the overdue 
 instalment, but also, when due, of those 
 still to fall due, until the judgment is 
 satisfied. Smith v. Van Buren, 17 M.R. 
 49. 
 
 7. Non-resident garnishee — Oamishee 
 (o corporation) not within the Province. 
 
 I AppUcation'by defendant to set aside a 
 garnishing order. The debt alleged to be 
 due by the garnishees was in respect of a 
 life insurance policy. The Insurance 
 Company (the garnishees) had no office 
 in the Province. L. & K. acted as its 
 agentjs in Winnipeg, having power merely 
 to receive applications for insurance. 
 The premiums were payable at Montreal, 
 
619 
 
 GAS INSPECTION ACT. 
 
 520 
 
 and the amount insured in case of death 
 was also payable at Montreal. 
 
 Held, that, as the Insurance Company 
 could not be sued in this Province, the 
 garnishing order should be discharged. 
 McArthur v. MacdoneU, 1 M.R. 334. 
 
 8. Payment by garnishee after no- 
 tice of assignment— Landlord and tenant 
 — Setting- aside order — Parties — Amend- 
 ment — Notice of assignment under 4 & 5 
 Anne, c. 16, s. 10. • • 
 
 One Henry Foulds, having leased a 
 parcel of land to the defendant, assigiied 
 the reversion to trustees for the plaintifif. 
 On the first of April, 1895, the defendant 
 owed $90 for rent of the premises, and 
 soon afterwards a judgment creditor of 
 Henry Foulds obtained an order attaching 
 this rent. In May following an order was 
 made for the payment of the $90 to the" 
 judgment creditor, no one appearing to 
 show cause so far as the order showed. 
 Thereupon the defendant paid the rent as 
 required by, the order, although he had 
 notice of the assignment, as the Judge at 
 the trial found, before the service of the 
 attaching order. The plaintiff then 
 brought this action to recover the $90. 
 
 Held, 1. That the payment to the 
 garnishing creditor was no defence, not- 
 withstaiiding that the order had not been 
 set aside: In re Smith, 20 Q.B.D. 321, 
 distinguished! 
 
 2. That it was not necessary for plain- 
 Hiff before suing to take proceedings under 
 
 Rule 425 of the Queen's Bench Act_, 1895, 
 to set aside the attaching order. 
 
 3. That plaintiff was not entitled to 
 bring this action in his own nan^e, but 
 that leave to amend by adding the trustees 
 as plaintiffs should be allowed under 
 Rule 338, Queen's Bench Act, 1895. 
 Gandy v. Gandy, 30 Ch.D. 57; Woodward 
 V. Shields, 32 U.C.C.P. 282, and McGuin 
 V. Fretts, 13 O.R. 699, followed. 
 
 4. That notice of the assignment should 
 have been given by the trustees, as 
 required by the statute 4 & 5 Anne, c. 16, 
 s. 10, but as defendant had received notice 
 no effect should be given to this objection, 
 following Lumley v. Hodgson, 16 East, 99. 
 
 Ordered, that, ufjon plaintiff ilhng 
 within a week the written consent of the 
 trustees to- be added as co-plaintiffs, the 
 statement of claim be amended accord- 
 ingly, and judgment entered for the 
 amount sued -for and costs, except any 
 costs of making the amendment. Foulds 
 V. Chambers, 11 M.R. 300. 
 
 9. Priority — Sheriff and deputy sheriff- 
 A garnishee order was taken out in tne 
 
 first suit in the County Court at fimerson, 
 and served on sheriff's bailiff at Emerson 
 and the deputy sheriff at Winnipeg. 
 
 In the second suit a garnishee order - 
 issued out of the Court of Queen's Bench 
 was served on the shteriff personally, sub- 
 sequently to the service effected in the 
 first suit. 
 
 Plaintiff in the first suit took out a 
 summons to settle the priorities. 
 
 Held, that service on the deputy, sheriff 
 in his office during office hours was good 
 service on the sheriff, and therefore an 
 order so. served had precedence over an 
 order subsequently served on the sheriff. 
 Beach V. Graves, Dominion Type Co. v. 
 Graves, 1 M.R. 26. 
 
 10. Privity between debtor and gar- 
 nishee. 
 
 The defendant was an Indian agent in 
 Manitoba of the Government of Canada, 
 and was paid his salary through the 
 branch of the Ontario Bank at Winnipeg. 
 The Bank, without any cRmmunication 
 with the defendant, placed two successive 
 months' salary at his credit when due, 
 against which attaching orders were 
 issued by M., the assignee of a judgment 
 obtained by the Bank against the defend- 
 ant. 
 
 Held, that, notwithstanding what was 
 done by the Hank, no privity ha,ving been 
 estabhshed between it and the defendant, 
 the money stiU remained under control 
 of the Crown and could not be attached. 
 McMicken v. Clarke, T.W. 157. 
 
 See Abbiteation and Award, 8. 
 
 — Banks and Banking, 2. 
 
 — Bills and Notes, VII, 2. 
 
 — compaut, iv, 4. 
 
 — Conflict of Laws, 1. 
 
 — Evidence, 1, 2. 
 
 — Fi. Fa. Goods, 4. 
 
 "-- Feaudulbnt Conveyance, 20. 
 
 — Intekplbadeb, V. 
 
 — Mortgagor and Mortgagee, VI, 7. 
 
 — Practice. , 
 
 — Stating Proceedings, III, 2. 
 
 GAS INSPECTION ACT. 
 
 R.S.C. 1906, c. 87, S3. 31, 34, 44, 69, 60 
 
 — Liability of consurher to pay for gas when 
 no certificate posted up as required by section 
 
521 
 
 GAS METER. 
 
 522 
 
 44 and no test made as provided by section 34 
 — Obligations of company supplying gas in 
 a place for which there is no local inspector. 
 
 1 . Section 34 of the Gas Inspection Act, 
 R.S.C. 1906, c. 87, only makes the sale of 
 g^s illegal after notice to the undertaker 
 of the location of the testing place pre- 
 scribed by the Department of Inland 
 Revenue and until the cpimections speci- 
 fied in that section are made. 
 
 2. Section 44, requiring the posting up 
 of the certificates of tests made by the 
 inspector, does not become o'perative till 
 section 34 has been acted on and a testing 
 place prescribed and notified by the 
 undertaker. 
 
 3. The penalties provided for by sec- 
 tions 59 and 60 for failure to procure and 
 post up the certificates of tests required 
 by section 44 and for selling gas before 
 connections have been made with the 
 testing place, &c., are not incurred when 
 section 44 has not become operative by 
 notification to the undertaker of the pre- 
 
 < scribing of a testing place. 
 
 Per Phippbn, J.A., Sections 34 and 44 
 are both subsidiary to section 31, which 
 limits the obhgations therein imposed to 
 undertakers "in any city, town or place 
 for which there is an inspector of gas," and 
 the provisions of sections 31 to 47, inclu- 
 sive, are not applicable to plaices for 
 which there is no local inspector. Carberry 
 Gas Co. V. HaUett, 17 M.R. 525. 
 
 See also Man. Elec. & Oas Light Co. v. 
 Gerrie, 4 M.R. 210. 
 
 Irons V. SmaUpiece, (1819) 2 'B. & Aid. 
 551; Cochrane v. Moore, (1890) 25 Q.B.D. 
 57, and BeBolin, (1892) 136 N. Y. at p. 180, 
 followed. Hardy v. Atkinson, 18 M.R. 
 351. 
 
 2. Possession — Acceptance. 
 
 Plaintiff's father in his lifetime pur- 
 chased a piano which, after deUvery at his 
 home, he gave to the plaintiff then living 
 with him. She accepted the gift and it 
 Was afterwards treated as her property. 
 
 Held, following Winter v. WiKJer,.(1861) 
 4 L.T. 639, and KUpin v. Ratley, [1892] 1 
 Q.B. 583, that the title to the piano was 
 complete in the ■ plaintiff, and she was 
 entitled to recover it from the defendant 
 in spite of an alleged subsequent sale by 
 the father to the latter. Tellier v. 
 Dujardin, 16 M.R. 423. 
 
 See Infant, 7. . 
 
 GOOD IN PART AND BAD IN PART. 
 
 See Chattel Moetgaqe, V, 3. 
 
 — Ckown Patent, 5. 
 
 — Demurrbk, 3. 
 
 — Illegalitt, 4. 
 
 — • Eocal Option Bt-law, 1/ 2. 
 
 — Pleading, XI, 10. 
 
 — Railways, II, 2. 
 
 — Sale of Land fob Taxes, III, 2. 
 
 — Taxes. 
 
 GAS METER. 
 
 See Illegality, 2. 
 
 GOODS IN CUSTODIA LEGIS. 
 
 See Stoppage in Transitu. 
 — Trespass and Trover, 2. 
 
 GIFT. 
 
 1. Delivery. 
 
 Actual deUvery of the thing is a neces- 
 sary ingredient of a valid parol gift or, in 
 other words, a gift is a transaction con- 
 sisting of two contemporaneous acts, the 
 giving and the acceptance, and these acts 
 cannot be completed without an actual 
 deUvery of the subject of the gift. 
 
 Under the circumstances set out in the 
 judgment, there was not a sufiBcieiit de- 
 livery of the chattel claimed to have been 
 given away by the plaintiff. 
 
 GOODS IN STORAGE. 
 
 See Sale of Goods, II, 3. 
 
 GRAND LARCENY. 
 
 See Extradition, 1. 
 
 GRANT OP CROWN LANDS BY 
 STATUTE. 
 
 See Crown Lands, 2. 
 
523 
 
 GROWING CROPS. 
 
 524 
 
 GROWING CROPS. 
 
 Mortgage of — Mortgage ofyrops to be 
 grown — Equitable security — Bills of Sale 
 Act, R.S.M. 1892, c. 10, ss. 3 and i— 57 
 Vic, c. 1, s. 2, {M). 
 
 1 Interpleader issue between, plaintiffs 
 and Massey-Harris Co. claiming under a 
 chattel mortgage made in 1893, by which 
 defendant agreed that all the crops ,of 
 grain which the mortgagor might from 
 time to time grow on the land, until the 
 whole principal and interest secured by 
 the mortgage should be paid, should be 
 included in the mortgage, and that the 
 mortgagor would from time to time upon 
 request execute such further mortgage or 
 mortgages of such crops to the intent that 
 such crops should be effectually held as a 
 security for the payment of the debt 
 thereby secured.- 
 
 Thp plaintiff's execution was not placed 
 in tlfe bailiff's hands until February, 1896, 
 and under it the defendant's crops grown 
 in 1896 had been seized. 
 
 Held, that, while the instrument relied 
 on could give no title at law by itself, yet 
 a Court of- Equity would enforce the 
 agreement to give the further security 
 and, considering that done which ought 
 to be done, would attribute the title to 
 the mortgagee, and restrain others from 
 interfering with the property to his injury, 
 and' that such a title can be asserted in an 
 interpleader issue against an execution 
 creditor, and that section 4 of The Bills of 
 Sale Act, R.S.M., c. 10, had not the effect 
 of doing away with the equitable principle 
 referred to, which existed independently of 
 the statute. 
 
 Held, also, following Clifford y. Logan, 
 9 M.R. 423, that an instrument creating 
 only an equitable charge of this nature 
 upon property not at the time m existence 
 did not, before the Act, 57 Vic, c. 1, s. 2, 
 (M), come within section 3 of The Bills of 
 Sale Act so as to require registration to 
 make it operative as against an execution 
 creditor, and the Act of 1894, repealing 
 section 4 of The Bills of Sale Act and sub- 
 stituting a new sub-section, did not affect 
 a prior existing instrument. Bank of 
 British North America v. Mcintosh, Massey-- 
 Harris Co., Claimants, 11 M.R. 503. 
 
 See Chattel Mobtqagb, II, 1, 2, 3. 
 
 — Mortgagor and Mortgagee, VI, 5. 
 
 — Partnership, 6. 
 
 GROWING HAY. 
 
 See Contract, XV, 15. 
 — Hay. 
 
 GUARANTY. 
 
 1. Indemnity — Oral promise to answer 
 for the debt of another — Statute of Frauds, 
 29 Car. 2, ch. 3, s. 4. 
 
 The plaintiff had suppUed goods to the 
 defendants, J;he Lindsay Co.', in which the 
 defendant Fmn held most of the stock, and 
 was pressing for payment, when Finn 
 verbally promised to pay the debt or see 
 it paid if plaintiff would extend the time 
 for payment and continue to supply 
 goods to the Company, and that he would 
 "go good" for such past and future 
 indebtedness. 
 
 Held, that this promise was a "promise 
 to answer for the debt of another" within 
 section 4 of the Statute of Frauds, and 
 , that, as it was not in writing, an action 
 for the breach of it could not be main- 
 tained. 
 
 Beattie v. Dinnich, (1896) 27 O.R. 285, 
 and Harbury & Co. v Martin, [1902] 1 
 K.!B. 778, followed. Shea v. George Lind- 
 say Co., 20 M.R. 208. 
 
 2. OfEer and acceptance — Liability of 
 debtor to guarantor who has paid creditor. 
 
 A creditor offered to fill defendant's 
 order for goods sent by the plaintiff, the 
 creditor's agent, and to allow him an extra 
 commission if he would guarantee the 
 account. The plaintiff replied that he 
 would guarantee the account for that 
 season only. 
 
 Held, that the plaintiff was bound by 
 the guaranty, whether he had notice of 
 the shipment of the goods or not, and, 
 being so bound, was entitled to recover 
 from the defendant the amount paid under 
 the guaranty which, as found upon the 
 evidence by the trial Judge, had been given 
 at defendant's request. 
 
 Brandt on Suretyship, par. 213, referred 
 to. 
 
 Sleigh v. Sleigh, (1850) 5 Ex. 514, dis- 
 tinguished. 
 
 The terms of sale of the goods were 
 "four months, or 5 per cent off 30 days," 
 and the creditor had taken defendant's 
 note at four months for the amount of the 
 account, but the plaintiff knew the terms 
 and had agreed to them. 
 
 Held, that, although the time of pay- 
 ment was thus postponed beyond the time 
 
525 
 
 GUARANTY BOND. 
 
 526 
 
 mentioned by plaintiff in his guaranty, yet 
 he was bound by it as it should be pre- 
 sumed that he had guaranteed the account 
 payable on the terms to which he, as the 
 creditor's agent, had agreed. Fraser v. 
 Douglas, 16 M.R. 484. 
 
 vSee CoNTBACT IX, 3; XV, 8. 
 — Principal and Surety, 3. 
 
 GUARANTY BOND. 
 
 ! Principal and Surety, 2. 
 
 GUARANTY INSURANCE. 
 
 See Principal and Surety, 3. 
 
 GUARDIAN. 
 
 See Infant, 10, 12. 
 
 HABEAS CORPUS. 
 
 See Conviction, 2, 
 
 — Criminal Law, XIII, 4; XV, 1, 2, 3, 4 ; 
 
 XVI, 5, 6; XVII, 8, 16. 
 
 — Infant, 5. 
 
 — Military Law. 
 
 HAIL INSURANCE. 
 
 See Mutual Insurance. 
 
 HALF-BREED LANDS. 
 
 See Equitable Assignment, 2. 
 
 — Sale of Land for Taxes, X, 7. 
 
 HALF-BREED LANDS ACT. 
 
 1. Conveyances by half-breed child- 
 ren — Construction of Con. Stat., c. 42, s. 3. 
 
 In answer to a question submitted by 
 the Registrar-General, for the opinion of 
 the Court as to the construction of Con. 
 
 Stat., c. 42, s. 3, the following report was 
 returned. 
 
 KiLLAM, J. — (After discussing the 
 matter at some length), I shall therefore 
 certify to the Registrar-General that, in 
 my opinion, the third section does not 
 apply to a haK-breed minor between 18 
 and 21 years of age, or empower him to 
 convey or otherwise dispose of any portion 
 of the 1,400,000 acres of land that he may 
 be entitled to by inheritance or purchase, 
 but that it empowers such half-breed 
 child merely to convey or dispose of such 
 specific portion of the 1,400,000 acres as 
 may have been allotted to him by the 
 Crown as his own share of those lands. Re 
 •Campbell, 5 M.R., 262 
 
 2. Conveyance by infant — Consent of 
 husband of illegitimate infant — Construction 
 of Man. Stat. 46 & 47 Vic., c. 29, s. 1— 
 Infant, conveyance by, voidable — Cham.'perty. 
 
 The Statute of Manitoba, 46 & 47Vie., c. 
 29, s. 1, which was passed to remove doubt 
 as to the proper interpretation of section 3 
 of the Half-Breed Lands Act in the C.S.M., 
 did not apply to married illegitimate 
 children, so as to obviate the necessity of 
 procuring the consent of the husband or 
 wife of such child to a conveyance made 
 during minority. 
 
 Held, also, that a conveyance to the 
 defendant made by an infant was not 
 binding on her when she came of age, and 
 was voidable at her option, and that she 
 effectually avoided such cmiveyance by a 
 conveyance of the lands to the plaintiff, 
 executed a few months after she came of 
 age. 
 
 HeM, also, that, although the plaintiff 
 knew of the former sale to defendant and 
 the transaction on his part was disreput- 
 able, it was not champerty for him to 
 purchase the land as he did. Robinson v 
 Sutherland, 9 M.R., 199. 
 
 3. Infant's Land, sale of — Order for 
 sale — Complying with conditions of — Con- 
 veyance before order made — Purchase 
 money — Payment into court of — Condition 
 
 In an issue under the Real Property Act, 
 the plaintiffs claimed title under a sale of 
 a haJf-breed infant's lands alleged to have 
 been made pursuant to an order of the 
 Covat. The order, purporting to be made 
 in the matter of N.D., an infant, and dated 
 9th November, 1880, directed that the 
 lands be sold to St. P. for $200, and that, 
 upon payment into court of the purchase 
 
527 
 
 HANDWRITING. 
 
 528 
 
 money to the credit of the matter, A. D., 
 the father and next friend of the infant, be 
 empowered to make and ejjecute a proper 
 deed of conveyance to the purchaser. 
 A deed to St. P. was produced at the trial, 
 which recited that it was made pursuant 
 to an order of the Court. "It was executed 
 by the infant by his next friend for the 
 expressed consideration of $200, and there 
 was a receipt for the money endorsed 
 thereon and signed in the same way. The 
 deed was dated the 11th October, 1880, 
 and there was no other evidence of the 
 time of its execution. The money was 
 not paid into court until the 23rd Septem- 
 ber, 1881, and on the 30th August, 1881, 
 St. P. liad re-sold the land for $546 to H., 
 who appeared to have paid the money 
 intp court. 
 
 Held, 1. In the absence of evidence to 
 the contrary, the deed must be assumed 
 to have been executed on the day it bore 
 date. 
 
 2. The deed of conveyance to St. P. 
 was invalid, because it was executed with- 
 out authority from the Court, and the 
 Order afterwards made did not provide 
 for a conveyance already executed, and by 
 its terms the paymient of the money into 
 
 . court was a condition precedent to the ex- 
 ercising of the power to convey, and 
 sections 10, 11 & 12 of the Half-Breed 
 Lands Act, R.S.M., c. 67, did not cure 
 these defects. 
 
 3. Section 11 pre-supposes the exist- 
 ence of some order, fiat or decree authoriz- 
 ing the sale. Its object is to cure defects, 
 irregularities and omissions in connection 
 with the doing of something authorized 
 by the Court to be done, not to validate 
 proceedings wholly unauthorized. 
 
 Barber v. Prondfoot, decided 30th No- 
 vember, 1889, unreported, followed. 
 
 4. The most restricted construction 
 possible must be placed upon these enact- 
 ments. 
 
 O'Brien v. Cogswell, 17 S.C.R. 420, and 
 Whelan v. Ryan, 20 S.C.R. 65, followed. 
 
 The question of the ilecessary proof of 
 an order of the Court for the sale of a 
 half-breed infant's lands, where the order 
 had been lost, considered. Hardy v. 
 Desjarhis. Kerr v. Desjarlais, 8 M.R., 
 550. 
 
 HAUNTED HOUSE. 
 
 See Slander op Real Estate. 
 
 HAY. 
 
 Growing wild hay, whether goods or 
 land, when purchaser is to cut and 
 remove it— Sate of Goods Act, R.S.M., 
 1902, c. 152, ss. 2 (/i), 14. 
 
 Growing wild hay, when sold to a person 
 who is to cut and remove it the same 
 season, is "goods" within the meaning of 
 paragraph Qi) of section 2 of The Sale of 
 Goods Act, R.S.M., 1902, c. 152, and there 
 is, under section 14 of the Act, an implied 
 warranty of title by the vendor of hay 
 sold under such circumstances. ' 
 
 Marshall v. Green, (1875) 1 C.P.D. 35, 
 followed. Fredkin v. Glines, 18 M.R., 249. 
 
 See CoNTKACT, XV, 15. 
 
 — Husband and Wipe, I, 2. 
 
 — PossEssioiji OP Goods. 
 
 HANDWRITING. 
 
 See Will, III, 3. 
 
 HIGHWAY. 
 
 1. Registry Act, R.S.M. 1902, c. IRQ. 
 
 S. 68 — Murnapal Act, R.S.M. 1902, c. 
 116, ss. 662, 699 — Purchase and dedication 
 of land for a public highway by the munici- 
 pality — Priority as against suhsequent 
 purchaser who registered his deed first. 
 
 A^^len land is purchased by and convey- 
 ed to a municipality under The Municipal 
 Act for a road and thereafter dedicated 
 and used as a public highway, it becomes 
 vested in the Crown by virtue of section 
 622 of the Act, and a subsequent pur- 
 chaser, although he bought without notice 
 of the prior conveyance or of the existence - 
 of the road and registered his deed before 
 the registration of the deed to the munici- 
 pahty, acquires no title to the road as 
 against the Crown notwithstanding section- 
 68 of The Registry Act, R.S.M., 1902, c, 
 150, which does not apply to the Crown 
 and notwithstanding the failure of the 
 municipality to register the by-law estab- 
 lishing the road as required by section 699 
 of The Municipal Act. 
 
 Such purchaser, therefore, has no title 
 to complain of the registration of the deed 
 to the municipality as a cloud on his title. 
 Pvlkrabek v. Russell, 18 M.R., 26. 
 
529 
 
 HIGHWAY CROSSING. 
 
 530 
 
 2. Width of highways in Manitoba — 
 
 Crown patent — Reservation of travelled road 
 — Subsequent survey increasing widthofroad. 
 
 The Crown patent under which the 
 plaintiff held the land in question reserved 
 all travelled roads crossing the same 
 "existing as such on the 15th day of July, 
 1870, which by and under the laws of 
 Assiniboia were or may be held to be 
 legally public highwajys," and the evidence 
 showed that the road in question had never 
 extended south of a fence which the plain- 
 tiff had built along the south side of the 
 road and he had been in undisturbed 
 occupancy and enjojOaient of the land 
 south of the fence up to the time the 
 defendants had removed it. 
 
 The defendants, however, relied, on a 
 survey of the road in question raade in 
 1886 by a surveyor named Dufresne 
 alleged to have acted under instructions 
 from the Dominion Government, of which 
 instiructions no proof was given. It ap- 
 peared that Dufresne had, by his field 
 notes, made the road 99 feet wide on the 
 plan prepared by him, but it was not 
 shown by whom he was sent to make the 
 survey or what authority he had to make 
 it. It also appeared that the Provincial 
 Government had, by order in council 
 dated in 1899, approved of a report refer- 
 ring to the surveying and transferring to 
 the Province of certain thoroughfares or 
 trails and amongst them the road in 
 question as surveyed by Dufresne in 1886, 
 and that the Dominion Government had, 
 by order in council dated in 1900, approved 
 the above report and directed the said 
 trail to be transferred to and vested in the 
 Province of Manitoba. 
 
 Held, following Pockett v. Pooh, 11 
 M.R. 508, that the survey in question 
 was not originally legal and binding and 
 was not made so by the Dominion order 
 in Council passed 14 years thereafter, and 
 that the Dominion Government, after 
 granting the patents for the lands, could 
 not afterwards interfere with the private 
 rights of parties holding under them. 
 Heath v. Portage la Prairie, 18 M.R., 693. 
 
 3. Width of highways in Manitoba 
 
 —R.S.C. 1906, c. 99, s. 9. 
 
 The plaintiJEE municipality contended 
 that the public (travelled road through the 
 defendant's property, instead of 66 feet 
 wide, should be 99 feet in accordance with 
 a survey made in 1886 by a Dominion 
 Land surveyor, pursuant to section 3 of 49 
 Vic. (D), now section 9 of chapter 99 of 
 the R.S.C. 1906. In authorizing the 
 
 surveyor to survey the road, the Surveyor- 
 General had directed him to make the 
 road 99 feet wide. This was done and, in 
 1900, an order-in-council was passed by 
 the Dominion Government approving 
 the survey and transferring to and vesting 
 the road in the Province of Manitoba for 
 the purposes of a public highway. 
 
 All the evidence, however, according to 
 the finding of the trial judge, showed that 
 the road in question was only 66 feet wide 
 for many years prior to the survey referred 
 to. 
 
 Held, that the Surveyer-General had no 
 authority to make the road of a greater 
 width than it had been or to deprive the 
 defendant of any of his land by giving 
 such a direction, that the Dominion 
 Government could not by legislation 
 interfere with the rights the defendant had 
 acquired, nor could it attempt to do so by 
 order-in-council, that the approval of the 
 survey by the Dominion Government 
 could not deprive the defendant of any of 
 his land, and that he was not bound to 
 move his fence back so as to make the 
 road wider than 66 feet. Rural Munici- 
 pality qfSt. Vital V. Mager, 19 M.R., 293. 
 
 See Municipality, IV, 3, 6; VII, 5. 
 — Railways, IV, 3. 
 
 HIGHWAY CROSSING. 
 
 See Railways, VIII, 3. 
 
 HIRING AND SERVICE. 
 
 See Contract, XV, 9. 
 
 — Master and Servant, IV, 1, 2. 
 
 — Statute op Frauds, 4. 
 
 HOLDER IN .DUE COURSE. 
 
 i Bills and Notes, III, 2; VI, C; VIII, 
 
 1, 8, 9, 10, 11, 12; X, 4. 
 Fraudulent Conveyance, 13. 
 Partnership, 1. 
 Summary Judgment, I, 3. 
 
 HOLIDAYS. 
 
 See Time. 1, 3, 5. 
 
531 
 
 HOMESTEAD. 
 
 532 
 
 HOMESTEAD. 
 
 1. Agreement to convey— Lifire o/ 
 
 vendee for purchase money — Laches — Issue 
 to try facts — Costs. 
 
 _ A statute declaxed that all assignments 
 and transfers of homestead rights before 
 the issue of the patent except, &c., shall be 
 null and void. By another clause the 
 homesteader might acquire a pre-emptive 
 right to other lands, "but the right to 
 claim such pre-emption shall cease and be 
 forfeited upon any forfeiture of the home- 
 stead right." 
 
 A homesteader before patent agreed to 
 sell both homestead and pre-emption; 
 $50 was paid at once and the balance was 
 to be paid when a deed given with a good 
 title. 
 
 The vendor applied for a certificate of 
 title to the pre-emption and the purchaser 
 filed a caveat, and,, on it, a petition claim- 
 ing a lien for the purchase-money. 
 
 Held, 1. That the agreement was not 
 illegal as to the pre-emption. 
 
 2. That, the Crown not having taken 
 advantage of the forfeiture, but issued the 
 patents, the piirchaser acquired a hen 
 upon the pre-emption, although probably ' 
 not on the homestead. 
 
 3. The petition was defective in not 
 showing the petitioner's claim of title. 
 
 4. Such a petition need not show upon 
 its face that it is filed in time. 
 
 5. Lapse of time which would disentitle 
 a purchaser to specific performance may 
 not affect his lien. 
 
 6. A disputed question of fact not tried 
 upon affidavit, but an issue directed and 
 form given. 
 
 7. No costs of appeal given when point 
 upon which case disposed of was not 
 argued. Clarke v. Scott, 5 M.R., 281. 
 
 2. Assignment of homestead rights 
 before recommendation for patent. 
 
 An assignment of homestead right 
 previous to recommendation is void not 
 only as between the homesteader and 
 the Crown, but also as between the parties 
 to the transaction, {overruling Dubuc, J., 
 and Wallbridgb, C. J., dissenting). In 
 such a case the assignee would not be 
 entitled as against the assignor, even to a 
 lien for improvements placed by the former 
 upon the property. 
 
 A voluntary promise to transfer land 
 will not be enforced in equity. 
 
 Therefore when a homesteader, free 
 from debt, voluntarily promised before 
 
 recommendation, to convey the land to his 
 wife, and after recommendation did so 
 convey; 
 
 Held, That such conveyance did not, by 
 virtue of the previous promise, cut out a 
 judgment registered before the execution 
 of the conveyance. Harris v. Rankin, 4 
 M.R., 115. 
 
 _ 3. Conveyance before reconmienda- 
 tion — Estoppel by conduct. 
 
 Defendant C. homesteaded certain land 
 in October, 1880. He was a clerk in 
 plaintiffs' employ and, being desirous of 
 obtaining a loan from plaintiffs upon the 
 land, conveyed it to defendant W. on 1st 
 January, 1883. At that time he had no 
 recommendation for patent. On the 26th 
 January, 1883, he purchased the land under 
 42 Vic, c. 31, s. 34, s-s. 15. On the 27th 
 January W. executed a mortgage to the 
 plaintiffs. C. received the money, made 
 payments on accounts of interest, and 
 asked time for other payments. The 
 patent issued to C. on 9th June, 1883, and 
 afterwards W. reconveyed to C, who was 
 in reality, always the owner of the land. 
 
 Upon a biU to foreclose the mortgage — 
 
 Held, 1. That the mortgage was not 
 void, for it was made after the land had 
 been purchased from the- Crown, and not 
 while it was a homestead. 
 
 2. That C. was, by his conduct, estopped 
 from saying that W. had no title at the 
 date of the mortgage, and from claiming 
 title in himself under the patent. Mani^ 
 toha Investment Association v. Watkins, 4 
 M.R., 357. 
 
 4. Registered judgment as charge on 
 
 — Form of Certificate — Homestead^ land 
 prior to patent. 
 
 Homesteads, although prior to patent* 
 and subsequent to recommendation ex- 
 empt from seizure imder ^. fa., are subject 
 to be charged by, registered judgments. 
 
 A certificate of judgment in the form 
 referred to in this case (4 M.R. 115), 
 but having the date correct and its amount 
 such as would shew the judgment to be. of 
 record in the Queen's Bench, is valid. 
 Harris v. Rankin, 4 M.R., 512. 
 
 6. Registered judgment as charge on 
 
 — Patent, effect of. 
 
 After the registration of a judgment 
 against a homesteader who had obtained 
 his recommendation, he assigned the land 
 to a third party to whom the patent issued. 
 
533 
 
 HORSES RUNNING AWAY. 
 
 534 
 
 Held, That the land was liable, not- 
 withstanding the patent, to answer the 
 judgment. Harris v. Rankin, 4 M.R., 
 115. 
 
 6. Unpatented Dominion Lands — 
 
 "Transfer" — Incumbrance — Charge to se- 
 cure debts — Sanction of Minister — Absolute 
 nullityi — Construction of statute — 60 & 61 
 Vic., c. 29, s. 5.; BJS.C. (1906), i;. 55, 
 s. 142. 
 
 On 6th August, 1904, the holder of 
 rights of homestead and pre-emption in 
 Dominion lands in Manitoba, which had 
 not then been patented or recommended 
 for patent, assumed to "incumber, charge 
 and create a lien" upon the lands as secur- 
 ity for the payment of a debt by an instru- 
 ment executed without the sanction of the 
 Minister of the Interior. 
 
 Held, affirming the judgment appealed 
 from (19 M.R. 97; ante, col. 347), that 
 the instrument was in effect a "transfer" 
 and was absolutely nuU and void under 
 the provisions of the "Dominion Lands 
 Act. American-Abell Co. v. McMillan, 
 42 S.C.R. 377. 
 
 See Descbiption of Land, 1. 
 
 — Dominion Lands Act, 1, 2. 
 
 — Exemptions, 1, 3, 7. 
 
 — Registered Judgment, 4. 
 
 HORSES RUNNING AWAT. 
 
 See Negligence, VI, 2; VII, 1. 
 
 HOTEL KEEPER. 
 
 Neglir 
 
 Loss of property of guest 
 
 gence — Contributory negligence. 
 
 Appeal from verdict of County Court in 
 favor of plaintiff. 
 
 The plaintiff arrived at the City of 
 Winnipeg, by train, and, intending to put 
 iip at defendants' hotel, dehvered some of 
 his luggage to the driver of a Baggage 
 Transfer Company to be taken [there. 
 He then walked to the hotel, registered 
 his name and was assigned a room where 
 he left his valise which he had carried with 
 him. Later in the same day, the Transfer 
 Company's driver brought the plaintiff's 
 parcels to the hotel, left them in the hall 
 
 with other luggage and informed the hotel 
 clerk in the office that he had done so. 
 
 The part of the hall where the parcels 
 were left was not visible from the office. 
 
 The hotel was crowded, the City was 
 unusually fuU of visitors, persons going 
 to and from the hotel bar passed the place 
 where the parcels were and it was not a safe 
 place for unwatched luggage to be left in. 
 
 The plaintiff noticed his parcels there 
 about eleven o'clock the same night, but 
 did not remove them or draw the attention 
 of the hotel servants to them. The next 
 day he noticed that the parcels were not in 
 the hall, but said nothing about it until the 
 third day after, when he asked for the 
 parcels. They could not then be found 
 and the presumption was that they had 
 been stolen. 
 
 Neither the defendants nior any of their 
 servants had paid any attention to the 
 parcels or moved them in any way. 
 
 Held, per Richards, J., that the parcels 
 got into the custody of the defendants 
 when the driver who brought them re- 
 ported to the hotel clerk that he had done 
 so, that . the plaintiff was justified in 
 assuming, when he saw his parcels in the 
 hall, that they were being cared for by the 
 defendants, and that, when he missed 
 them the next day, he had a right to sup- 
 pose that they had been put into the de- , 
 fendants' baggage room, and that he had 
 not been guilty of such negligence as to 
 disentitle him to recover their value from 
 the defendants. 
 
 Per Perdue, J. — The plaintiff was guilty 
 of such gross jiegligence, under the cir- 
 cumstances, in not calling the attention 
 of the hotel keepers to his parcels, when he 
 saw them lying in the hall, and taking no 
 steps to have them removed to a safer 
 place, as to reUeve the defendants from 
 their common la* liability as innkeepers. 
 Oppenheimv. White Lion Hotel Co., (1870) 
 L.R. 6 C.P 515; Cashill v. Wright, (1856) 
 6 E. & B. 890, and Jones v. Jackson, (1873) 
 29 L.T. N.S. 399. 
 
 The Court being divided the appeal 
 was dismissed without costs. Barrie v 
 .Wright, 15 M.R. 197. 
 
 See Liquor License Act, 11. 
 
 HUDSON'S BAT COMPANY. 
 
 See Title to Land, 3. 
 
535 
 
 HUSBAND AND WIFE. 
 
 536 
 
 HUSBAND AND WIFE. 
 
 I. OwNBBSHiP OP Chops Gkown on 
 
 Wife's Land. 
 II. OwNEBship OF Goods in Business 
 Caeried on in Wife's Name. 
 
 III. Separate Btjbiness. 
 
 IV. Other Cases. 
 
 I. Ownership op Chops Grown on 
 Wife's Land. 
 
 1. Husband working wife's farm— 
 
 Execution — Notice of. 
 
 A judgment debtor worked a farm be- 
 longing to his wife. The seed grain had 
 been purchased partly by each. The 
 husband paid for a portion of the threshing 
 by his labor. He did all the work, and 
 the horses and- implements used were his. 
 
 Held, That the crop belonged to the 
 husband and could be seized under an 
 ^ execution against him (overruling Dtjbuc, 
 J.). 
 
 Upon the evidence, Held, That the 
 plaintiff who had purchased the crop from 
 the wife had notice of an execution against 
 the husband prior to his purchase. 
 
 Per Dtjbdc, J. — (In judgment appealed 
 
 from.) The Chattel Mortgage Act does 
 
 not apply to a sale of grain in the stack 
 
 when the bargain requires the vendor to 
 
 'thresh and afterwards deliver it. 
 
 Parenteau v. Harris, 3 M.R. 329. 
 
 2. Married Women's Act ^ Inter- 
 pleader — Distinction between hay and other 
 crops. 
 
 In an interpleader issue to determine 
 the ownership of a quantity of grain and 
 hay seized by the sheriff under the defend- 
 ant's execution against the plaintiff'^ 
 husband, the evidence showed that the 
 husband had previously been engaged in 
 farming on his own account, but had 
 failed; that afterwards the plaintiff leased 
 in her own name the two farms on which 
 the seized crops were grown arid went 
 • with her husband and family to live on 
 one of them, with the bona fide intention, 
 as the trial judge found, of carrying on the 
 farming business for her own benefit; but 
 that the husband did the farm work with 
 the help of the children and a hired man, 
 in much the same way as any farmer does, 
 although his health was not so good and 
 he could not do as much work as formerly, 
 and the plaintiff gave a little assistance. 
 
 if eZd, following Ady v. Harris, 9 M.R. 
 127, and Streimer v. Merchants' Bank, 9 
 M.R. S46, that, although the wife was the 
 
 bona fide tenant of the land, yet it was the 
 husband who had occupied it and raised 
 the crops in question, and that such crops, 
 except the hay, must be treated as the 
 property of the husband in an issue be- 
 tween his execution creditors and his wife. 
 
 As to the hay, however, the majority of 
 the Court (Bain, J., dissenting) : 
 
 Held, that, being the natural product , 
 of the land of which the wife was the ten- 
 ant, it came under the description of 
 issues and profits of her separate estate 
 referred to in section 5 of The Married 
 Women's Act, R.S.M., c. 95, and thai the 
 plaintiff was entitled to it as against the 
 defendants. Slingerland v. Massey Man- 
 ufacturing Co., 10 M.R. 21. 
 
 3. Married Women's Property Act— 
 
 Interpleader. _, 
 
 The crops seized under the defendants', 
 execution were raised on the land of the 
 plaintiff, the wife of S. the exeeution deb- 
 tor, chiefly by the labor of S. and the 
 children under S.'s superintendence. 
 
 The horses and implements used in 
 doing the work were the property of S. 
 At the close of the previous season S. had 
 had the crops on his own farm seized and 
 sold under execution, and the farm was 
 taken from him for a mortgage debt. The 
 plaintiff then arranged to purchase, on 
 credit, the land on which the crops now 
 in question were raised, and to carry on 
 farming operations on her own account, 
 in order, as the Judge foimd, to support 
 the family and with no intention of de- 
 frauding her husband's creditors as they 
 had nothing left that would be available 
 for the latter under execution. 
 
 Held, nevertheless, following Ady v. 
 Harris, 9 M.R. 127, and Parenteau v. 
 Harris, 3 M.R. 329, that the crops in 
 question must, under all the circumstances, 
 be held to be the property of the husband 
 and not of the, plaintiff as against the 
 execution creditors of the former. 
 
 Striemer v. Merchants' Bank, 9 M.R. 
 546. 
 
 4. Separate business — Farming busi- 
 ness — Onu^ of proof. 
 
 Held, that, where the -husband osten- 
 sibly carries on upon the land of his wife' 
 the work of farming, it should be pre- 
 sumed, in the absence of evidence, to the 
 contrary, that his wife allows him the use 
 of her land for the purpose and that the 
 crops are his, and that, where he does the 
 work with the assistance of a hired man, 
 the' onus is upon the wife, notwithstanding 
 
537 
 
 HUSBAND AND WIFE. 
 
 538 
 
 her ownership of the land, to establish that 
 the husband is her servant, and the farm- 
 ing business really hers. 
 
 . Held, also, that such evidence as was 
 presented in this case, (being that of the 
 husband and wife solely) not corroborated 
 by independent evidence, and contradicted 
 by the independent and written- evidence, 
 as far as it went, ought not to be taken as 
 sufficient to estabUsh that the farming 
 business was carried on by the wife, al- 
 though, if the onus of establishing this were 
 not upon the wife, it would not sufficiently 
 show that it was not the business of the 
 husband. Ady v. Harris, 9 M.R. 127. 
 
 Distinguished,^ DoujZas v. Fraser, 17 
 M.R. 439. 
 
 6. Separate business. 
 
 At the trial of an interpleader issue 
 between the plaintiff, the wife of the 
 execution debtor, and the defendants, 
 execution creditors of the husband, the 
 Judge found on the facts as foUows: — 
 
 That the lands on which the crops 
 seized had been grown were mortgaged 
 to the Trust and Loan Company; that 
 the mortgagor, the debtor, had failed in 
 1893, most of the crops of that year and 
 his stock and farming implements having , 
 been seized and sold under execution and 
 chattel mortgage; that, interest being in 
 arrear, the officers of the Loan Company 
 in the spring of 1894, teased the property 
 to the plaintiff f<)r three years, whether by 
 the authority of the Company or not did 
 not appear; but that the plaintiff entered 
 into thelease in good faith, and that both 
 the husband and wife intended and under- 
 stood that there should be and was a Iq^e 
 to the wife, and that she should and did 
 carry on the work of farming on the said 
 lands for her separate profit and as her 
 separate business; also that the horses and 
 cattle by the work of which the farming 
 operations* were carried on had been sold 
 to the plaintiff by the mortgagee under 
 chattel mortgage given by the- husband, 
 and that such sale was not fraudulent as 
 against the creditors; that the plaintiff • 
 entered into a covenant to pay the rent 
 under the lease and incurred a heavy 
 liability to an implement company for 
 seed grain and implements and binder 
 twine, and also hired the men who were 
 employed to conduct the farming opera- 
 tions; and that she assumed to make a 
 contract with her husband to act as her 
 servant for wages; that she was actually 
 the farmer, and that it was intended and 
 understood between herself and her hus- 
 
 band and the Loan Company that she 
 should have the possession and use of the 
 premises; that the farming operations 
 carried on in 1894 under such circumstances 
 constituted a separate occupation by her, 
 and were her separate business; and that 
 on the whole the amounts which she 
 covenanted to pay for the three years of 
 the lease represented the fair rental value 
 of the property for that period; and he 
 entered a verdict for the plaintiff. 
 
 On motion to the Full Court to reverse 
 this verdict, the majority of the judges 
 considered that the following additional 
 circumstances appeared by the evidence: — 
 The plaintiff, when she undertook to 
 farm for herself, had no means of her own. 
 The lands on which the crops claimed were 
 grown had in the preceding autumn been 
 ploughed and prepared for planting by 
 the husband, and some of the seed sown 
 in the spring belonged to him. After she 
 leased the land, the plaintiff and her hus- 
 band and the family continued to live on 
 the homestead as before,' and the actual 
 farming work on the land was done for the 
 most part by the husband and two men 
 who had worked for him before the lease 
 was made to the plaintiff. 
 
 The majority of the Court considered, 
 also, that clear and unequivocal evidence 
 should be required of the reality of the 
 alleged separate occupation on the part of 
 the wife, and of the hiring of the husband 
 as a farm servant by the plaintiff; and, 
 there being no other evidence as to these 
 matters except that of the plaintiff and her 
 husband, with which they did not feel 
 satisfied; 
 
 Held, (DuBuc, J., dissenting), that the 
 evidence was insufficient to estabhsh any 
 separate occupation of the lands by the 
 wife, or that the hiring of the husband as 
 a farm servant was more than an empty 
 form and colorablaj or that the farming 
 business carried on was her separate 
 business, and that the verdict entered for 
 the plaintiff should be set aside and a 
 verdict entered for the defendant. 
 
 Per DuBuc, J., There was sufficient 
 evidence to support the findings of the 
 trial Judge on the facts; and this case 
 should be decided on the principles laid 
 down in Murray v. McCallum, 8 A.R. 277; 
 Dominion Loan and Investment Company v. 
 Kilroy, 14 O.R. 468; LoveU v. Newton, 4 
 C.P.D. 7; andf ngram v. Taylor, 46 U.C.R. 
 52; and the verdictshould not be disturbed. 
 Goggin v. Kidd, 10 M.R. 448. 
 
 Distinguished, Nichol v. Oocker, 12 
 M.R. 178. 
 
639 
 
 HUSBAND AND WIFE. 
 
 540 
 
 II. Ownership op Goods in Busi- 
 ness Carried on in Wipe's Name. 
 
 1. Separate property of wife — Inter- 
 pleader — Married Women's Act. 
 
 In August, 1890, the judgment debtor 
 who carried on a jeweby business was sold 
 out under execution, and he remained 
 indebted and ceased carrying on business? 
 In March, 1891, his wife opened a jeweby 
 store in her own name. All goods pur- 
 chased lor the business were sold to her 
 and the wholesale dealers would not have 
 sold on credit to the husband. The in- 
 voices, drafts, receipts, &c., were all^made, 
 and the correspondence conducted, in the 
 name of the wife. She was the tenant of 
 the premises, and paid the rent. The 
 husband was employed in the store,attend- 
 ing to the correspondence and the financial 
 part of the business under a power. of 
 attorney from Ms -wife, and he did most of 
 the repairing and assisted in the selling 
 and bujdng. 
 
 The wife was in the shop most of the 
 time, selling, buying and doing some of the 
 repairing. She claimed to have been 
 sixteen years in the jewelry business and 
 to have had a good deal of experience, and 
 she had abandoned keeping house to at- 
 tend to the business. 
 
 Held, that under these circumstances 
 the goods in the stop were the property of 
 the wife as agaiilst execution creditors 
 of the husband. 
 
 Dominion Savings Co. v. Kitroy, 15 A.R. 
 487, followed. DoU v. Conboy, 9 M.R. 185. 
 
 2. Separate property of wife— Married 
 Women's Property Act, B.S.M., 1902, c. 
 106, s. 2^ (6). , 
 
 1. The proceeds of the sale by the hus- 
 band of a parcel of real estate owned by 
 the wife, though they came into the 
 husband's hands prior to 21st May, 1900, 
 when it was enacted that all property . 
 standing in the name of a married woman 
 on that date should be deemed to be her 
 property until the contrary is shown, and 
 although the land had been conveyed to 
 her by the husband during coverture, 
 belonged to the wife; for, apart from 
 section 21 of R.S.M., 1892, c. 95, which 
 provided that a man might, make a valid 
 conveyance or transfer of land to his wife 
 without the intervention of a trustee, a 
 husband may make a gift of property to 
 his wife, which property, if the gift be 
 completed, will in equity be considered as 
 
 her separate property, provided that the 
 husband is at the time in a position 
 financially to make the gift, and does not 
 do it with any intention of defrauding his 
 creditors: Kent v. Kent, (1892) 19 A.R. 
 352. 
 
 2. The profits made in the fur business 
 started with such proceeds and carried on 
 from the first in the wife's name, though- 
 managed chiefly by the husband, (all the 
 goods required for the business having 
 been sold to her and on her credit only as-, 
 the husband had unsatisfied judgments 
 against him)- belonged to the wifa and so 
 did all good^purchased out of such profits 
 and put into such business. ' 
 
 DominionLoan, etc. Co. v. Kilroy, (1887) 
 14 O.R. 468, followed. 
 
 Ady V. Harris, (1893) 9 M.R. 127, and 
 other "farm" cases distinguished. 
 
 3. Such profits are protected for the 
 married woman by the definition of the 
 word "property" in sub-section (b) of 
 section 2 of R.S.M., 1902, c. 106, as 
 meaning "any real or personal property 
 of every kind and description whether 
 acquired before or after the commence- 
 ment of this Act, and shall include the 
 rents, issues and profits of any such real 
 or personal property," and by section 5 
 of the same Act; and such protection is 
 not taken away by the further clause in 
 said sub-section (6) reading: — "and in- 
 cludes also . . -. all wages, earnings, 
 money and property gained or acquired 
 by a married woman in any employment, 
 trade or occupation in which she is en- 
 gaged or which she carries on separately 
 frofti Tier husband, and in which her 
 husband has no proprietary interest," 
 although it was admitted that the business 
 was not carried on by the wife separately 
 from her husband. The word "profits 
 as used in those sections should,be held to 
 cover gains arising from a combination of 
 skill or work with the earning property 
 or capital as well as those arising only 
 .from investments without such combina- 
 tion. Douglas v. Fraser, 17 M.R., 439. 
 
 Affirmed, 40 S.C.r"! 384. 
 
 III. Separate Business. 
 
 1. Liability on contract — Separate es- 
 tate — Interest. ' 
 
 The plaintiff was employed as the 
 servant of the defendant in managing a 
 farm owned by her, and it was understood 
 between them and defendant's husband 
 
641 
 
 HUSBAND AND WIFE. 
 
 542 
 
 that the farming operations, as also a 
 banking business carried on at the same 
 time, were hers. The negotiations for 
 the employment of the plaintiff were con- 
 ducted by the husband, though partly in 
 the defendant's presence, and it was the 
 husband who was consulted by the plaintiff 
 in all matters of importance relating to 
 the farm as well as to the bank, though 
 at times the defendant was present. The 
 husband gave defendant the benefit of his 
 advice and assistance and also acted as 
 book-keeper for her in the- banking busi- 
 ness, but it did not appear that he had 
 any fixed salary or what was the arrange- 
 ment, if any, between him and defendant. 
 
 Held, that such participation by the 
 husband would not, in the case of an 
 outsider contracting with his wife, abso- 
 lutely prevent the finding that the business 
 was carried on by the wife separately 
 from her husband, and that 'on the 
 evidence such finding was the proper one 
 in this case. If, however, the defendant, 
 on the same state of facts, were claiming 
 the profits or- proceeds of the farming 
 operations as against her husband's 
 creditors, it would be impossible to hold 
 it sufficiently proved that the business 
 was bona fide intended to be that of the 
 wife alone. It depends on the circum- 
 stances of each particular case what is the 
 degree or nature of the participation by 
 the husband which prevents the finding 
 of a separate business. 
 
 Merchants' Bank v. Carley, (1892) 8 
 M.R. 258, and Goggin v. Kidd, "(1895) 10 
 M.R. 448, distinguished. 
 
 To be entitled to interest before action 
 a plaintiff must show (1) an express con- 
 tract for interest, or (2) that the nature 
 of the claim is such that the contract can 
 be implied, or (3) that the debt is payable 
 by virtue of a written instrument, or (4) 
 . that there was a demand with notice that 
 interest, would be claimed under 3 & 4 
 Wm. 4, c. 42, s. 28. Nichol v. Gocher, 12 
 M.R. 177. 
 
 2. Liability of goods for husband's 
 debts — Omis of proof — Not necessary to 
 prove judgment and execution in inter- 
 pleader issue. 
 
 The goods of the plaintiff were seized 
 under an execution against her husband. 
 She claimed that she had purchased the 
 goods from a brother of her, husband. 
 The original stock of goods had belonged 
 to a former wife of the judgment debtor, 
 and the husband's brother was trustee of 
 her estate. The plaintiff did not satis- 
 
 factorily show how she became possessed 
 of the separate estate with which the 
 purchase was made. 
 
 Held, (Affirming the decision of 
 KiLLAM, J.), 
 
 1. That the onus of proof was on the 
 plaintiff and that the evidence must be 
 clear and satisfactory as to how she 
 became possessed of her separate estate, 
 and that her own uncorroborated evidence 
 was not sufficient. 
 
 2. That, on a sheriff's interpleader, it is 
 not necessary for the execution creditor 
 to prove the judgment and execution. 
 Ripstein v. British Canadian Loan & In- 
 vestment Co., 7 M.R. 119. 
 
 IV. Other Cases. 
 
 1. Liability of husband for goods 
 supplied to household. 
 
 When goods are ordered by a married 
 woman living with her hvtsband for use in 
 the household, the presumption of law is 
 that the wife is acting as the agent of her 
 husband, and such presumption is not 
 displaced by the fact that the merchant 
 kept the account in the name of the wife 
 and rendered statements of it from time 
 to time to her instead of to her husband. 
 
 Paquin v. Beauclerk, [1906] A.C. 160,- 
 distinguished. Vopni v. Bell, 17 M.R. 
 417. 
 
 2. Married women's separate prop- 
 erty — Interpleader — Estoppel. 
 
 Interpleader issue between an execution 
 creditor and the wife of the judgment 
 debtor as to the ownership of horses and 
 cattle. 
 
 The evidence showed the wife had 
 money of her own before she married, 
 that with that money she, after the 
 marriage, bought cattle, - that she ex- 
 ohanged part of the increase of thefee 
 cattle for other cattle and for horses, and 
 that in that way, between purchases, 
 exchange and increase, she had acquired 
 the animals in question. 
 
 The evidence also showed, however, 
 certain isolated instances of the husband 
 deaUng with some of these animals, 
 amongst others that he had given a chattel 
 mortgage on some of them with the wife's 
 consent, and that the farm was the 
 property of her husband. 
 
 Held, that the wife was entitled to a' 
 verdict upon such evidence, and there 
 would be no estoppel as against her 
 except in favor of the chattel mortgagee. 
 
543 
 
 HYPOTHECATION OF GOODS. 
 
 544 
 
 Haffner v. McDermoU, K.B. Manitoba, 
 unreported, followed. Simpson v., Do- 
 wMonBonfc, 19 M.R. 246. 
 
 3. Wife suing for personal services — 
 
 Corrobofation in suit against estate of 
 deceased — Joinder of parties^ Notice by 
 administrator disputing claim — R.S.M., 
 c. 146, s. 31. 
 
 1 A married woman has no right of 
 action for nursing a person boarding with 
 her and her husband, unless there has 
 been a special agreement with h6r to pay 
 her for such service; and in that case she 
 should sue for it alone. 
 
 Xpung V. Ward, (1897) 24 A.R. 147, 
 distinguished. 
 
 2. The claim of a creditor against the 
 estate of a deceased person whose domicile 
 was in Manitoba is not barred in a 
 Manitoba court by failure to sue within 
 six months after a notice under section 31 
 of R.S.M., c. 146, repudiating the claim 
 given by an administrator of such estate 
 appointed by a foreign court, though the 
 letters of administration be afterwards 
 re-sealed in Manitoba pursuant to The 
 Surrogate Courts Act. Such a notice, 
 to be effectual, must be given by the 
 person who is at the time the duly ap- 
 pointed administrator of the estate in 
 Manitoba. 
 
 3. Whilst the evidence of a claimant 
 against the estate of a deceased person 
 should be clear and convincing andy if 
 hot corroborated, will not be readily 
 acted on, there is -no absolu e rule of law 
 requiring such corroboration in this 
 Province. 
 
 In re Qamett, (1885) 31 Ch. D. 1, and - 
 In re Hodgson, (1885) *., 177, followed. 
 Doidge v. Mimms., 13 M.R. 48. 
 
 See Administration, 7. 
 
 — Alimony, 1. 
 
 — Deed op Settlement. 
 
 — Examination of Judgment Debtor, 
 
 12. 
 ' — Fbatidulent Conveyance, 11, 14, 19. 
 
 — Fraudulent Judgment, 3. 
 
 — Fraudulent Preference, IV. 
 
 — Landlord and Tenant, I, 2, 4. 
 
 — Lunatic, 1. 
 
 — Married Woman. 
 
 — Principal and Agent, V, 3. 
 
 — Principal and Surety, 4. 
 
 — Real Property Limitation Act, 4. 
 
 — Title to Land, 2. 
 
 — Voluntary Conveyance. 
 
 HYPOTHECATION OF GOODS. 
 
 See Banks and Banking, 5. 
 — Warebousb Receipt, 
 
 ICE AND SNOW ON SIDEWALK. 
 
 See Municipality, IV, 3. 
 
 IDENTITY. 
 
 See Criminal Law, VI, 3. 
 Evidence, 11, 26. 
 Liquor License Act, 6. 
 
 IDENTITY OF CHARGE. 
 
 See Extradition, 5. 
 
 IDENTITY OF GOODS. 
 
 See Practice, XXVIII, 32. 
 
 IDENTITY OF PARTIES. 
 
 See Staying Proceedings, I, 6. 
 
 ILLEGAL CONSIDERATION. 
 
 See Bond. 
 
 ILLEGAL DISTRESS. 
 
 See Distress for Rent, 1, 2, 3. 
 
 ILLEGAL SEIZURE. 
 
 See Jury Trial, I, 5. 
 
 ILLEGALITY. 
 
 1. Agreement between one creditor 
 and the debtor to purchase debtor' s 
 stock from assignee — Illegal contract. 
 
545 
 
 ILLEGALITY. 
 
 546 
 
 H^, that the declaration hereunder set 
 out, did not disclose a contract void for 
 illegality. 
 
 This was a demurrer by the defendant 
 to the following declaration: "For that 
 the plaintiffs had prior to the month of 
 December, 1882, been carrying on business 
 as general provision merchants at the 
 City of Winnipeg; and in the said month 
 of December the plaintiffs assigned to one 
 William Georgeson, the manager of the 
 defendant's business at the said City of 
 Winnipeg, all the stock in trade of the 
 plaintiffs in connection with their said 
 business for the benefit of all the creditors 
 of the plaintiffs, including the defendants; 
 that the said Georgeson thereupon pro- 
 ceeded to try and procure a purchaser for 
 the said stock and- assets and the plaintiffs 
 were desirous of buying the said stock aiid 
 assets, and throv^ the assistance- of 
 friends intended making an offer for the 
 purchase of the same, as the defendants 
 well knew; and the defendants in further- 
 ance of the plaintiffs' desire to purchase 
 the said stock and assets, proposed to the 
 plaintiffs that the defendants should pur- 
 the same at as small a figure as possible 
 for the benefit of the plaintiffs, and that 
 the plaintiffs should thereafter enter into 
 possession of ihe said stock and sell and 
 dispose of the same in the ordinary course 
 of business, and that out of the proceeds 
 thereof the defendants should iDe paid 
 from time to time the weekly receipts, 
 less the Uving expenses of the plaintiffs, 
 until the amount so to be paid by the 
 defendants for the purchase of the said 
 stock and interest thereon, and in addition 
 thereto such a sum as, if added to the 
 aniount which the defendants -should 
 receive from the said Georgeson as the 
 assignee of the plaintiffs as aforesaid, 
 would pay to the defendants the whole 
 araount of the then indebtedness to them 
 of the pjlaintiffs, should be fuUy paid; and, 
 in consideration that the plaintiffs would 
 not make a bid for the said stock and 
 would exercise their influence to prevent 
 their friends from bidding therefor, the 
 defendants promised the plaintiffs that 
 they, the defendants, would purchase the 
 said stock at as smaU a figure as possible, 
 and would allow the plaintiffs to enter 
 into possession and sell and dispose of the 
 same until the amount paid by the defend- 
 ants, together with interest thereon and 
 the further amount aforesaid,' should be 
 repaid to them out of the proceeds as 
 above set forth; and that the plaintiffs 
 should be entitled to the balance of said 
 
 stock, or the proceeds thereof for their 
 own use and benefit; and the plaintiffs did 
 refrain from bidding on the said stock, and 
 did exercise their influence to induce their 
 friends to refrain from bidding thereon; 
 in consequence of which, and in conse- 
 quence of it being- known to the other 
 creditors of the plaintiffs that the defend- 
 ants were in reality purchasers foj the 
 benefit of the plaintaffs, and in pursuance 
 of the said agreement, the defendants 
 were enabled to and did purchase the said 
 stock at a price very much below its 
 value." The declaration then alleged a 
 breach of the- agreement. Toussaint v. 
 Thompson, 3 M.R. 504. 
 
 Affirmed, 4 M.R. 499. 
 
 As to costs, see 5 M.R. 53. 
 
 2. Gas meters not inspected — Illegal 
 contract. 
 
 A statute, after reciting that it was ex- 
 pedient "that the measurement of gas sold 
 and suppUed . . . should be . . . 
 regulated by one uniform standard, 
 . . . and that all gas meters should be 
 inspected and stamped," provided that it 
 should "not be lawful to fix for use any 
 gas meter which has. not been verified or 
 stamped as hereinafter provided," and 
 imposed a penalty for so doing. 
 
 In an action by a gas company for the 
 price of gas supplied through an unin- 
 spected and imstamped meter, 
 
 Held, that there must be implied, from 
 'the prohibition against fixing a meter for 
 use, a iwohibition against supplying gas 
 through it, and that the plaintiff could not 
 recover. Manitoba Electric & Gas- Ldght 
 Co. V. Geme, 4 M.R. 210. 
 
 Distinguished, Ferris v. C.N.R., 15 
 M.R. 134. 
 
 3. Recovery of lands conveyed to 
 deleat prior purchaser — Pleading — Ilk- 
 gal transaction. 
 
 A defendant who wishes to rely on the 
 iUegaUty of a transaction "must clearly 
 put forward his own scoundreUsm" in his 
 answer, Killam, J., dissenting. 
 
 Where land has been voluntarily con- 
 veyed to the grantee to hold it for some 
 illegal purpose, and that purpose has not 
 been carried out, the grantor is not pre- 
 vented from taking proceedings to recover 
 back the land. Killam, J., dissenting. 
 Mulligan v. Hubbai^; 5 M.R. 225. 
 
547 
 
 ILLEGITIMATE CHILD. 
 
 548 
 
 4. Sale of whiskey to be taken to 
 N. W. T. — Illegal contract. 
 
 Plaintiff agreed to put on board the 
 cars at B. a, certain quantity of whiskey 
 and potatoes; he knew that it was the 
 defendant's intention. to ship them through 
 the North-West Territories without ob- 
 taining a permit, and that to do so was 
 illegal ; and he assisted in the transaction 
 by concealing the whiskey among the 
 potatoes. The defendants agreed to pay 
 the price of the articles when placed on the 
 cars. 
 , In an action for the price of the goods — 
 
 Held, 1. That, even if the plaintiff had 
 agreed to ship the goods, their acceptance 
 by the railway wae a performance of the 
 contract, although the railway might have 
 subsequently refusedr to give a shipping 
 bill. ~' 
 
 2. A contract lawful in itseK is illegal, if 
 it be entered into with the object that the 
 law should be violated. , 
 
 3. As a matter of public poUcy courts 
 should refuse to enforce contracts pro- 
 jected in violation or intended violation 
 of Dominion legislation, although that 
 legislatioh' may not ajjply to the Province 
 in which the contract is made or is sought 
 to be enforced. 
 
 4. The fact that the illegal purpose was 
 not caxried out is immaterial. 
 
 5. The contract for the potatoes and 
 whiskey being an entire contract, the 
 plaintitf could not recover for the potatoes, 
 the defendants not having accepted or 
 received them. Hooper v. CoorrAs, 5 M.R. 
 65. 
 
 See BitLS and Notes, VIII, 9, 11. 
 — - Chose in Action, 1. 
 
 — Conspiracy in Restraint of Trade. 
 
 — Dominion Lands Act, 1. 
 
 — Gas Inspection Act. 
 
 — Injunction, I, 7. 
 
 — Liquor License Act, 11. 
 
 — Municipality, VIII, 4. 
 
 — Pleading, I, 2. 
 
 — Replevin, 6. 
 
 — ( Sale of Land tor Taxes, IV, 3; 
 IX, 2. 
 
 — Weights and Measures Act. 
 
 ILLITERATE PERSON. 
 
 See Contract, XV, 16. 
 
 — Vendor and Purchaser, VI, 5. 
 
 ILLITERATE VOTERS. 
 
 See Municipal Elections, 4. 
 
 IMPLIED AUTHORITY. 
 
 Se& Liquor License Act, 2. 
 
 IMPLIED CONDITION. 
 
 See Contract, XII, 1; XIV, 2. 
 — Sale of Goods, V, 2. 
 
 IMPLIED CONTRACT. 
 
 See Infant, 8. _ 
 
 — Railways, II, 1. 
 
 — Right op Action. 
 
 IMPLIED COVENANT. 
 
 See Contract, XV, 5. 
 
 — Indemnity, 4. 
 
 — Landlord and Tenant, IV, 2. . 
 
 — Mortgagor and Mortgagee, VI, 6. 
 
 — Rectification of Deed, 1. 
 
 IMPLIED OBLIGATION. 
 
 ■See Evidence, 19. 
 
 IMPLIED POWER. 
 
 See Expropriation, 2. 
 
 ILLEGITIMATE CHILD. 
 
 See Half-Breed Lands Act, 2. 
 
 — Infant, 4. 
 
 — Seduction, 2. 
 
 IMPLIED WARRANTY. 
 
 See Contract, XII, 1; XIV. 1. . 
 
 — Costs, XI, 9. 
 
 — Sale op Goods, V. 
 
 — ^Vendor and Purchaser, VII, 12. 
 
549 
 
 IMPOSSIBILITY OF PERFORMANCE. 
 
 550 
 
 IMPOSSIBILITY OF PERFORM- 
 ANCE. 
 
 See Accident Insurance, 2. 
 
 — Mutual Insurance, 2. 
 
 — Reslevin, 1. 
 
 IMPRISONMENT. 
 
 See Criminal Law, XVII, 19. 
 
 IMPROVEMENTS UNDER MISTAKE 
 OF TITLE. 
 
 See Will, I, 1. 
 
 IMPROVIDENCE. 
 
 See Crown Patent, 5. 
 - Deed op Settlement. 
 
 INADVERTENCE. 
 
 See Practice, XIV, 2. 
 
 INCUMBRANCES. 
 
 See Parties to Action, 6. 
 
 — Real Property Limitation Act, 1. 
 
 — Vendor and Purchaser, III; VI, 6. 
 
 INDECENT ASSAULT. 
 
 See Criminal Law, IV, 2. 
 
 INDEMNITY. 
 
 1. Covenant to pay ofl mortgage — 
 
 Quia timet — Parties — Trustees — Relief over 
 against cesiuis que trusterd — Boidence of 
 par^l agreement. 
 
 In a conveyance of land the grantee 
 covenanted "to save harmless and in- 
 demnified" the gi-antor from a mortgage 
 previously executed by him and from all 
 claims and demands in respect thereof. 
 
 Held, 1. That after demand made by 
 the mortgagee for payment upon the 
 
 grantor, and before the grantor had paid 
 any money, he could obtain specific per- 
 formance of the contract. 
 
 2. The mortgagee would not be a proper 
 party to such a bill. 
 
 3. The grantor must rely upon the 
 covenant and not upon any express or' 
 implied agreement to pay off the mortgage. 
 
 The answer set up that the defendant 
 purchased not for himself but as the agent 
 and trustee for five other persons. There 
 was no proof of this fact other than a 
 recital in a conveyance to which the 
 defendant and two of the alleged cestuis 
 que trustent were parties. 
 
 Held, 1. That the conveyance was no 
 evidence against the plaintiff. 
 
 2. That the- answer could not be read 
 as evidence against the plaintiff. 
 
 3. That the allegations in the answer 
 might be considered with a view to direct- 
 ing further investigation into particular 
 facts. 
 
 4. That, as the cestuis que trustent Uved 
 out of the jurisdiction, the Court would 
 not, in its discretion, allow further evi- 
 dence to be given. 
 
 5. Quoere, whether, in any case, the 
 defendant would be entitled to hp,ve the 
 cestuis que trustent made pa,rties. Hors- 
 man v. Burke, 4 M.R. 245. 
 
 2. Covenant to indemnify — AdiMimi, 
 before payment by covenantee. 
 
 A., the owner of land subject to two 
 mortgages, conveyed to B. subject to the 
 mortgages, and B. covenanted "to pay off 
 and discharge the above-recited mortgages 
 and interest as the same shall become due, 
 and forever save harmless the said party 
 of the second part from amy loss, costs, or 
 expenses connected therewith." 
 
 Held, that an action might be brought 
 upon this covenant and the amount due 
 upon the mortgages recovered before 
 payment of any part of them by the 
 covenantee. Cvllin v. Rinn, 5 M.R. 8. 
 
 Distinguished, Grundy v. Grundy, 10 
 M.R. 327, SviUm v. Hinck, 19 M.R. 705. 
 
 3. Covenant to indemnify — Pleading. 
 
 At the dissolution of partnership be- 
 tween plaintiffs and defendant, the plain- 
 tiffs covenanted with the defendant that 
 they would pay the liabilities of the firm 
 to a bank, but no time was fixed for pay- 
 ment. 
 
 Defendant, by way of counterclaim 
 against the plaintiffs' declaration, claimed 
 damages under this covenant, and alleged 
 
651 
 
 INDEPENDENT ADVICE. 
 
 552 
 
 that plaintiffs had failed to pay the debt, 
 and that the bank held defendant liable 
 for it a,nd had threatened to sue him, and 
 that his credit was unfavorably affected 
 by the fact of the said liability standing 
 against him. 
 
 Plaintiffs replied that they had paid off 
 about two-thirds of the original Uability, 
 and that the balance would be paid in the 
 ordinary course of business in a short 
 time, and that plaintiffs had given ample 
 security to the balik for such balance, and 
 that the bank had not in any way called 
 on the defendant to pay or satisfy the 
 debt, and had not threatened or intended 
 to sue or harass the defendant therefor. 
 
 Held, that this rephcation was good. 
 CuUin V. Binn, 5 M.R. 8;Leilh v. Freeland, 
 24 U.C.R. 132; Lethbridge v. MyUon, 2 B.& 
 Ad. 772: distinguished. Grundy v. Grundy, 
 10 M.R. 327. 
 
 _4. Implied Undertaking to imdem- 
 nify grantor — Security for debt — Estoppel 
 — Recital as estoppel. 
 
 The plaintiff filed his biU to compel the 
 defendants to indemnify him in respect 
 to a mortgage made by him upon certain 
 land which he had conveyed to them sub- 
 ject to the mortgage, under the following 
 circumstances:— ^ 
 
 -Plaintiff, being indebted to the defend- 
 ants in a sum of about $16,000, executed 
 a bill of sale to them of a large amount of ' 
 personal property. This bill of sale con- 
 tained a recital that the plaintiff had 
 contracted and ^agreed with the defendants 
 for the absolute sale to them of the same 
 and of the equity of redemption in the 
 land in question granted by him to them 
 by deed of eveii date, in consideration of 
 the release by the defendants from his 
 indebtedness -to tJiem; and on the same 
 day the plaintiff executed a conveyance of 
 his equity of redemption in the lands 
 mentioned to two of the defendants for 
 the expressed consideration of $1,000. 
 
 The Chief Justice, who had heard the 
 cause, found upon the evidence that there 
 was no verbal agreement to indemnify the 
 plaintiff against the mortgage referred to, 
 and that the defendants had not pur- 
 chased the lands in the ordinary sense of 
 that word, but had merely taken the con- 
 veyance of the equity of redemption as 
 security, intending to make good to plain- 
 tiff any surplus which they might realize 
 out of the property transferred to them, 
 and at the same time to release the plain- 
 tiff from all his liabilities to them. 
 
 Held, that, imder such circumstances, 
 there being no expressed stipulation on 
 the subject, the right to indemnity arises 
 from the sale of the incumbered land and 
 not from the mere conveyance; and that 
 such right does not arise whei-e a con- 
 veyance is taken merely as security for a 
 debt, and the grantee does not go into 
 possession and receipt of the profits of the 
 land; and that it is only as between a real 
 vendor and _ a real purchaser, ' in the 
 ordinary sense of the words, that such 
 right of indemnity arises. 
 . Held, also, that defendants were not 
 estopped by the" recital in the bill of sale 
 from denying the fact of their having 
 purchased the property, and that such a 
 recital does not operate as, an estoppel 
 unless in an action directly founded on the 
 instrument containing the recital or in one 
 which is brought to enforce the' rights 
 arising out of such instrument. Fullerton 
 V. Brydgis, 10 M.R. 431. 
 
 See Gaknishmbnt, IV, 2. 
 
 — Gttaeanty, 1. • 
 
 —^ Mortgagor and Mortgagee, VI, 6, 8. 
 
 — Practice, XXVIII, 13. 
 
 — Rectification OF Deed, 1. 
 
 — Right of Action. 
 
 — Vendor and Pttrchasbr, III, 1. 
 
 INDEPENDENT ADVICE. 
 
 See Alimony, 6. 
 
 — Deed of Settlement. 
 
 — Undue Influence. 
 
 INDIAN ACT. 
 
 See Criminal Law, XVI, 4. 
 
 INDIAN AGENT. 
 
 See Criminal Law, XVI, 4. 
 
 INDIANS. 
 
 1. Indian Act, R.S.C. 1906, c. 81, s. 
 
 102 — British North America Act, s. 91, 
 s-s. 2^— Estoppel Act, R.S.M. 1902, c. 
 56 — Vendors' lien — Dismissal of petition 
 foUowing caveat under the Real Property 
 Act. ' 
 
653 
 
 INDICTABLE OFFENCES. 
 
 5^ 
 
 Indians in Canada are British subjects 
 and entitled to all the rights and privileges 
 of such, except so far as those rights are 
 restricted by statute, and, notwithstand- 
 ing sub-section (24) of section 91 of the 
 British North America Act, 1867, they 
 are subject to all provincial laws which 
 the Province has power to enact: Reg. 
 ex rel. Cfibb v. White, 5 P.R. 315, and 
 Rex V. HUl, (1907) IS O.L.R. 410. 
 
 An Indian has the same right to sell or 
 dispose of land which has been allotted 
 to him by the Dominion Government as 
 his own individual property as any other 
 British subject has and neither section 
 102 of the Indian Act, R.S.C. 1906, c. 
 81, which prevents any person acquiring 
 any lien or charge on real property of an 
 Indian not subject to taxes under the 
 last three preceding- sections, nor any 
 other provision of the Act imposes any 
 restriction on the right of selling outright 
 any of his individual property. 
 
 Totten v. Watson, (1858) 15 U.C.R. 
 392, followed. 
 
 The Estoppel Act, R.S.M. 1902, c. 56, 
 applies to conveyances made by liidians 
 as well as others, and, where an Indian 
 has given a deed of his land with the 
 covenants mentioned in that Act, the 
 subsequent issue of the Crown patent to 
 him vests^the title in the grantee in fee 
 sfmple. 
 
 Dismissal of petition following caveat 
 under the Real Property Act delayed to 
 enable petitioners to take prceedings to 
 establish a vendor's lien for unpaid pur- 
 chase money under prayer- for general 
 relief. Sanderson v. Heap, 19 M.R. 122. 
 
 2. Mortgage on land in reserve — 
 
 Ejectment thereon. 
 
 A. mortgage made by an Indian living 
 on a reserve of land in the reserve is void, 
 and judgment in ejectment recovered 
 thereon is also void, and a sheriff is not 
 bound to execute a writ issued thereon. 
 Black V. Kennedy, T. W., 144. 
 
 INDORSEMENT. 
 
 See Bills and Notes, VIII, 10. 
 
 INDICTABLE OFFENCE. 
 
 See SoLiciTOK, 2, 6. 
 
 INDICTMENT. 
 
 See Criminal Law, IV, 1; VI, 4; VII, 1, 
 2; X, 1; XI. 
 
 — Cbiminal Peocbdtjre, 1. 
 
 — Municipality, IV, 1. 
 
 INFANT. 
 
 1. Agreement to purchase land— 
 
 Specific performance — Damages in lieu of— 
 Agent. 
 
 1. The appointment by an infant of an 
 agent to act for him is not void but only 
 voidable if it is to his advantage, and an 
 infant may elect to ratify and take ad- 
 vantage of a contract entered into by an 
 agent for him and the Court will, in the 
 exercise of its equitable jurisdiction, 
 assist the infant in enforcing his rights. 
 
 2. An infant can purchase land and 
 enforce the contract against the vendor, 
 at least to the extent of recovering 
 damages against the vendor for breach of 
 
 Warwick v. Bruce, (1813) 2 M. & Sel. 
 205, followed. 
 
 3. The fact that the statement of claim 
 asks for specific performance of a contract 
 of sale, when specific, performance cannot 
 be granted, does not bar the plaintiff 
 from recovering damages for breach of 
 the contract, when these are also claimed 
 in the alternative. 
 
 Hipgraxe v. Case, (1885) 28 Ch. D. 
 356, distinguished. Johannson v. Chtd- 
 mundson, 19 M.R. 83. 
 
 2. Avoidance of contract made by — 
 
 Repudiation during infancy — Conditct after 
 attaining majority — Action to rescind con- 
 tract — Laches — Failure to return or offer to 
 return money received under contract — 
 Non-suit without prejudice to subsequent 
 action. 
 
 The repudiation by an infant during 
 infancy of a contract previously entered 
 into wiU have the same effect as such 
 repudiation would have if made after 
 attaining majority, provided nothing is 
 done since attaining majority to ratify 
 the contract, and a delay of 17 months in 
 commencing an action to rescind should 
 not be treated as a ratification. 
 
 The plaintiff in such an action, however, 
 to whom during infancy the greater part 
 of the consideration for the contract has 
 been paid, should return or offer to return 
 the money received with interest and, if 
 this has not been done, a non-suit should 
 be entered, without prejudice to the 
 bringing of another action. 
 
 PhilMps v. Sutherland, 15 W.L.R. 594, 
 22 M.R. 491. 
 
555 
 
 INFANT. 
 
 656 
 
 3. Custody of — Habeas Corpus — Ap- 
 plication by father for citstody of child — 
 Misconduct— -Onm of establishing. 
 
 It is prima facie the right of a father to 
 have the custody of his infant child, and 
 the care of its education and bringing up. 
 '^The onus of proving him unfit for such 
 a, charge rests upon the person who seeks 
 ' to take the child away, or to keep it 
 away from him. 
 
 The Court is always unwiUing to inter- 
 fere with the Common Law rights of the 
 father. 
 
 That the conduct of a husband is such 
 that his wife cannot live happily with 
 him, is not a sufficient cause for inter- 
 fering with his right to the custody of 
 the children. Be Foulds, 9 M.R. 23. 
 
 4. Custody ot— Right of mother of 
 illegitimate child to his custody. 
 
 Although the mbther of an illegitimate 
 child has prima facie a right to his custody, 
 notwithstanding any agreement she may 
 have made to the contrary, yet the Court 
 has a, discretion to refuse to accede to her 
 wishes if it is shown or appears to be 
 likely that it would be dptrimental to the 
 best interests of the chUd to return him to 
 her control. 
 
 Under the circumstances, set forth in 
 the judgment, it was held that such 
 discretion should be exercised by leaving 
 the child where the mother had originally 
 placed him. , 
 
 Reg. V. Nash, (1883) 10 Q.B.D. 454, 
 and Barnardo v. McHugh, [1891] A.C. 
 388, followed. Re Slater, 14 M.R. 523. 
 
 6.' Custody of — Contest between father 
 and mother — Infants' Act, R.S.M. 1902, 
 c. 79, s. 3? — Habeas corpus — Conditions 
 attached to order. 
 
 Application by the father for the custody 
 of two children, aged seven and five 
 respectively, who had been brought into 
 Court by their mother under a writ of 
 habeas corpus. The evidence showed, in 
 the opinion of the Judge, that it was more 
 in the interest of the children that they 
 should remain with their mother thajKthat 
 the father should have the custody of 
 them. 
 
 Held, that, xmder section 32 of the 
 Infants' Act, R.S.M. 1902, c. 79, an order 
 should, under the circumstances of this 
 case, be made for the delivery of the 
 children into the sole custody of the 
 
 motherf notwithstanding the prima fade 
 Common Law right of the father. 
 
 Re Foulds, (1893>9 M.R. 23, referred to. 
 
 Conditions attached that, without leave 
 of^ a Judge, the children should not be 
 removed from the Province, and that they 
 should not be taken out oi the City of 
 Winnipeg without the father being kept 
 informed of their whereabouts. 
 
 Liberty to the father to apply again in 
 any way in the matter, should he desire to 
 do so, because of circumstances arising 
 hereafter. Re Tomlinson, 21 M.R. 7SQ. 
 
 6. Decree against infants — Reserving 
 a day for infants to show cause. 
 
 Held, a decree against infants should 
 not reserve a day to show cause after they 
 come of age . Scottish, M anitoba 1 nveslment 
 (^ RealEstateCo. y.Bkmchard, 2 M.R. 154. 
 
 7. Gift — Money received by defendant to 
 the use of the plaintiff — Presumption in case 
 of money transaction between man and 
 woman living together in adultery — Plead- 
 ing. 
 
 Action for money received by defendant 
 for the use of the plaintiff. Haintiff, an 
 infant, and defendant hved together as 
 wife and husband, though not married. 
 PlaintiS handed to defendant various 
 sums of money obtained by prostitution 
 while they were thus hving together. Part, 
 of this money defendant used in purchas- " 
 ing an interest in a fiotel property. 
 
 Defendant simply denied the allegation 
 in the statement of claim. 
 
 Held, 1 There was no presumption of 
 a gift imder the circumstances, and, as the 
 defendant had set up no other d^ence 
 than a denial of the debt, the plaintiff was 
 entitled_to judgment. 
 
 "2 Plaintiff was entitled to a charge and 
 lien on defendant's interest in the hotel 
 property for the money and costs and to 
 ha-\»e the same sold to satisfy her claim. 
 Desaulniers v. Johnston, 20 M.R. 64. 
 
 Appeal dismissed, 46 S.C.R. 620. 
 
 8. Maintenance of, action for — No 
 
 formal promise to pay— Request — Implied 
 agreement. 
 
 Action for maintenance of infant. 
 Defendant's wife having died, defendant 
 requested plaintiff's wife to take charge 
 of the child, which she did for over three 
 years, when the child was returned to her 
 father. There was no formal promise by 
 the defendant to pay for the keeping of 
 the child. 
 
557 
 
 IN FORMA PAUPERIS. 
 
 558 
 
 Held, that, if there was no formal 
 promise to pay by the defendant, there 
 was no formal promise to keep the child 
 without remimeration and, as there, was 
 a request, an agreement to pay should be 
 imphed. 
 J . Per KiLiiAM, J. — The mere fact of the 
 rnaintenance by one person of the child 
 of another does not imply a contract to 
 pay for such- maintenance. 
 
 Per Bain, J. — Apart from contract, a 
 father is under no obMgation, that can be 
 enforced in a civil action, to support his 
 children. Munro v. Irvine, 9 M.R. 121. 
 
 But see now R.S.M. 1902, c. 107, s. 8. 
 
 9. Maintenance of children by 
 father. 
 
 Held, 1. A father cannot, except under 
 Con. Stat. Man., c. 39, s. 11,'be ordered to 
 pay a sum for maintenance of his child in 
 another's custody. ' 
 
 2. A decree cannot be made against a 
 father for past maintenance of his children, 
 although payments might be made for that 
 purpose out of funds of infants in court. 
 Wood V. Wood, 2 M.R. 198. 
 
 10. Guardian or next friend — County 
 Court. 
 
 Although an infant may, perhaps, sue 
 in the County Court and have a transcript 
 of the judgment filed in the Queen's 
 Bench, without a guardian or next friend 
 being appointed; yet he cannot obtain an 
 NDrder to examine the defendant as a judg- 
 ment debtor in the Queen's Bench without 
 a guardian or next friend. Becker v. Mc- 
 Donald, 5 M.R. 223. 
 
 11. Next friend — Staying proceedings — 
 Delay in making application. 
 
 Where an order is made for the trial of 
 an interpleader issue between an infant 
 claimant as plaintiff and an execution 
 ■ creditor, and the plaintiff in the issue 
 desires to proceed, a next friend should be 
 appointed, and proceedings wiU be stayed 
 on application of the defendant in the 
 issue until such appointment is made. 
 
 The infant qlaimant had imsuccessfully 
 , appealed to the Full Courts against the 
 interpleader order, and no appUoation for 
 the appointment of a next friend had been 
 made until after the service of the issue 
 under the interpleader order. 
 
 Held, that the present application was 
 not too late, as it was not necessary that 
 a next friend should be appointed to act 
 
 for the infant before the present stage of 
 the interpleader proceedings. 
 
 Campiell v. Mathewson, 5 P.R. 91; 
 Grady v. Hunt, 3 Ir.C.L. 525, followed. 
 Orant v. McKay, 10 M.R. 243. 
 
 12. Permission to sue' by next friend 
 in forma pauperis — Practice. 
 
 An infant cannot sue in forma pauperis 
 by next friend, unless it is shown that he 
 cannot jjrocure as next friend a person 
 who is wilUng to assume responsibihty for 
 costs, and unless the proposed next friend 
 is also a pauper. 
 
 lAndsey v. Tyrell, 24 Beav. 124, followed. 
 The Court -wiU not appoint the oflBcial 
 guardian of infants to bring an action as 
 next friend of a pauper infant without his 
 consent to assume the ordinary responsi- 
 bility attaching to- that position. Be 
 . Sturgeon, 20 M.R. 284. 
 
 13. Registered judgment against in- 
 fant will bind his lands. 
 
 Section 3 of The Judgments Act, R.S.M. 
 1902, c. 91, making a registered judgment 
 a lien and charge upon the lands of the 
 judgment debtor "the same as though 
 charged in writing under his hand and 
 > seal," must be read as implying such a 
 charge as an adult could create, so that 
 an infant's lands will be bound by the 
 registration of a certificate of judgment 
 against him in the same way as those of 
 an adult. McDoicgall v. Gagnon, 3 W.L.^ 
 R. 387. ^ 
 
 See Half- Breeds Lands Act, 2, 3. 
 
 — Negligence, VII, 2. 
 ^ Partnership, 8. 
 
 — • Practice, XX, B, 5. 
 
 — Will, I, 1; III, 1. 
 
 IN FORMA PAUPERIS. 
 
 See Infant, 12. 
 
 INFORMATION. 
 
 See Criminal Lfw, I, 1, 2; VII, 2: 
 XVII, 18. 
 
 — Extradition, 8. 
 
 — Ltqttor License Act, 7, 8, 10. 
 
 — Prohibition, III, 2. 
 
559 
 
 INFORMATION TO RESTRAIN NUISANCE. 
 
 560 
 
 INFORMATION TO RESTRAIN 
 NUISANCE. 
 
 Highway — Dominion or Provincial At- 
 torney-General — Demurrer — Multifarious- 
 ness. 
 
 Held, 1. There is no rule on the subject 
 of multifatiousness of universal appUca/- 
 tion. Each case must be decided by a 
 consideration of what will be convenient 
 under its particular circumstances. 
 
 2. Although defendants have several and 
 distinct rights, a demurrer for multifari- 
 ousness may not lie. 
 
 3. Where an information was filed to 
 remove obstructions to two intersecting 
 streets against W., who owned the corner 
 lot, and his lessees and mortgagee, some 
 of whom were interested in one frontage 
 and some in the other, a demurrer for 
 multifariousness was overruled. 
 
 4. The Attorney-General for the Prov- 
 ince is the proper informant in a suit to 
 restrain the obstruction of highways. 
 
 5. It is not necessary that an informa- 
 tion should disclose an interest in the 
 relator. If the relator be also plaintiff he ' 
 must have an interest. Attomey-Oeneral 
 V. Wright, 3 M.R. 197. 
 
 INJUNCTION. 
 
 I. To Restrain VAHiotrs Acts. 
 
 II. Against Breach of Contract'. 
 
 III. ExPARTE Injunctions. 
 
 rV. Other Cases. 
 
 L To Restrain Various Acts. 
 
 1. Blasting operations on adjoining 
 land — Evideme in reply going to strengthen 
 the original case — N cm-disclosure of man 
 terial facts on application for injunction — 
 Offer to accept bond as security against 
 damages — Costs. ^ 
 
 1. When evidence is given to the satis- 
 faction of the Judge that there is a strong 
 probability of injury to the plaintiffs' 
 building by the continuance of blasting 
 operations for the loosening of frozen 
 earth on adjoining land, it is proper, on 
 motion to continue an ex parte injunction, 
 to grant an interlocutory injunction 
 restraining the contractor until the hear- 
 ing of the action from carrying on such 
 blastings in such a manner as to injure .the 
 plaintiffs' building, although there is no 
 proof that any actual injury to , such 
 building has already resulted. 
 
 Fletcher v. Beaky, (1885) 28 Ch.D. 688, 
 and Atty.-Gen. v. Manchester, [1393] 2 
 Ch. 87, foEowed. 
 
 2..There is a discretion in'the Judge on 
 the hearing of such a motion to allow 
 affidavits in reply which contain state- 
 ments going merely to strengthen the 
 original case; and, when an opportunity 
 is given to the defence to answer the 
 affidavits in reply, the FuU Court on 
 appeal will not interfere with such dis- 
 cretion. 
 
 Peacock v. Harper, (1887) 7 Ch.D. 648, 
 followed. 
 
 3. The non-disclosure of material facts 
 on the application for an ex parte injunc- 
 tion for a limited time, although a ground 
 for discharging it,~will not necessarily dis- 
 entitle the plaintiffs to succeed on a 
 motion to continue the ejqjiring injunction 
 when both sides present their cases fuUy, 
 and the Court is not bound to s^efcifically 
 discharge the interim injunction or to 
 award costs to the defendants. 
 
 4. An offer or suggestion on the part of 
 the plaintiffs, before_ commencing the 
 action, to accept a T)dnd to secure them 
 against damages caused by the operations 
 complained of, even if distinctly proved, 
 would not necessarily preclude them from 
 claiming an injunction afterwards, though 
 it would be a fact to be .taken into con- 
 sideration in determining whether a 
 remedy by action for damages would not 
 be adequate.' 
 
 Woody. Svicliffe, (1851) 2 Sim.N.S. 168, 
 distinguished. 
 
 5. The appeal ;having failed, the appel- 
 ant-^as ordered, to pay the costs of the 
 appeal upon the final disposition of the 
 cause in any event of it. Miller v. Camp- 
 bell, 14 M.R. 437. 
 
 2. Construction of railway crossing 
 
 — Fear of riot — Construction of statutes — 
 Railway crossings — Constitutional law. 
 
 The fact that the plaintiff will by force 
 oppose a threatened tresjiass, and so 
 possibly cause bloodshed, is no reason 
 why the Court should grant an inter- 
 locutory application, if he is not otherwise 
 entitled to it. 
 
 The Act incorporating the Northern 
 Pacific and Manitoba Railway Company 
 does not, of itself, supersede the power 
 given to the Railway Commissioner by 
 51 Vic, c. 5, with reference to the building 
 of the extension of the Red River Valley 
 Railway to Portage la Prairie. 
 
 An ex parte injunction having been dis- 
 solved on the ground that the questions 
 
561 
 
 INJUNCTION. 
 
 562 
 
 involved were of such- difficulty that they 
 should be decided at the hearing only, the 
 biU was amended , and a pew. ea; parte 
 injunction granted. Upon Tilotion to 
 continue it, 
 
 Held, that the plaintiffs were entitled 
 to have a fuU consideration of a;ll the 
 questionsjnvolved; and, a more deliberate 
 argument having solved the difficulties, 
 the injunction was continued. 
 
 The Dominion Parliament has power to 
 provide that no Provincial railway shall 
 cross a Dominion railway without making 
 application to the Railway Committee of 
 the Privy Council for Canada. 
 
 A statute provided that a certain thing 
 should not be done "without apphcation 
 to the Railway Committee for approval of 
 the place and mode," etc. 
 
 Held, that the Act required that the 
 approval should be obtained and not 
 merely apphed for. 
 
 The Railway Commissioner for Mani- 
 toba is a "person," and may be enjoined 
 from prosecuting the construction of a 
 raEway. - Attorney-General v. Ryan, 
 
 5 M. R. 81, followed. C. P. R. v ^. P. 
 
 6 Man. Ry.Co., 5 M.R. 301. 
 
 3. Construction of subway under 
 railway tracks along highway — Privi- 
 lege to raise- grade of highway "or any part 
 thereof" — Railway Commission, jurisdic- 
 tion of — Interim injunction affirmed on 
 appeal, effect of. 
 
 For manjf years the defendants, by 
 agreement with the City of Winnipeg, had 
 occupied a portion of the width of Point 
 Douglas Avenue in said City with the 
 tracks of its main Uhe. In 1904 a further 
 agreement was made between the City and 
 thejOompany, and ratified by the Legis- 
 lature, whereby the Company obtained 
 the right to raise the .grade of Point . 
 Douglas Avenue or of any part thereof to 
 a height not exceeding ten feet above the 
 then existing grade upon certain con- 
 ditions. 
 
 Held, that the words "or of any part 
 thereof" related to a part of the breadth 
 as well as of the length of the avenue, 
 and that the defendants had a right to 
 raise the grade of the southerly 45 feet in 
 width of the avenue leaving 21 feet at its 
 original height, although the result of that 
 was to dijninish the value of the plaintiff's 
 lots on account of the , construction of a 
 subway alongside of them. 
 
 Held, also, that an order of the Board 
 of Railway Commissioners granting leave 
 to the delendants to construct such sub- 
 
 ■ way was vaMd and binding, although it had 
 been made ex parte and in ignorance of the 
 fact that _ the plaintifif had previously 
 obtained an interim injunction against 
 such construction, the plaintiff having 
 made no application to rescind or vary the 
 order as he might have done. 
 
 C. P. R. V. G. T. R., (1906) 12 O.L.R. 
 320, followed. 
 
 The interim injunction granted in 1905 
 had been affirmed on appeal before the 
 hearing of the cause. 
 
 Held, that that decision was not binding- 
 on the trial Judge and did not divest him 
 of the responsibility of deciding the case 
 upon the merits at the hearing. Fraser v. 
 C. P. R., 17 M.R. 667. 
 
 4. Dredging of sand from bed of 
 river causing subsidence of bank. 
 
 Inconvenience to the public cannot be 
 set up as against private rights and, where 
 it is shown that the removal of sand from 
 the bed of a river opposite the plaintiff's 
 property has caused a subsidence of the 
 bank and, if continued, is likely to cause 
 irreparable damage, an injunction should 
 be granted to stop the dredging, notwith- 
 standing affidavits showing that contrac- 
 tors and the pubhc would suffer loss and 
 inconvenience if the sand could no longer 
 be produced from that source for building 
 purposes. Patton v. Pioneer Navigation 
 & Hand Co., 16 M. K. 435. 
 
 5. Dredging sand out of bed of 
 navigable river causing subsidence of 
 banks — Riparian owner — Ownership of 
 bed of nonAidal navigable stream. 
 
 An injunction should be granted to 
 prevent the continuance of the dredging 
 of sand from the bed of a navigable 
 river opposite or near the plaintiff's 
 property on its bank, if it is shown that 
 there is a real danger of the bank being 
 worn away by such continuance, although 
 the greater portion of the sand previously 
 taken ^ut bad been carried down the 
 river- by the current and it is not proved ■ 
 that the dredging- already done had 
 caused any subsidence of the bank. 
 
 The plaintiff's patent from the Crown 
 described his land as a portion of a parish 
 lot as shown on a plan of survey of the 
 Parish of St. Boniface. According to the 
 plan referred to the parish lots run only 
 to the "Assiniboine River, but the patent 
 contained a reservation of the free use, 
 passage and enjoyment of, in, over and 
 upon all navigable water, etc.,. and it was 
 
563 
 
 INJUNCTION. 
 
 56i 
 
 not disputed that that river, at the place 
 in question, is a navigable stream. 
 
 Held, that by the laws of England the 
 title to the bed of a non-tidal navigable 
 river is presumed to be in the riparian 
 owner ad medium filum aquoe, that the 
 reservation in the - plaintiff's patent 
 afforded a strong: presumption of non- 
 ownership by the Crown in 'the soil 
 underneath the river, and that the plaint- 
 iff's title carried with it aU the rights of 
 a riparian owner, so that the plaintiff 
 owned the bed of the river to the middle 
 as claimed. 
 
 Bickett V. Morris, (1866) L.R. 1 H.L. 
 Sc. 47; Keewatin Power Co. v. Town of 
 Kenora, (1908) 16 O.L.R. 184, and Servos 
 V. Stewart, (1907) 15 O.L.R. 216, followed. 
 Paiton V. Pioneer Navigaiion & Sand Co., 
 21 M. R. 405. 
 
 6. Illegal acts of strikers — Trade 
 combination. 
 
 An interim injunction restraining de- 
 fendants (striking plumbers) from inter- 
 fering in any manner with the non-striking 
 ' workmen employed by plaintiffs (master 
 plumbers) should be continued to the 
 hearing, if the aflBdavits show that the 
 defendants have endeavored to induce the 
 employees of the plaintiffs to break their 
 contracts with them and have entered 
 into a conspiracy and combination to 
 induce such employees to leave the 
 plaintiffs' employ, and to prevent other 
 workmen from entering into such employ- 
 ment, and have aimoyed some of the 
 plaintiffs' workmen who did not join the 
 strike. Such an injunction, however, 
 should contain the words, "except for the 
 purpose of obtaining and communicating 
 information," in the clause forbidding 
 generally the besetting of the plaintiffs' 
 premises. Cotter v. Osborne, 16 M.R. 
 395. 
 
 7. Levy of illegal tax by municipality 
 
 — Interim injunction — Other adequate r&m- 
 edy. • 
 
 A party who brings an action against 
 a municipality for a declaration that he is 
 not hable for a tax imposed upon him, 
 and for an injunction to restrain the 
 attempted levy of such tax, is not entitled 
 > to an interim injunction to restrain such 
 levy, as he has another adeqiiate remedy, 
 namely, to pay the tax under protest and 
 sue to recover it back. 
 
 Dows v. City of Chicago, (1870) 11 
 Wall. 108; United Lines Telegraph Co. v. 
 
 Grant, (1873) 137 N.Y. 7, and C.P.R. v. 
 Cornwallis, (1890) 7 M.R. 1, followed. 
 ; Central Vermont Bfdlway Co. v. St 
 Johns, (1887) 14 S.C.R. 288, distinguished. 
 Dominion Express Co. v. City of Brandon, 
 19 M.R. 257.1 
 
 8. Payment of life insurance to 
 executor — Execvior — Foreign Assets — 
 Multifariousness. 
 
 An injunction will not be ordered to 
 restrain a foreign life insurance company 
 from paying the amount assured to an 
 executor here, when the policy was issued 
 in the foreign country, the premium pay- 
 able there, the moneys assured payable 
 there, and the company was not carrying 
 on business here. - 
 
 A biU is not multifarious which prays 
 administration of an estate and also the 
 cancellation of an assignment made by 
 the executor of a portion of the estg,te to 
 some of the defendants. Cole y.^ Glover, 
 16 Gr. 392, not followed. Frontenac Loan 
 & Sap. Co. V. Monce, 3 M.R. 21. 
 
 9. Threatened trespass. 
 
 The plaintiff claimed to.be tenant of 
 the defendant B. of certain lands upon 
 which he sowed a crop of wheat. De- 
 fendants threatened to reap the crop, 
 whereupon the plaintiff filed a-teill for an 
 injunction. During the suit the defend- 
 ants did harvest a portion of the crop, 
 but did not - otherwise interfere with 
 plaintiff's occupation. The plaintiff's 
 right was not very clearly established by 
 the evidence. 
 
 Held, Injunction refused, but without 
 costs. Monkman v. Babington, 5 M.R. 
 253. 
 
 10. Trespass by railway — Plaintiff a 
 puppet-^Signification of disallowance. 
 
 Ad Act wgs passed by the Provincial 
 Legislature providing for the construction 
 of the Red River Valley Railway. In 
 pursuance of this Act a contract was 
 entered into between Her Majesty and 
 two of the defendants, and the contractors 
 thereupon proceeded to build the road. 
 
 This Act was disallowed as was also an 
 Afit extending, the operation of The Public 
 Works Act of 1885. 
 
 -The plaintiff, being aware that the route 
 contemplated would cross certain lands, 
 purchased them with a view of obstructing 
 ,the building of the road. It was not con- 
 tended that this would disentitle him to 
 an injunction, but it was alleged "that he 
 was acting not for himself but in reality 
 
565 
 
 INJUNCTION. 
 
 566 
 
 for a rival railway whose hand he was. 
 To show' this, the plaintiff was examined 
 and he refused to answer several proper 
 and material questions. He appeared to 
 have acted through the rival railway's, 
 officials and to have reported progress to 
 them; to have made some agreement with 
 that company, giving to it certain privi- 
 leges in respect of the land purchased, but 
 the nature of this agreement he refused to 
 divulge; and in a letter he referred to 
 "the party for whom I have purchased." 
 HeU, 1. That after the disallowance the 
 defendants were without merits or legal 
 righjs — ^The Public Works Act (without 
 the disallowed amendment) not giving the 
 right to expropriate lands for tjj6 purpoie 
 of the railway. 
 
 2. That nevertheless the plaintiff was 
 not entitled to an injunction, he being the 
 representative merely of the rival railway 
 and not acting on his own behalf. 
 
 3. That to arrive at this conclusion it 
 was proper to assume, as against the plain- 
 tiff, the answers he could have given, if he 
 had answered fairly the questions put to 
 him. ' 
 
 The disallowance of the Acts was signi- 
 fied by proclamation in the Gazette, but 
 no reference was therein made to the 
 certificate of the date of the receipt of the 
 Acts. 
 
 Senible, that the certifiqate need not be 
 signified, but the disallowance only. 
 Browning v. Ryan, 4 M.R. 486. , 
 
 II. Against Bheach op Contract. 
 
 1. Breach of contract to sell bricks 
 to plaintiff only — Remedy by action for 
 
 Appeals from orders restraining defend- 
 ants until the trial from delivering bricks 
 manufactured by them except in accord- 
 ance with the terms of a contract between 
 the plaintiff and the defendants and other 
 brick manufacturers who had severally 
 agreed to sell to the plaintiff the outputs 
 of their respective brickyards for the 
 present season and not to sell any of such 
 bricks to any one else. 
 
 The contract recited that the plaintiff, 
 in conjunction with others, was forming a 
 company to be incorporatTed and that the 
 plaintiff was desirous of purchasing the 
 bricks for the benefit of the proposed com- 
 pany, and set, out the intention of the 
 plaintiff to assign aU his interest in the 
 contract to the company upon its incor- 
 poration, and stipulated that, oipon such 
 
 assignment, the company should be sub- 
 stituted for the plaintiff in the contrapt; 
 and the evidence showe4 that the defend- 
 ants did not intend to enter into such an 
 agreement for the benefit of the plaintiff 
 and Ihis associates personally, but that the 
 formation of the company and its interests 
 in the proposed purchases were material 
 parts of thp arrangements. , 
 
 The orders had been only formally 
 made, without argument, to facihtate the 
 appeals, upon the understanding between 
 counsel for all parties and the Court that 
 they were not to be taken as made in the 
 exercise of a judicial discretion, but were 
 io be fuUy open to appeal on all points, as 
 it was admitted that the trials of the 
 actions could not, in the ordinary course, 
 take place till after a great part of the 
 brick-making season would have elapsed 
 and the continuance of the injunctions 
 would have been equivalent to granting 
 orders for actual specific performance of 
 the contract during that period. 
 
 The statement of claim in each case 
 alleged that, relying upon the contract 
 and upon the supply of bricks under it, 
 the plaintiff, together with others, entered 
 into a number of building contracts 
 requiring the use of bricks, that the plain- 
 tiff would require for the purposes of his 
 business during the present year all the 
 bricks called for by the said contract, that 
 the plaintiff and the said company were 
 tendering for and expected to obtain a 
 large number of other building contracts 
 requiring bricks, that the plaintiff expected 
 to sell bricks to other builders at a profit, 
 and that, unless the defendants suppUed 
 the bricks called for by the contract, it 
 would be impossible for the plaintiff to get 
 bricks in time to carry out these contracts, 
 or to complete the works in the manner 
 and within the time mentioned in said con- 
 tracts. 
 
 The evidence adduced supported these 
 statements in the main, but did not show 
 that the contracts referred to had been 
 made for the benefit or on behalf of the 
 company or that the company had 
 acquired any interest or incurred any lia- 
 bility in respect of them. 
 
 Held, that the plaintiff should, under 
 the circumstances, be left to his claim for 
 damages, if any, arising from the alleged 
 breach of the contract, and that the 
 injunctions should b.e dissolved. 
 
 Appe.>ds allowed. Costs reserved. Cass 
 v. Couture, Cass v. McCutcheon, 14 M.R. 
 458. 
 
567 
 
 INJUNCTION. 
 
 2. Breach of contract to accept and 
 exclusively use plaintifE's goods. 
 
 A contract entered into by the pro- 
 prietor of a country newspaper to accept 
 and use exclusively fevery vfs6i^ the 
 "ready prints" furnished by a Hubliisher 
 may be enforced by an injunction Restrain- 
 ing the defendant during the period covered 
 by it from using or publishmg any ready 
 prints except. those published by the plain- 
 tiff, who should not be limited to. the 
 recovery of damages for the breach of the 
 contract. 
 
 Metropolitan Ehctric Co. v. Ginder, 
 [1901] 2 Ch. 799, followed. 
 
 Whitwood Chemical Co. v. Hardman,. 
 [1891] 2 Ch. 417, distinguished. Winnipeg 
 Saturday Post v. Couzens, 21 M.R. 562. 
 
 III. ExPARTE Injunctions. 
 
 1. On appeal after refusal by single 
 Judge. 
 
 A motion for injunction to restrain a 
 sheriff's sale was refusedby a single Judge 
 after argument. Upon motion ex parte 
 to the Full Court, the plaintiff's counsel 
 stating his intention to- atppeal, an in- 
 junction was granted until the re-hearing 
 of the order or the hearing of the cause, 
 whichever should first come on. Lewis v. 
 Wood, 2 M.R. 73. 
 
 2. Mandatory Injunction — IrUerim 
 injunction. 
 
 On a motion ex parte for an injunction 
 all facts within the knowledge of the 
 applicant and material to the appUcation 
 ihust be disclosed. 
 
 This was a mortgage suit and for an 
 injunction to compel the defendants, who 
 had removed buildings from the land, to 
 restore them to their former fouiidations. 
 An ex parte injunction to restrain further 
 removal had been obtained, and a motion 
 was now made to continue this injunction 
 - and for a mandatory injunction to restore 
 the buildings removed. 
 
 The injunction was continued until the 
 hearing but, as it remained to be decided 
 whether or not the buildings formed part 
 of the mortgage security, a mandatory 
 injunction to restore them to their former 
 foundations was refused in the meantime. 
 Stewart v. Turpin, 1 M.R. 323. 
 
 3. Misrepresentation of facts. , 
 
 Upon a motion to continue an ex parte 
 injunction it was objected that the Com-t 
 had been misled <(rhen granting the 
 same. 
 
 KiLLAM, J., said: "Nothing is of more 
 importance than that a party obtaining 
 an ex parte order for an injunction should 
 deal with the utmost fairness and frank- 
 ness with the Court; and, if -it were shown 
 that a paxty did so upon a false statement 
 of information of a material fact, I should 
 not hesitate to refuse to continue it, and 
 to leave him in the position in which he 
 was before getting the order, even though 
 he showed other grounds sufficient to 
 warrant its being continued." Burbank 
 V. Webb. 5 M.R. 264. 
 
 4. Misrepresentation in obtaining— 
 
 Balance .^ convenience — Costs — Laches — 
 Variance m charges of fraud. 
 
 An ex parte order for an injunction to 
 last for a few da,ys, and until a, motion to 
 continue it. had been disposed of, was 
 obtained upon a jnisstatement of a fact 
 material to one "of ' the grounds upon 
 which, in the bill, the plaintiff's right was 
 founded. , Upon an application to con- 
 tinue the injunction, 
 
 Held, that, having in view the great 
 importance to the plaintiff of maintaining 
 the status tjao and the absence of damage 
 to the drfendant, the injunction might be 
 continued, notwithstanding the misstate- 
 ment in respect of a portion of the property 
 in question upon an equitable grouffid not _ 
 affected by the fact misstated; but the 
 plaintiff was ordered to pay the costs of 
 the motion. Bjj,rbank v. Webb, 5 M.R. 
 264, considered. 
 
 Laches as disentitling to interim in- 
 junction discussed. 
 
 Variance between misrepresentations 
 as alleged and proved discussed. Winni- 
 peg and Hudson's Bay Co. v. Mann, 6 M. 
 R. 409. 
 
 . IV. Oiiher' Cases. 
 
 1. Breach of injunction — Costs of 
 motion to commit. 
 
 Although there may not have been 
 such a wilful or contemptuous breach of 
 an injunction as may call for punishment 
 by committal, yet, where the defendant 
 by his conduct invited the application to 
 commit, he was ordered to pay the costs 
 of the motion. Hardie v. Lavery, 5 M.R. 
 134. 
 
 2. Other adequate remedy— LocaZ op- 
 tion by-law — LAquor License Act,,B.S.M. 
 1902, c. 101, Si f,^— Failure to publish 
 notice. 
 
669 
 
 INJUNCTION. 
 
 570 
 
 The failure to publish the notice of the 
 voting on a local option by-law required 
 by section 66 of The Liquor License Act, 
 R.S.lVl. 1902, c. 66, is good ground for an 
 application under section 427 of the 
 Municipal Act to quash the by-law if 
 afterwards carried and passed by the 
 council at the third reading: Hall v. 
 South Norfolk, (1892) 8 M.R. 430; In Re 
 ' Cross V. Tovm of Gladstone^ (.1905) 15 
 M.R. 528, but an injunction to prevent 
 the council from submitting the by-law 
 to the vote of the electors will not be 
 granted by reason only of the failure to 
 publish such notice, because - of the 
 existence of another adequate remedy in 
 case the by-law should be carried, viz', an 
 appUcation to quash it. 
 
 Weber v. Timlin, (1887) 34 N.W.R. 29, 
 followed. 
 
 Helm v. Port Hope, (1875) 22 Gr. 273, 
 and King v. City of Toronto, (1902) 5 
 O.L.R. 163, distinguished on the ground 
 that in those cases the councils had no 
 jurisdiction to submit the questions to 
 the vote of the people. Little v. McCart- 
 ney. Johnston v. Wright, 18 M.R. 323. 
 
 3. Plaintifi's title to oflice— Wrongful 
 assumption of jurisdiction. — Injunction 
 where mandamus proper — EMence. 
 
 Plaintiff having been elected alderman, 
 and taken his seat and having been 
 unseated by order of the County Judge, 
 for lack of property qualification, obtained 
 an ex parte injunction to restrain the 
 Mayor from proceeding to a new election, 
 and from refusing to permit the plaintiff 
 to sit and vote as a member of the Council, 
 upon the ground that the County Judge 
 ■ had no jurisdiction. Upon a motion to 
 continue the injunction. 
 
 Held, 1. That, the plaintiff not being in 
 fact quahfied, no injunction should be 
 granted. . . , 
 
 2. The Cotirt interferes by injunction 
 only to prevent or restrain injuries to 
 civil property and in defence of, or to 
 enforce, rights which are capable of 
 being enforced at law or in equity. The 
 Court has no jurisdiction to restrain 
 persons from acting without authority. 
 
 3. Although, under section 9 of the Q. B. 
 Act of 1886, the Court may issue an 
 injunction in cases where the plaintiff 
 would have been entitled to a mandamus 
 at law, yet it must appear that the cir- 
 cumstances would have justified a man- 
 damus; and, the only ground of complaint 
 being' that the defendant "threatens and 
 intends and will unless restrained,"&c. 
 
 Held, that the right to mandarnus had 
 not been shown. 
 
 In any case, the absence of the 
 jurisdiction of the County Judge would 
 have to be very fuUy and clearly shewn. 
 Calloway v. Pearson, 6 M.R. 364. 
 
 4. Practice — Motion to commit — Court 
 or Chambers. 
 
 A motion to commit for breach of an 
 injunction must be made in Court and 
 not in Chambers. Hardie v. Lavery, 5 
 M.R. 135. 
 
 6. Prayer for injunction — Motion for 
 interim injunction — Statemerit of claim. 
 
 An injunction cannot be granted where 
 none is prayed for. Reid v. Gibson, 17 
 G.L.T. Occ. 226. 
 
 6. Staying foreign action — Costs. 
 
 The Court has power to stay an action 
 brought in a foreign court, .where the party 
 bringing it is within the jurisdiction. But 
 no order will be made unless a clear case 
 of oppression be made out. 
 
 The plaintiff filed a bill against the 
 defendant as administratrix of S. to set 
 aside a policy of life insurance. After the 
 commencement of the suit the defendant 
 sued the plaintiffs in the Province of 
 Ontario upon the policy. The insured 
 had resided in Winnipeg, and the plaintiff 
 and the -witnesses were there. The 
 poUcy was payable in Ontario and the 
 head office of the company was there. 
 The plaintiffs were wiUing to submit to 
 such terms' as the Court should think 
 proper. 
 
 A motion for injunction to restrain the 
 Ontario action was refused with costs. 
 North AmericanLife Ass. Co. y. Sutherland, 
 3 M.R. 147. 
 
 See Arbitration and Awabd, 3. 
 
 — Company, IV, 14; XV, 14. 
 
 — Contempt of Couet. 
 
 — Costs, IV, 1, 2; X, 3. 
 
 — Ckown Lands, 1. 
 
 — Examination for Discovery, 13. 
 
 — Fraternal Order. 
 
 frattdulent conveyance, 18. 
 
 — Fraudulent Judgment, 5. 
 
 — Garnishment, III, 3. 
 
 — Liquor License Act, 2. 
 
 — Local Option By-law, VI, 1, 5. 
 
 — Mortgagor and Mortgagee, III, 3. 
 -r Municipal Elections. 3. 
 
 — Municipality, I, 1; VIII, 3, 4, 7. 
 
 NOISANCE, 2, 5. 
 
571, 
 
 INNUENDO. 
 
 572 
 
 See Parliamentary Elections, 3. 
 
 — Pleading, IV, 2; VII, 1; X, 9. 
 
 — Practice, V, 1. 
 
 — Phodtjction of Documents, 5. 
 
 — Public Parks Act. 
 
 — Real Property Limitation Act,^8. 
 
 — Ratification. . . - - 
 -^ Restraint of 'Trade. > 
 
 —I Sale op Land for Taxes, I, 1; III; 
 IX, 3. 
 
 — Trade Name. 
 
 — Trade Uwons. 
 
 — :, Trees on Highway. 
 
 INNUENDO. 
 
 See Libel, 7. 
 
 INSPECTION OF GOODS. 
 
 See Sale of Goods, II, 1. 
 
 INTENT, 
 
 See Contract, XV, 10. " , 
 
 — Conviction, 1. '_- 
 
 — Election Petition, IV, 5. 
 
 — Fraudulent Preference, III, 2; 
 
 IV; V; VI, 4, 5. 
 
 INTENT TO DEFRAUD. 
 
 See Capias, 2. 
 
 INSANITY. 
 
 See Alimony, 6. ! 
 
 ^ Criminaju Law, XVJI, 18. 
 
 INSOLVENCY. 
 
 See]AssiGNMENT for .Benefit of Credi- 
 tors. _ , 
 
 —I Fraudulent Conveyance, 17. 
 
 — ^j Fraudulent Preference, I, 1; III, 
 1, 7; V; VI, 3. 
 
 — 4 Stoppage in Transitu. » 
 
 — . Winding-up, I, 1; IV, 6. 
 
 INSOLVENT BANK. 
 
 SeeiWiNDiNG-up, II, 1; IV, 10. 
 
 INSOLVENT PLAINTIFF. 
 
 See Security for Costs, X, 3. 
 
 INSPECTION OF DOCUMENTS. 
 
 See Practice, XXVIII, 9, 11. 
 
 rr Production of Documents, 9. 
 
 INTEREST. 
 
 1. Compound interest — Construction 
 of mortgage — Mortgage suit. 
 
 Where a mortgage provides for payment 
 of interest half-yearly and that, "on 
 default in payment of any instalment of 
 interest^, such interest shall at once 
 ' become principal and bear interest at the 
 rate aforesaid," the account^ in the 
 Master's office should be taken with half- 
 yearly rests, the interest being com- 
 poimded half-yearly. Canada Permanent 
 Loan & Sav. Co. v. Hilliard, 3 M.R. 32.- 
 
 2. Debt certain and time certain— 
 
 3 & 4 Wm. 4, c. 42, s. 28 (Imp.). ■ 
 
 To entitle a credittfr ±o interest uiider 
 3 & 4 Wm. 4, c. 42, s. 28 (Imp.), the 
 written instrument under which it is 
 claimed must shov^ by its terms^that there- 
 was a debt certain payable at a certain 
 time. It is not sufficient that the same 
 may be made certain by some process of 
 calculation or soine act to be performed 
 in the future. Sinclair v. Preston, 31 
 S.C.R. 408. 
 
 3. On judgment. 
 
 Held, on consultation of the Judges of 
 the Court of Appeal, that, where any 
 judgment of a Court below has been 
 changed, interest should only be allowed 
 on the judgment from the date of the 
 judgment of the Court of Appeal, not- 
 withstanding section 2 of The King's 
 Bench Act. Sheldon ViEgan, 18 M.R. 221. 
 
S73 
 
 INTEREST IN LAND. 
 
 574 
 
 4. Rate of interest recoverable by 
 Bank when more than seven per cent 
 stipulated for — Chequesas payment — Bank 
 Act, ss. 80, 81. 
 
 Defendant borrowed large sums of 
 money from the plaintiff Bankby way of 
 overcbaft and on promissory notes. Hav- 
 ing agreed to pay interest, first at 24 per 
 cent, afterwards at 18 per cent per 
 annum, defendant from time to time gave 
 the. Bank cheques on his current account 
 to pay the interest at those fates respec- 
 tively up to 31st January, 1902. When 
 such cheques were given the account had 
 already been overdrawn, but it was after- 
 wards changed into a credit balance in 
 defendant's fstvor by deposits^ or by col- 
 lections made by the Bank for defendant's 
 account. 
 
 Held, that such cheques should be 
 deemed to have been payment of the 
 ' interest, and that defendant could not 
 recover back such interest or any part of 
 it, although it was in excess of the seven 
 per cent rate which the Bank Act permits 
 a bank to charge. 
 
 Held, also, that, under sections 80 and 
 81 of the Bank Act, the Bank was not 
 entitled to sue for and recover interest 
 accruing after 31st January, 1902, ait 
 seven per cent per annum, but could only 
 recover interest at the legal rate of five 
 per cent per annum from that date on the 
 principal then due. Bank of British North 
 America v. Bossuyt, 15 M.R. 266. 
 
 See Administkation, 1. 
 
 \- Banks and BiNKiNC. 9. ' , 
 
 — Constitutional Law, 5, 6. 
 
 — Contract, VIII, 4; IX, 4; XII, 1. 
 
 — FiHE Insurance, 6. 
 
 — Foreign Judgment, 8. 
 
 — Husband and Wife, III, 1. 
 
 — Interpleader, VHI, 3, 4. 
 
 — Mortgagor and Mortgagee, II. 
 
 — Principal and Agent, II, F. 
 
 — Railways, V, 2. 
 
 — Receiver. 
 
 — Rectification op Deeds, 2. 
 ^ Sale op Goods, V, 1. 
 
 — Sale op Land por Taxes, IV, 3. 
 
 — Solicitor and Client, I, 2. 
 
 — Statutes, Construction op, 7. 
 
 — Summary Judgment, II, 2. 
 
 — Will, II, 1, 2. 
 
 INTEREST IN LAND. 
 
 See Fraudulent Conveyance, 20. 
 — Registered Judgment, 5. 
 
 See Sale op Land for Taxes, II. 
 — Vendor and Purchaser, IV, 1. 
 
 INTERIM INJUNCTION. 
 
 See Injunction, I, 7. 
 
 INTERLOCUTORY COSTS. 
 
 See Security por Costs, X, 4. 
 — Set Off, 1. 
 
 INTERLOCUTORY MOTION OR 
 APPLICATION. 
 
 See Costs, X, 3. 
 
 INTERLOCUTORY ORDER. 
 
 See Appeal prom County Court, VI, 2. 
 
 INTERLOCUTORY OR FINAL 
 JUDGMENT. 
 
 See Foreign Court, 1. 
 
 — • Foreign Judgment, 1. 
 
 — Fraudulent Conveyance, 19. 
 
 INTER-MUNICIPAL HIGHWAY. 
 
 See Municipality, II, 2. 
 
 INTERPLEADER. 
 
 I. 
 
 By Common Carrier. 
 II. Costs. 
 
 III. Evidence at Trial of Issue. 
 
 IV. Form op Order. 
 By Garnishee. 
 Practice. 
 
 Vn. Security for Costs. 
 VIII. By Sheriff. 
 IX. Other Cases. 
 
 V. 
 VI. 
 
675 
 
 INTERPLEADER. 
 
 576 
 
 I. By Common Cabrieb. 
 
 1. As between consignor and exe- 
 cution creditor of another person- 
 Con. Stat., c 37, s. 65. 
 
 Where goods delivered to a. common 
 carrier by F. were seized by the sheriff 
 under an execution against P. 
 
 Held, that the carrier could not, under 
 Con. Stat., c. 37, s. 65, call upon the 
 execution creditor and sheriff to inter- 
 plead with F. Merchants' Bank v. Peters, 
 1 M.R. 372. 
 
 2. Goods not within jurisdiction. 
 
 The Court has no jurisdic^on under the 
 ~ Act relating to interpleader by carriers, 
 when the goods are not within the juris- 
 diction. 
 
 Although no jurisdiction, yet the sum- 
 mons may be discharged with costs. Re 
 Brunswick Balke Co. & Martin, 3 M.R, 328. 
 
 costs of the sheriff and the plaintiff, the 
 proper order is that the sheriff's costs be 
 taxed to him and an allocatur served on 
 the plaintiff, that the plaintiff add them 
 to his costs, and upon receipt of the 
 amount pay the sheriff. 
 
 The facts appear from the judgment. 
 Patterson y. Kennedy, 2 M.R. 63. 
 
 4. Claimant abandoning — Sheriff's 
 
 A ]3erson served a notice upon a sheriff 
 claiming, as his, goods seized under, writ 
 against another. Upon the return of an 
 interpleader summons the claimant ap- 
 peared,, obtained two enlargements and, 
 doing nothing to substantiate his claim, 
 was barred. 
 
 Held, that the claimant should pay the 
 sheriff's costs. Cochrane v. McFarlane, 
 5 M.R. 120. ' 
 
 II. Costs. 
 
 1. Appeal as to costs. 
 
 Although the claimant upon the trial of 
 an interpleader issue ajJcceeds, yet the 
 Court may, in its discretion, refuse to give 
 him costs against the execution creditor.. 
 
 The Court cannot, however, in such a 
 case order the claimant to pay Hie sheriff 
 his costs of taking possession of the goods 
 - claimed, or his possession money prior to 
 the date of the interpleader order. Massey 
 M-anufacturing Co. v. Gaudry, 4 M.R. 229. 
 
 2. 'Appeal for costs— (S/ien#'s costs. 
 
 An execution creditor directed a sheriff 
 to interplead between him and a claimant 
 to some seized goods. Upon the return of 
 the interpleader summons the creditor 
 obtained an enlargement to examine the 
 claimant. Upon- the further return the 
 creditor abandoned. 
 
 Held, 1. That the creditor ought to pay 
 the sheriff's costs of the proceeding. 
 - 2. That the. refusal of the Referee to 
 allow such costs might be appealed from. 
 Stephens v. Rogers — Ex parte Livingstone, 
 6 M.R. 298. 
 
 JDistinguished, Blake v. Manitoba Mill- 
 ing Co. 8 M.R. 427. 
 
 3. Claimant abandoning — Costs of 
 sheriff. 
 
 Held, that where a plaintiff examines a 
 claimant upon his affidavit, and the 
 claimant subsequently abandons his claim 
 and is barred, and ordered to pay the 
 
 6. Defendant interpleading. 
 
 Aftef declaration defendants obtained a 
 summons, under 48 Vic, c. 17, s. 54, caUing 
 upon various claimants to the fund sued 
 for to maintain or reUnquish their claims. 
 All the claimants abandoned exefept the 
 Imperial Bahlc, and an order was pro- 
 nounced directing the defendants to pay 
 the fund into court, after deducting their 
 costs; that there should be no costs as to 
 those who abandoned their claims; and 
 that an issue should~be tried between the 
 plaintiff and the Bank. Upon settUng 
 the terms of this order the Bank also 
 abandoned, and the order, instead of 
 providing for an issue, directed the Bank 
 to pay the plaintffif's costs of the appUca^ 
 tion, and the defendant's co^ts deducted 
 out of the fund.. The claim of the Bank 
 was under two garnishee attaching orders, 
 one issued in a suit against D., K. & A., and 
 the other in a suit against T. K. & M. K., 
 the Hudson's Bay Co. in both suits being 
 the- garnishees. The plaintiffs in the 
 present suit were T. K. & A. 
 
 Held, that the statute was appUcable 
 to the Bank's claim, and that an issue 
 might therefore have been du-ected. 
 
 The defendants were entitled to deduct 
 their costs, both of the suit and also of the 
 application, so far as related to the Bank, 
 but" not of calling in the other abandoning 
 claimants. 
 
 AVhere a claimant does not appear, or 
 appears and abandons, no costs are 
 awarded. Armit v. Hudson's Bciy Co., 3 
 M.R. 529. 
 
577 
 
 INTERPLEADER. 
 
 578 
 
 6. Defendant interpleading — Pay- 
 ment into Court. 
 
 The defendant, being indebted to Cr., 
 M., a creditor of Cr., obtained a garnishing 
 order against S. Instead of paying the 
 money into court, S. retained it and was 
 afterwards sued for the "same amount by 
 the plaintiff, who claimed as assignee of 
 Cr. The defendant after issue joined 
 obtained an order requiring M. and the 
 plaintiff to interplead. The plaintiff 
 succeeded upon the issue. 
 
 Held, 1. The defendant should pay the 
 whole costs of the action down to the 
 interpleader order. 
 
 2. M. should pay to the plaintiff the 
 costs of the issue. 
 
 3. No costs allowed to any party con- 
 nected with paying in or paying' out the 
 money. Clougher v. Scoones, 3 M.R. 238. 
 
 -. 7. Discretion of Judge. 
 
 Held, 1. In an interpleader issue, where 
 each party succeeds as to part of the goods, 
 there should be a division of costs, and the 
 ratio of that division is in the discretion 
 of the Judge. 
 
 2. The Court has power to review the 
 discretionary order of a Judge, but does 
 not exercise it, unless in a strong case 
 where the discretion has been exercised on 
 a wrong principle. Burnham v. Walton, 
 
 2 M.R. 180. 
 
 8. Sale by sheriff. 
 
 An execution creditor, consenting to be 
 barred after an interpleader order has 
 been made, must pay the costs of a sale 
 by the sheriff of the goods seized as well 
 as the costs of the application for the 
 interpleader order, possession money, &c. 
 Manitoba and N. W. Loan Co. v. Roulley, 
 
 3 M.R. 296. 
 
 9. Several issues. 
 
 . Disposition of costs in interpleader pro- 
 ceedings where distinct issues taken by 
 several execution creditors, the claimant 
 l?eing the same in aU. Brown v. Portage 
 la Prairie Manf. Co., 3 M.R. 245. 
 
 III. Evidence at Trial op Issue. , 
 
 Proof of judgment at trial of inter- 
 pleader issue — Attaching order. 
 
 1. When a third person claims goods 
 seized by the sheriff under an attaching 
 order and the sheriff appUes for an iater- 
 pleader order, any objection by the 
 claimant as to the want or insufficiency of 
 the material on which the attaching order 
 
 was obtained should be raised in answer 
 to the sheriff's apphcation, and it will be 
 too late to raise such objection at the trial 
 of the interpleader issue. 
 
 2. It is not necessary at the trial of 
 such an interjileader issue for the plaintiff, 
 althoug\ he is plaintiff in the issue, to 
 prove the defendant's indebtedness, at 
 least in the absence of evidence on the 
 part of the claimant to show that it did 
 not exist. 
 
 Holdenv. Langley, (1861) 11 U.C.C.P. 
 407; Ripstein v. British Canadian, (1890) 
 7 M.R. 119; PlummefY. Price; (1878) 39 
 L.T. 658, and Edwards v. English, (1857) 
 7 E. & B. 564, followed. 
 
 The attaching order having been set 
 aside by the referee after the making of 
 the interpleader order and the sheriff 
 having reUnquished possession of the 
 .goods, the claimant contended that the 
 latter order then lapsed; but the attaching 
 order had been reinstated on appeal to a 
 Judge, when the sheriff again took pos- 
 session of such of the goods formerly 
 seized as he found to be still in the claim- 
 ant's possession. 
 
 Held, that the plaintiff had a right to 
 have the interpleader issue disposed of 
 and that, as the merits were in his favor, 
 the verdict for him should stand, but 
 limited in its effect to the goods seized by 
 the sheriff after the attaching order was 
 
 Howe V. Martin, (1890) 6 M.R. 616, 
 followed. Turner v. Tymchorak, 17, M.R. 
 687. 
 
 IV. FoBM OF Okder. 
 
 1. Giving back possession to claim- 
 ant. 
 
 The ordinary form of an order dii'ecting 
 an interpleader issue had been drawn, up 
 and came before the Judge for settlement. 
 
 Held, 1. That, where an interpleader 
 issue is directed at the instance of a 
 sheriff, the general rule is that the order 
 should direct the sheriffi to withdraw 
 from possession upon payment to the 
 sheriff by the claimant of the possession 
 money from the date of the order, not 
 from the date of the seizure or of the 
 making of the claim. 
 
 2. Under 46 and 47 Vic, c. 30, the 
 proper issue to direct is "Whether at the 
 time of the seizure of the goods by the 
 sheriff the goods were the property of the 
 claimant as against the execution creditor.' ' 
 Keeler v. Hazlewood, 1 M.R. 31. 
 
579 
 
 INTERPLEADER. 
 
 580 
 
 2. "The goods or any part thereof." 
 
 It is immaterial whether an interpleader 
 issue refers to "the goods seized," or "the 
 goods seized, or any part thereof." 
 Under the former words the claimant may- 
 prove for a portion of the goods seized. 
 Stephens v. McArthur, 6 M.R. 111. 
 
 3. Power to direct sale of goods in 
 default of claimant giving security — 
 
 Discretion in Referee. 
 
 Under an execution against the defend- 
 ant, the sheriff seized certain goods which 
 were claimed by D. H. & Co. 
 
 Thereupon the Referee, oii the applica- 
 tion of Ijhe sheriff, made an order that 
 upon the claimants paying into court 
 1100, or giving security for that amount, 
 the sheriff should withdraw from posses- 
 sion, but in default of making such pay- 
 ment, or the giving of such security, that 
 the goods should be sold and the proceeds, 
 after deducting expenses, paid into court 
 to abide further order. 
 
 Held, that the Referee had jurisdiction 
 to make the order, and that the discretion 
 vested in him was properly exercised. 
 Bank of Nova Scotia v. Hope, Hope & 
 Co., Claimants, 9 M.R. 37. 
 
 V. By Gaenishbe. 
 
 1. Garnishee claiming interest in 
 fund. 
 
 A garnishing order having been served 
 by plaintiffs, the garnishees pa'd $667.46 
 into court, suggesting the names of 
 several claimants to the fund. One of 
 these,- F., had commenced an action 
 against the garnishees, claiming $1,000 to 
 be the amount due. Upon a summons 
 taken out by the plaintiffs an order was 
 made barring all the claimants except the 
 plaintiffs and F. (including the assignors 
 of F.), staying F.'s action and directing 
 interpleader between F. and the plaintiffs. 
 Upon appeal, 
 
 Held, 1. Thart the order might properly 
 have barred the other claimants. 
 
 2. That the interpleader order could 
 only be made at the instance of the 
 garnishees. 
 
 (a) 3. There being a dispute as to the 
 amount due by the garnishees, they could 
 not obtain an interpleader order. Mer- 
 chants' Bank v. McLean. Henderson & 
 Bp.ll, Garnishees, 5 M. R. 219. 
 
 (a) Overruled in Mclntyre v. Woods, 5 
 M. R. 347. See next case. 
 
 2. Dispute as to amount due by 
 Garnishees — Procedure. 
 
 Under 49 Vic, c. 35, s. 10, a garnishee 
 may have an interpleader as to the amount 
 he admits to be due, although a larger 
 amount may be alleged by the attaching 
 creditor to be owing. Merchants' Bank v. 
 McLean, 5 M.R. 219, overruled. 
 
 The garnishee should, however, upon 
 affidavit, express his readiness to bring 
 into court the amount truly owing, 
 whatever that may be found to be. Such 
 an affidavit was allowed to be supple- 
 mented. , 
 
 An issue may be directed to ascertain 
 what is the true amount due. Mclntyre 
 V. Woods. C. P. R. Garnishees, 5 M.R. 
 347. 
 
 3. Money deposited in Bank — Gar- 
 nishee ord^r— Assignment of deposit receipt 
 — Refusal of Bank to pay to assignee — 
 Delay in making application. 
 
 Application of Bank to compel gar- 
 nishing creditor of defendant and the 
 assignee of defendant's deposit receipt to 
 interplead. 
 
 Defendant had assigned the deposit 
 receipt to his wife who had demanded the 
 money. The Bank delayed payment on 
 various pretexts for five days when 
 plaintiff's garnishing order was ser ed. 
 Plaintiff eight days afterwards took out 
 a summons to pay over and the Bank 
 after seven more days took out the inter- 
 pleader summons. 
 
 Held, that the interpleader order 
 should go, as the delay was not unreason- 
 able, and the claimants' rights had not 
 been prejudiced. Schmidt v. Douglas, 14 
 C.L.T. Occ. N. 515. 
 
 VI. Practice. 
 
 1. Notice of trial. 
 
 Held, that, if on an interpleader issue 
 the plaintiff does not give notice of trial, 
 the defendant's proper course is to apply 
 to the Court for an order to bar the 
 plaintiff. Plaxton v. Monkman, 3 M.R. 
 371. 
 
 2. Who should be made plaintiff in 
 
 issue— Goods seized in possession of 
 mortgagee. 
 
 In April, 1892, the plaintiff placed a 
 writ oifi.fa. against the goods of defendant 
 in the sheriff's hands. The sheriff seized 
 certain goods as the property of defendant, 
 but they were claimed by the Commercial 
 Bank. ' They had been mortgaged to the 
 
581 
 
 INTERPLEADER. 
 
 582 
 
 Bank in January, 1892, and were taken 
 possession of by the Bank a few days 
 before the seizure, and at that time were 
 in the actual possession of the Bank. An 
 interpleader issue was directed and the 
 question ,was which party should be 
 made plaintiff in the issue. 
 
 Held, that the execution creditors 
 should be made plaintiffs. Union Bank 
 of Canada v. Tizzard. Commercial Bank 
 of Manitoba, Claimants, 9 M.R. 149. 
 
 VII. Security for Costs. 
 
 1. Application for — Style of cause. 
 An application for security for costs of 
 
 interpleader jiroceedings, made. after the 
 issue of the interpleader order, must be 
 styled not in the original cause, but in 
 the interpleader issue. McMaster v. Jas- 
 per, 3 M.R. 605. 
 
 2. Barring claimant in default of. 
 
 The defendant in an interpleader issue 
 was ordered to give security far costs. 
 After long delay an order was made that 
 he do give security within a limited time 
 or that his claim be barred. C. P. B. v. 
 Forsyth, 3 M.R. 45. 
 
 3. FlaintiS in issue out of the 
 jurisdiction. 
 
 A garnishee admitted his liability to 
 the judgment debtor, but suggested that 
 one B. claimed the money under an 
 assignment made to him by the judgment 
 debtor. Upon settling the form of the 
 order for an issue, 
 
 Held, 1. That B. the claimant ought to 
 be the plaintiff. 
 
 2. That it did not, from this, and from 
 the fact that he resided without the 
 jurisdiction of the court, necessarily follow 
 that he should give security for co ts, 
 that the Court could exercise its discretion, 
 and would not order security unless the 
 appUcant showed circumstances warrant- 
 ing that direction. McPhillips v. Wolf, 
 4 M.R. 300. 
 
 VIII. By Sheriff. 
 
 1 . Delay in applying — Defending action 
 not necessarily a bar. 
 
 Giving relief to a sheriff by interpleader 
 is a matter of judicial discretion and mere 
 delay, even if imperfectly accounted for, 
 will not be a bar to a sheriff obtaining an 
 order, if the parties have not been preju- 
 diced by the delay, and there has been no 
 misconduct or collusion. 
 
 Defending an action brought by the 
 claimant against him will not necessarily, 
 disentitle a sheriff to relief. 
 
 Remarks on the duty of the sheriff to 
 come promptly for an interpleader without 
 exercising any discretion. 
 
 Holt V. Frost, 3 H. & N. 821; Winter v. 
 Bartholomew, 11 Ex. 704, followed. Mac- 
 donaU v. (?. W. Central Ry. Co., 10 M.R. 
 83. 
 
 2. Exercise of discretion by sheriffs 
 
 Laches — Protection of sheriff. 
 
 A sheriff seizing goods under an execu- 
 tion, and having notice that a third party 
 claims the goods seized, if he desires to 
 interplead, must apply to the Court 
 promptly, and not exercise a discretion 
 by selUng or otherwise dealing with the 
 goods. 
 
 Boswell V. Petiigrew, 7 P.R. 393, followed. 
 
 Darling v. Collation, 10 P.R. 110, con- 
 sidered. 
 
 Protection wiD be. given to the sheriff 
 only when he has not abused his power, 
 or caused substantial grievance, and has 
 not been guilty of misconduct or neglect, 
 the "object of the statute being to protect 
 him when it is unjust that he should be 
 sued. Harris v. York, 8 M.R. 89. 
 
 3.. Interest on money in sheri£E's 
 hands. 
 
 Held, as between two execution credi- 
 tors, the first is entitled to interest on his 
 judgment out of moneys remaining with 
 sheriff pending the trial of an interpleader 
 issue. Wolff V. Black; McKinnon v. 
 BUck, 1 M.R. 243. 
 
 4. Interest upon moneys in sheriff's 
 hands. 
 
 A sheriff made money upon a number 
 of writs against the same debtor, and held 
 it during a contest between the various 
 execution creditors for priority. 
 
 Held, that the creditors obtaining 
 priority were not entitled to interest upon 
 their respective claims out of the fund. ^ 
 Bumham v. Walton, 3 M.R. 204. 
 
 5. Rescission of interpleader order 
 because of sheriff giving up posses- 
 sion. 
 
 An interpleader order, besides providing 
 for an issue, required the execution creditor 
 to give security for costs by a certain day, 
 otherwise he should be barred, and directed 
 the sheriff to sell unless the claimant gave 
 security for the goods. After lapse of the 
 prescribed period the Referee made an 
 
583 
 
 INTERPLEADER. 
 
 684 
 
 order enlarging the time. Upon appeal a 
 Judge discharged this order, holding that 
 the creditor had become barred, and that 
 there was no jurisdiction to extend the 
 time. The FuU Court, however, restored 
 the Referee's order. After the order of the 
 single Judge the sheriff withdrew from 
 possession and the goods were dissipated. 
 The creditor, then finding it useless to 
 proceed with the issue, moved to rescind 
 the interpleader order. 
 
 Held, that the order should not be 
 rescinded, but that the creditor's remedy 
 was by action against the sheriff if he had 
 done wrong. Howe v. Martin, 6 M.R. 
 615. 
 
 6. AVhen refused. 
 
 A sheriff must exercise a sound judg- 
 ment with respect to applying for an 
 interpleader order and, where the claim- 
 ant to the goods seized has clearly no 
 right, the order wiU not be granted. 
 Monitor Plow Works v. Allen, T. W. 165. 
 
 IX. Other Cases. 
 
 1. Claimant's bond, form of — Sher- 
 iff's costs. 
 
 1. Form of claimant's bond given and 
 discussed. 
 
 2. An interpleader order may direct 
 payment of the' sheriff's costs. Ashdown 
 V. Nash, 3 M.R. 37. 
 
 2. Commission on sale claimed by 
 two agents — King's Bench Act, Rule 899. 
 
 Rehef by way of interpleader may be 
 granted, under Rule 899 of the King's 
 Bench Act, to a vendor of land as between 
 two agents each claiming the same amount 
 as commission on the sale of land, the 
 vendor admitting that the amount is due 
 to one or other of the agents. 
 
 Greatorex v. Shackle, (1895) 2 Q.B. 249, 
 distinguished. Webb v. Rodney., 19 M.R. 
 120. 
 
 3. Jurisdiction of Referee — E 
 
 parties. 
 
 Where an interpleader application before 
 the Referee falls to.be disposed of upon 
 a matter of practice, as where the sheriff 
 by his delay or having taken indemnity 
 from one of the parties is not entitled to 
 rehef; where either the execution creditor 
 or the claimant fails to appear on the 
 return of the summons; where either of 
 them, though -appearing, dechnes to take 
 an issue; where the claimant, though 
 appearing, fails to support his claim by 
 any evidence which can be looked at; or 
 
 where there is some such state of circum- 
 stances, the Referee may dispose of the 
 whole question. But where the claimant 
 does support his claim,, and the question 
 is whether he has merits or not, then the 
 Referee should order an issue or refer the 
 matter to a Judge. Gait v. McLean, 6 
 M.R. 424. 
 
 4. Money paid to sheriflE, by pur- 
 chaser from trustee, upon fi. fa. 
 against trustee — Rights of cestui que 
 trust. 
 
 Upon a sale of lands by a trustee, the 
 purchaser paid a portion of the price to a 
 sheriff who held a fi. fa. against the 
 trustee. There was no evidence that the 
 payment to the sheriff was other than in 
 his official capacity. On the contrary, 
 there was evidence that he refused to give 
 a certificate to the purchaser that there 
 were no executions in his hands until the 
 money was paid to him. 
 
 Held, that the cestui qu.e trust was not 
 entitled to the money so paid as against 
 the execution creditor. 
 
 Per Wallbkidge, C.J. — The money 
 could not properly iDe the subject of an 
 interpleader issue. Federal Bank v. Canad- 
 ian Bank of Commerce, 2 M.R. 257. 
 
 5. Trial of issue — Interpleader issue an 
 action — Trial of, on Tvssday. 
 
 An interpleader issue is within the term 
 " action," and may be entered for trial 
 upon a Tuesday. Plaxton v. Monkman, 1 
 M.R. 371, considered. Douglas v. Burn- 
 ham, 5 M.R. 261. 
 
 See Abbiteation and Award, 8. 
 
 — Bills of Sale, 2. 
 
 — Costs, XIII, 11. 
 
 — County Court, II, 4. 
 
 — Evidence, 2. 
 
 ■ — Examination op Judgment Debtor, 
 6. 
 
 — Fi. Fa. Goods, 1, 4. 
 
 — Fixtures, 4. 
 
 — Fraudulent Conveyance, 7, 21. 
 
 — Fraudulent Judgment, 2. 
 
 — Fraudulent Preference, VI, 5, 6. 
 
 — Garnishment, VI, 4. 
 
 — Growing Crops. 
 
 — Husband and Wipe, I, 2, 3; II, 1; 
 
 III, 2; IV, 2. 
 
 — Partnership, 6. 
 
 — Pleading, XI, 12. • 
 
 — Practice, XXVIII, 12. 
 
 — Security for Costs, I, 2; X, 5. 
 
 — Sheriff, 7. 
 
 — Staying Proceedings, III, 2. 
 
585 
 
 INTERROGATORIES. 
 
 586 
 
 INTERROGATORIES. 
 
 See Practice, IV, 2; VI; XVI, 5. 
 
 See Pabties to Action, 8. 
 
 — Pleading, I, 3; V. 
 
 — Practice, IX. 
 
 — Sale of Land fob Taxes, V, 2. 
 
 INTESTACY. 
 
 See Real Property Act, V, 3. 
 
 JOINDER OF DEFENDANTS. 
 
 See Pleading, V, 2. 
 — Practice, IX, 2. 
 
 INTOXICATING LIQUOR. 
 
 See Liquor License Act, 5, 10. 
 
 INTCpCICATION. , 
 
 iSee Accident Insurance, 1. 
 
 — Contract, XI, 1. 
 
 — Fraud, 1. 
 
 JOINDER OF PLAINTIFFS. 
 
 See Parties to Action, 3, 4. 
 
 IRREGULARITY. 
 
 See Administration, 5. 
 
 — Appeal from N. W. T. 
 
 — ■ Arbitration and Award, 9. 
 
 — Attaohment of Goods, 3, 6. 
 
 — Criminal Law, X, 3. 
 
 — Ejectment, 2. 
 
 — ■ Election Petition, III, 2. 
 
 — Evidence on Commission, 7, 9. 
 — ■ Foreign Corporations, 1. 
 
 — Foreign Judgment, 4. 
 
 — Garnishment, I, 7; IV, 1. 
 
 — Landlord and Tenant, III, 2. 
 
 — Municipal Elections, 4. 
 
 — Practice, III, 4; VII; XX, B. 1, 5; 
 
 XXII, 1; XXVIII, 27. 
 
 — Prohibition, III, 1. 
 
 — Real Property Act, I, 6; III, 7. 
 
 — Sale of Land for Taxes, IV; VI, 2, 
 
 3,4; IX, 1. 
 
 ISSUE 
 
 UNDER REAL PROPERTY 
 ACT. 
 
 See Real Property Act, I, 10; II. 
 — Real Property Limitation Act, 4. 
 
 JOINDER OF CAUSES OF ACTION. 
 
 See Jury Trial, I, 6. 
 
 — Landlord and Tenant, I, 4. 
 
 JOINDER OF SEVERAL ACCUSED 
 PERSONS. 
 
 See Criminal Law, XVII, 7. 
 
 JOINT CONTRACTORS. 
 
 See Contract, XI, 1. 
 
 JOINT COVENANTORS. 
 
 See Parties to Action, 4. 
 
 JOINT CREDITOR. 
 
 See Garnishment, V, 3. 
 — Statute of Frauds, 4. 
 
 JOINT DEBTORS. 
 
 1. Effect of taking judgment against 
 one of two or more — King's Bench Act, 
 Rule 585, as amended by section 12 of 
 chapter 12 of 7 & 8 Edward VII. 
 
 Rule 585 of the King's Bench Act, as 
 amended by section 12 of chapter 12 of 
 7 & 8 Edward VII, permitting judgment 
 to be signed against such defendants as do 
 not defend without prejudice to the right 
 of the plaintiff to proceed with the action 
 
687 
 
 JOINT LIABILITY. 
 
 588 
 
 against any other defendant or defendants, 
 in so far as it is intended to abrogate the 
 old rule that, in an action against two or 
 more joint debtors, taking judgment 
 against one is a release of the other or 
 others, must be construed strictly, and 
 cannot be applied in a case in which the 
 judgment was entered against a joint 
 debtor who had actually entered a defence, 
 although such defence was afterwards 
 struck out for default in making discovery. 
 Wihon V. Sivart, 20 M.R. 507. 
 
 [But see now s. 4 of c. 14 of 1 Geo. V.] 
 
 2. Release of one by giving time to 
 the other — Release by accepting separate 
 obligations of one joint debtor. 
 
 Where one of two joint debtors fur- 
 nished the other with money to pay his 
 half of the debt, his position as to the 
 balance does not become merely that of 
 surety for the other, unless the creditor 
 knew of the facts. 
 
 Rouse V. Bradford Banking Co., [1894] 
 2 Ch. 32, [1894] A.C. 587, followed. 
 
 A creditor accepted the separate promis- 
 sory note of one of two joint debtors for 
 an unpaid balance of the debt, thereby 
 giving him time. The creditor, at the 
 same time, declared his intention to hold 
 bo^h debtors. The separate note was 
 renewed several times. 
 
 Held, that the other joint debtor was 
 not thereby released. 
 
 Swire v. Redman, (1876) 1 Q.B.D. 536; 
 Bresse v. CHffith, (1894) 24 O.R. 492; 
 Cluffv. Norris, (1909) 19 O.L.R. 457, and 
 Bedford v. Deakin, 2 B. & Aid. 210, fol- 
 lowed. Schwartz Y. Bielschowsky, 21 M.R. 
 310. 
 
 See Examination op Judgment Debtor,7. 
 — Pleading, XI, iS. 
 
 JOINT TORT FEASORS. 
 
 Liability for damages not neces- 
 sarily the same in amount for all — 
 
 King's Bench Act, Rules 219, 220. 
 
 Since the fusion of Common Law and 
 Equity the damages assessed against a 
 number of joint tort feasors need not 
 always be the same for aU, but, if one of 
 them is responsible for only a part of the 
 total wrong done and the liabiUty, though 
 joint as to all at the time of the commence- 
 ment of the action, arose at different dates, 
 there may, under Rules 219 and 220 of the 
 King's Bench Act, R.S.M. 1902, c. 40, be 
 a verdict against the one for thalt part and 
 against the rest for the total amount of 
 damage committed. 
 
 O'Keeffe v. Walsh, [1903] 2 I.R. 681, 
 and Copeland Chalterson Co. v. Business 
 Systems Ltd., (1906) 11 O.L.R. 292, fol- 
 lowed. 
 
 The defendant Teskee tortiously cut 
 down and carried away a large number of 
 trees from the plaintiff's land with the 
 assistance of his co-defendants hired by 
 him. The work occupied eight days, but 
 the defendant K. was only engaged for 
 two days upon it. 
 
 Held, that K. was not liable for any- 
 thing beyond the amount of the damage 
 done during the two days. 
 
 The plaintiff had failed to show what 
 that amount was; but, as K. had joined 
 with the others in paying $91 into Court 
 to answer the plaintiff's claim, thus 
 admitting his liability for that amount, 
 the verdict of $1,000 against all in the trial 
 Court was changed to one for $91 against 
 K. and for the balance, $909, against the 
 other defendants. Stewart v. Teskee, 20 
 M.R. 167. 
 
 JUDGE AND JURY— PROVINCES OF. 
 
 See Slander. 
 
 JOINT LIABILITY. 
 
 See Bailment, 1. 
 ■ — Negligence, VII, 5. 
 — License to Take Possession op 
 .Goods. 
 
 JUDGE— POWERS OF. 
 
 See FHAtTDULENT Preperence, VI, 4. 
 
 — Jurisdiction, 3. 
 
 JOINT PURCHASERS. 
 
 See Vendor and Purchaser, IV, 4. 
 
 JUDGE IN CHAMBERS— JURIS- 
 DICTION. 
 
 See Capias, 2. 
 — Certiorari, 1. 
 
589 
 
 See Practice, I, 1. 
 
 — Prohibition, II. 
 
 — Solicitor's Lien for Costs,52. 
 
 JUDGE'S CHARGE TO JURY. 590 
 
 JUDGMENT ON PRECIPE. 
 
 See Practice, XI, 4. 
 
 JUDGE'S CHARGE TO JURY. 
 
 See Criminal Law, VI, 4; IX, 2; XVII, 
 12. 
 
 — False Imprisonment, 2, 3. 
 
 — Landlord and Tenant, I, 2. 
 
 — Libel, 6. 
 
 — • Master and Servant, I, 1 ; IV, 4. 
 
 — Negligence, I, 3. 
 
 — Slander. 
 
 — Trespass and Trover, 1. 
 
 JUDGMENT. 
 
 See Administration, 5, 6. 
 
 — Appeal to Privy Council, 1. 
 
 — Chattel Mortgage, II, 2. 
 
 — Contract, IX, 3. 
 
 — Evidence, 9. 
 
 — Examination of Judgment Debtor, 
 
 3. 
 
 — Executors AND Administrators, 1. 
 
 — Fi. Fa. Goods, 3, 4- 
 
 — Foreign Judgment, I, 10. 
 
 — Interest, 3. 
 
 — Joint Debtors, 1. 
 
 — Negligence, VII, 5. 
 
 — NuL Tiel Record, 1, 2. 
 
 — Practice, II, 1; III, 5; X, 2; XI, 1; 
 
 XXVIII, 17. 
 
 — Summary Judgment, III, 1. 
 
 JUDGMENT BY DEFAULT. 
 
 See Costs, VI, 2. 
 
 JUDGMENT CREDITOR. 
 
 See Garnishment, VI, 5. 
 
 — Registered Judgment,[|5. 
 
 JUDGMENT IN PERSONAM. 
 
 See Jurisdiction, 4. 
 
 — Mechanic's Lien, X, 3. 
 
 JUDICIAL 'DISCRETION. 
 
 See Practice, XX, B, 7. 
 
 JUDICIAL DISTRICTS. 
 
 See Liquor License Act, 9. 
 
 JUDICIAL DISTRICT BOARDS. 
 
 1. Separation of Winnipeg from Sel- 
 kirk — Winnipeg's liability to Board — 
 Equalized assessment — Judicial notice — 
 Pleading — By-laws not under seal — Action 
 for debt under statute. 
 
 The charter of the City of Winnipeg 
 (47 Vic, c. 78), separates the City from the 
 County of Selkirk, but in a qualified man- 
 ner only, and it may be liable to the East- 
 ern Judicial District Board for debts and 
 liabilities due by the City at the date of 
 the Act. 
 
 The Court will take judicial notice of the 
 territorial divisions of the Province. 
 
 An allegation that a by-law was passed 
 is a sufficient aUegatiou that it was sealed, 
 if sealing was necessary. 
 
 By-laws of the Board, except those 
 under which debentures are to be issued, 
 need not be under seal. 
 
 Where an Act of ParKament casts upon 
 a, party an obligation to pay a specific 
 sum of money to particular persons, an 
 action of debt may be maintained for the 
 amount ; and that although a different 
 remedy may be provided by the Act. A 
 mandamus would not be granted. 
 
 An allegation that the amount was "on 
 the basis of the equalized assessment and 
 valuation of the real property, duly 
 apportioned, and directed to be borne," is 
 a sufficient allegation that the Board did 
 exercise the discretion vested in it. 
 Eastern Judicial District Board v. City of 
 Wimnipeg, 3 M.R. 537. 
 
 2. Equalized assessments — Discretion. 
 
 The Judicial District Boards, in appor- 
 tioning among the municipalities the 
 amounts necessary for the purposes of the 
 Boards, have no discretion as to whether 
 
591 
 
 JUDICIAL NOTICE. 
 
 592 
 
 the equalized assessment shall be of the 
 real and personal estate or of the real 
 estate alone. It must be upon the basis 
 of both real and personal estate. Over- 
 ruling Taylor, J., 3 M.R. 537. Eastern 
 Judicial District Board v. City of Winniveg, 
 4 M.R. 323. 
 
 of an agreement for the purchase of land, 
 cannot take notice of the doctrine that 
 equity looks upon that as done which 
 ought to be done, and give relief accord- 
 ingly: Foster v. Reeves, [1892] 2 Q.B. 255. 
 McMillan v. Williams, 9 M.R. 627. 
 
 Distinguished, Holmwood v. Gillespie, 
 11 M.R. 186. 
 
 JUDICIAL NOTICE. 
 
 See Evidence, 14. 
 
 — Extradition, 8. 
 
 — Judicial District Boards, 1. 
 • — Prohibition, I, 5. 
 
 JURISDICTION. 
 
 1. Cause of action, where arising. 
 
 The writ was issued, specially endorsed 
 for money payable on a mortgage of lands 
 in Manitoba, executed by defendant in 
 Ontario, and payable to the mortgagee or 
 his assigns, but not at any particular 
 place. The plaintiff, who was the mort- 
 gagee, resided in Manitoba. 
 
 Held, that the act of the defendant 
 which gave the plaintiff his cause of com- 
 plaint — the non-payment of the money — 
 occurred within the Province, and that the 
 Court had jurisdiction. Bradley v. Mc- 
 Leish, 1 M.R. 103. 
 
 2. Of County Court — Statute of Frauds 
 — Title to land — Pleading — Objection taken 
 for the first time on appeal — Specific per- 
 formance. 
 
 In order to oust the jurisdiction of the 
 County Court on the ground that some 
 right or title to land is in question, it must 
 be shown that there is a bona fide dispute; 
 and, when the Judge has found a verdict 
 for the plaintiff, it will be assumed that he 
 had inquired into thfe ma,tter and decided 
 that there was no such dispute. 
 
 A Common Law action for a balance of 
 the purchase money of land sold under a 
 verbal agreement cannot be maintained, 
 although the deed has been delivered. 
 
 Cocking v. Ward, 1 C.B. 858, followed. 
 
 The objection of the Statute of Frauds 
 can be raised under" the defence of never 
 indebted, and can be insisted on before the 
 Appellate Court, although it did not 
 appear whether it had been raised at the 
 trial or not. ' 
 
 A County Court Judge, having no 
 jurisdiction to decree specific performance 
 
 3. Of Judge at Tuesday trial — Issues 
 on record — Action — Tender before action — 
 Paymerfi into court. 
 
 Declaration on the common counts. 
 
 Pleas 1. Except as to $42.15, never in- 
 debted and pajrment. 
 
 2. Except as to 142.15, tender before 
 action and payment into court. 
 
 Plaintiffs filed two replications. 
 
 1. Accepting the money paid into court 
 in satisfaction. 
 
 2. Traversing the tender before action: 
 The record having been entered for 
 
 Tuesday trial, the defendant objected that 
 no judgment could be entered upon it. 
 Held, that the Judge had the powers 
 . and authorities of a Judge of Assize and 
 Nisi Prius, and was bound to try the 
 issues on the record. 
 
 Wells V. Abrahams, L.R. 7 Q.B. 554, 
 considered. Winnipeg Jewellery Co. v. 
 Perrett, 9 M.R. 141. 
 
 4. Land out of — rAciion against non- 
 resident for cancellation of agreement of sale 
 of land not in jurisdiction — Provision for 
 cancelling agreement by mailing notice to 
 purchaser "at post office." 
 
 In an action brought by a resident of 
 the Province as vendor against the pur- 
 chaser, although he is a non-resident, for 
 specific performance of an agreement 
 executed within the jurisdiction for the 
 purchase of land though out of the juris- 
 diction under which the payments were 
 to be made within the jurisdiction, 
 the Court acts in personam, and, if 
 there is default in payment of subse- 
 quent instalments, has jurisdiction to order 
 that the purchaser perform his contract 
 within a time to be fixed and that, in 
 default, the contract be rescinded and any 
 money aheady paid thereon forfeited to 
 the plaintiff. 
 
 Piggott, 127, 128, and Gray v. M. & 
 N. W. By. Co., (1896) 11 M.R. 48, fol- 
 lowed. 1 
 
 A provision for cancellation of an agree- 
 ment of sale after default and forfeiture of 
 money already paid by mailing a notice 
 to the purchaser "at post office" 
 
593 
 
 JURISDICTION 
 
 594 
 
 is ineffective and should be altogether dis- 
 regarded. Burley v. Knappen, 20 M.R. 
 154. 
 
 5. Of Master — Principal and agent. 
 In a suit between principal and agent, 
 
 upon the footing of an agreement by 
 which the agent was to receive a commis- 
 sion of 20 per cent, on aU sales of real 
 estate, the decree directed the Master to 
 take certain accounts, and ordered the 
 agent to pay into court any balance 
 found due by him, "less the defendant's 
 commission of 20 per cent." 
 
 Held, that the Master had no juris- 
 diction to set aside the agreement. 
 
 Held, that the agent, in employing the 
 services of an auctioneer, should have used 
 dihgence to make a reasonable bargain for 
 his remuneration. The auctioneer, having 
 retained out of the moneys received by 
 him an excessive fee, the agent was 
 charged with the excess. Vivian v. Scoble, 
 1 M.R. 125. 
 
 6. Service of process within — Action 
 on promissory note — Domicile of defendant 
 — Service of virit. 
 
 Held, actions upon promissory notes 
 and accounts are transitory, and a defend- 
 ant may be sued thereon irrespective of 
 his domicile, provided he be personally 
 served with process within the Province 
 where the suit is brought. McKay v. 
 Barber, 3 M.R. 41. 
 
 7. Service of process within — Action 
 on promissory note — Domicile of defendant 
 out of jurisdiction — Personal service tmtkin 
 jurisdiction. 
 
 An action on a promissory note is transi- 
 tory, and a defendant may be sued thereon 
 in Manitoba, although the cause of action 
 arose, and the domicile of the defendant 
 be, out of the jurisdiction, provided he be 
 personally served with process within the 
 Province. 
 
 McKay v. Barber, 3 M.R. 41, followed. 
 Rigby v. Reidle, 9 M.R. 139. 
 
 8. Service of process within — Action 
 against non-resident upon coflise of action 
 arising out of Province — Personal service of 
 statement of claim upon defendant while in 
 the Province — King's Bench Act, Rule 
 172, and Rule 174 as re-enacted by 9 Edw. 
 VII, c. 14, s. 1 — Expressio unius est 
 exclusio alterius. 
 
 Rule 174 of The King's Bench Act, 
 R.S.M. 1902, c. 40, as re-enacted by s. 1 
 of c. 14 of 9 Edward VII, was only intended 
 
 to provide that, instead of all actions being 
 transitory as before its passing, they should 
 now, subject to the exceptions named, be 
 local, and to require the commencement 
 of an action to be in the judicial district 
 in which the cause of action arose, or in 
 which the defendant, or one of several 
 defendants, resides or carries on business, 
 subject to the said exceptions. The new 
 Hule was not intended to take away the 
 jurisdiction of the -Court to entertain any 
 action, wherever the cause of it arose, 
 against any person, resident or non-resi- 
 dent, who could be personally served with 
 process within the jurisdiction. 
 
 Appeal against the dismissal of an 
 application by defendant to set aside the 
 service of the statement of claim upon 
 him personally in Manitoba in an action 
 upon promissory notes made by him in the 
 State of Colorado and payable there, on 
 the ground that he was not a resident of 
 the Province, dismissed with costs. 
 
 McKayY. Barber, (1885) 3 M.R. 41, and 
 Rigby. Y. Reidle, (1893) 9 M.R. 139, fol- 
 lowed. 
 
 The maxim, "expressio unius est exclusio 
 alterius," should not be applied when it 
 would lead to inconsistency or injustice. 
 
 Lowe Y. Darling, [1906] 2 K.B. at p. 784, 
 and Colquhoun v. Brooks, (1887) 19 Q.B.D. 
 at p. 406, 21 Q.B.D. at p. 65, followed. 
 
 First National Bank of Idaho Springs 
 V. Curry, 20 M.R. 247. 
 
 9. Service of statement of claim 
 out of jurisdiction — Writ of attachment — 
 King's Bench Act, Rules 201, 202^JVora- 
 resident foreigner — Detention of goods pend- 
 ing result of suit respecting them — Sub- 
 stitutional service. 
 
 Appeals from two decisions of Mathers, 
 J., upon an appUcation to set aside an 
 order of the Referee allowing substitu- 
 tional service of the statement of claim 
 and an application to set aside an order 
 of attachment under which certain goods 
 said to belong to the male defendant had 
 been seized by the sheriff. 
 
 The statement of claim alleged that 
 the male defendant had, while in the 
 position of treasurer of one of the depart- 
 ments of the Government of Russia, 
 stolen a large amount of moneys of the 
 plaintiff which had come to his hands and 
 had brought the money into Manitoba, 
 where he had bought certain lands with 
 it and also the goods seized under the 
 attachment. 
 
 Amongst other things, the plaintiff 
 asked for payment of the moneys stolen. 
 
595 
 
 JURISDICTION. 
 
 596 
 
 an order for the delivery or sale of the 
 goods, a declaration that the, defendants 
 had no claim to the said lands as against 
 the plaintiff, and an order for the sale 
 of them. 
 
 It appeared that the defendants had 
 left the Province about a month before 
 the commencement of the action and their 
 whereabouts were unknown to the plaintiff. 
 
 On the hearing of the 'appeals evidence 
 was allowed in to show that- the defendants 
 had, about two weeks before the com- 
 mencement of the action, executed powers 
 of attorney to one Popoff of Winnipeg, 
 in which each was described as "of 
 Winnipeg, Man., Canada, who was in 
 Chicagd, lU., on this date" and in which 
 Popoff was authorized to sell and dispose 
 of the defendants' property in )Vinnipeg. 
 
 Shortly after the defendants came to 
 Manitoba the male defendant bought 
 and furnished a house as a residence, 
 rented a store and bought goods with 
 which to carry on business and the defend- 
 ants, up to the time of their leaving the 
 Province, were probably domiciled or 
 ordinarily resident within Manitoba; but 
 it appeared from the material used by the 
 plaintiff on the apphcation that the 
 Russian Government had discovered that 
 the defendants were in Canada and was 
 taking steps, in the month preceding their 
 departure, to extradite Proskotiriakoff, 
 and that it was probable the defendants 
 had heard of this and left the Province in 
 consequence. 
 
 Held, per Mathebs, J. 
 
 1. That the facts did not bring the 
 case within Rule 201 of the King's Bench 
 Act, R.S.M. 1902, c. 40, or any of its 
 sub-rules, so that it was not a case in 
 which the statement of claim could be 
 served out of the jurisdiction. 
 
 2. It could not be said that the de- 
 fendants had committed a tort in Mani- 
 toba within the meaning of paragraph (e) 
 of Rule 201. Anderson v. Nobels, (1906) 
 12 O.L.R. 644, followed. 
 
 1 3. A court has no right to enforce a 
 personal money claim against a person 
 who is neither domiciled nor resident 
 within its jurisdiction unless he has 
 appeared to the process or has expressly 
 agreed to submit to the jurisdiction of 
 such court : Sirdar Gurdyal Singh v. Rajah 
 ofFaridkote, [1894] A. C. 670, and Emanuel 
 V. Symon, [1908] 1 K. B. 302; and, there- 
 fore, apart from Rule 202 of the King's 
 Bench Act, the possession by the defend- 
 ants of property in Manitoba gave the 
 
 Court no jurisdiction over the defendants 
 in an action in personam. 
 
 4. If evidence had been given that the 
 defendants were possessed of property 
 in Manitoba to the value of $200, it 
 would have been necessary to consider 
 whether, under Rule 202, the statement of 
 claim could be served out of the jurisdic- 
 tion without previously obtaining leave 
 to serve it: Cfullivan v. Cantelon, (1907) 
 16, M. R. 744, and also whether the 
 plaintiff's cause of action against the 
 defendants was upon a contract within 
 the meaning of that Rule. 
 
 5. The writ of attachment should be 
 set aside with costs as having been issued 
 without jurisdiction; but, as there was a 
 possibility that the plaintiff might succeed 
 in establishing a claim to the specific 
 chattels seized, an order should be made 
 for the detention of them bv the sheriff 
 until further order on condition that the 
 plaintiff should always keep the cost of 
 detaining, storing and insuring the goods 
 paid in advance so as to protect defendants 
 against loss in case the plaintiff should 
 fail to establish his claim, with leave to 
 either party to apply at any time to vary 
 or rescind the order. 
 
 6. That substitutional service of the 
 statement of claim should not be allowed 
 in a case like the present when personal 
 service out of the jurisdiction was not 
 authorized. 
 
 Fry V. Mowe, (1889) 23 Q. B. D. 395, 
 and Wilding v. Bean, [1891] 1 Q. B. 100, 
 followed. 
 
 Per Howell, C.J.A., and Perdoe, J.A. 
 The evidence showed that the defendants 
 were not, at the time of the commence- 
 ment of the action, domiciled or ordinarily 
 resident within Manitoba, and the case 
 was, therefore,^ not within paragraph (c) 
 of Rule 201, and, not being within any of 
 the other paragraphs of that Rule or 
 Rule 202, the Court had no jurisdiction 
 and the appeals should be dismissed. 
 
 Per Richards and Phippen, JJ.A. 
 
 The defendants being shown to have 
 acquired a domicile in Manitoba or to 
 have been ordinarily resident here up to 
 within about a month before the .com- 
 mencement Of the action and having 
 described themselves as of Winnipeg only 
 two weeks before, the onus was upon 
 them to show that th^y had ceased to be 
 so ordinarily resident and had, at the 
 time of the commencement of the action, 
 no intention of returning, and they had 
 not satisfied that onus, and the appeals 
 should be allowed. 
 
597 
 
 JURISDICTION IN LUNACY. 
 
 598 
 
 The Court being equally divided, the 
 appeals were dismissed without costs. 
 Emperor of Russia v. Proshouriakoff, 18 
 M.R. 56. 
 
 Appeal quashed, 42 S.C.R. 226. 
 
 10. Service of statement of claim 
 out of the jurisdiction— Kind's Bench 
 Act, R.SM. 1902, c. 40, Rule 201 (e)— 
 Tort — Fraudulent preference — Chattel mort- 
 gage given unthin the jurisdiction to non- 
 resident. 
 
 The mere taking of a chattel mortgage, 
 without taking possession of the mort- 
 gaged goods, although it may constitute a 
 fraudulent preference under The Assign- 
 ments Act, cannot be said to be a tort 
 within the meaning of paragraph (e) of 
 Rule 201 of The King's Bench Act, R.S.M. 
 1902, c. 40, and there is no jurisdiction to 
 serve a statement of claim out of the juris- 
 diction in an action against a non-resident, 
 to set aside such a chattel mortgage, 
 although given to him by a resident debtor 
 on goods within the jurisdiction. 
 
 Emperor 'of Russia v. Proshouriakoff, 
 ante, followed. 
 
 Clarkson v. Dupre, (1895) 16 P.R. 521, 
 distinguished. Anchor Elevator Co. v. 
 Heney, 18 M.R. 96. 
 
 See Administration, 4. 
 
 — Alimony, 4. 
 
 — Appeal from County Court, IV. 
 
 — Arbitration and Award, 7. 
 
 — Attachment of Goods, 3. 
 
 — C. P. R. Lands, 1. 
 
 — Conviction, 5. 
 
 — Costs, XI, 7. 
 
 — Counterclaim, 2. 
 
 — County Court, 1. 
 
 — • Criminal Law, XVII, 10. 
 
 — Crown Patent, 1. 
 
 — Foreign Judgment, 9. 
 
 — Injunction, IV, 3. 
 
 — Interpleader, I, 2. 
 
 — Liquor License Act, 12, 13. 
 
 — ■ Parliamentary Elections, 2, 3. 
 
 — Patent of Invention, 1. 
 
 — Perjury. 
 
 — Pleading, IX, 2. 
 
 — Railways, IV, 3; XI, 3, 4. 
 
 — Real Property Act, V, 9. 
 
 — Solicitor's Lien for Costs, 4. 
 
 — Surrogate Court. 
 
 — Will, III, 4. 
 
 JURISDICTION IN LUNACY. 
 
 See Lunatic, 1. 
 
 JURISDICTION OF COUNTY 
 COURT. 
 
 See County Court — Jurisdiction of. 
 
 JURISDICTION OF FOREIGN 
 COURT. 
 
 See Contract, XIV, 2. 
 
 JURISDICTION OF JUSTICES. 
 
 See Liquor License Act, 7, 8. 
 
 JURISDICTION OFiMAGISTRATE. 
 
 See Criminal Law,! II, 2; XIII, 3; 
 
 XVII, 8. H „ 
 — Summary Conviction. 
 
 JURISDICTION OF N. W. T. COURT. 
 
 See Criminal Law, XVII, 18. 
 
 JURISDICTION OF4REFEREE. 
 
 See Referee — Jurisdiction of. 
 
 JURISDICTION OF SINGLE JUDGE. 
 
 See Criminal Procedure, 2. 
 
 — Liquor License Act, 1. 
 
 — Practice, XXVIII, 3. 
 
 — Security for Costs, -II, 1. 
 
 JURY FEES. 
 
 See Practice, XII, 2. 
 
 JURY TRIAL. 
 
 I. ^Miscellaneous Cases. 
 II.j^When Ordered. 
 
599 
 
 JURY TRIAL. 
 
 600 
 
 I. MiSCELLANEOTTS CaSES. 
 
 1. Appeal from Jteterei— King's Bench 
 Act, s. 59 and Rule 682 (a) — Discretionary 
 order. 
 
 The plaintiff was a clerk in defendants' 
 store at Winnipeg and claimed damages 
 for injury received in falliag on a floor 
 which she alleged had been made sUppery 
 with oil owing to defendant's negligence. 
 Not being entitled as of right to have the 
 action tried by a jury, she appUed, under 
 sub-section (6) of section 59 of the King's 
 Bench Act, for an order for trial by jury. 
 * The Referee refused to make the order 
 and Macdonald, J., dismissed an appeal 
 to him from the Referee. 
 
 Qn appeal from the decision of Mac- 
 donald, J. 
 
 Held, per Howell, C.J.A., Richards 
 and Cameron, JJ.A., that, under sub- 
 section (o) of Rule 682 of the King's 
 Bench Act, on an appeal from an order of 
 the Referee though made in the exercise 
 of a discretion conferred upon him, the 
 Judge should consider the matter inde- 
 pendently and exercise his own discretion. 
 
 Per Pbrdde, J. A. In such a case, the 
 Judge should not reverse the order of the 
 Referee unless satisfied that that officer 
 had acted upon a wrong principle or upon 
 a wrong ground in making his order. 
 
 Per Howell, C.J.A., and Cameeon, 
 J.A. There should be an order for trial 
 by jury in this case. 
 
 Per Richards and Perdue, JJ.A. 
 The discretion of the Referee was exercised 
 properly in this case and there should be 
 no order for trial by jury. 
 
 The Court being equally divided, the 
 appeal was dismissed without costs. 
 Hewitt V. Hudson's Bay Co., 20 M.R. 320. 
 
 2. Challenging jurors. 
 
 A challenge- lies both to the array of the 
 grand jury and to the polls, as in the case 
 of a petit jury. 
 
 Semble, that the reasons for quashing 
 the panel (as for favour), which were 
 founded on the discretion of the sheriff in 
 selecting jurors, do not apply at the present 
 time, as the sheriff empanels the jury 
 from lists of selected jurors prepared for 
 him. But a substantial departure of the 
 sheriff from statutory directions might 
 lay the panel open to challenge on the 
 ground of default of the sheriff. Reg. v. 
 Anderson, T.W., 177. 
 
 3. Counterclaim— Acfeore for breach of 
 warranty — Queen's Bench Act, 1895, section 
 49. 
 
 A counterclaim is not an action within 
 the meaning of The Queen's Bench Act, 
 1895, not being a civil proceeding com- 
 menced by statement of claim, and a 
 defendant is not entitled to have his 
 counterclaim tried by a jury by virtue of 
 section 49, sub-section 1, although , such 
 counterclaim is for damages for breach of 
 warranty; nor does this constitute any 
 special ground for an order under sub- 
 section 3 for trial by jury. Case v. Laird, 
 8 M.R. 461; Woollacotty. Winnipeg Electric 
 St. Ry. Co., 10 M.R. 482, foUowed. Berg- 
 man V. Smith, 11 M.R. 364. 
 
 [See now s. 17 of c. 12 of 7 & 8 Edw. 
 VII.] 
 
 Distinguished, Griffith v. Winnipeg Elec. 
 Ry. Co., 16 M.R. 512. 
 
 4. Discretion of Judge as to mode of 
 trial. 
 
 The Court of Appeal wUl not interfere 
 with the discretion of the Judge in granting 
 or refusing an application, made under 
 sub-section (b) of section 59 of the King's 
 Bench Act, for the trial of an action by a 
 jury, unless that discretion has been exer- 
 cised upon a wrong principle, as in Jenkins 
 V. BusKby, [1891] 1 Ch. 484. 
 
 Swindell v. Birmingham Syndicate, (1876) 
 3 Ch.D. 127, and Ruston v. ToHn, (1879) 
 10 Ch.D. 565, followed. McCormick v. 
 C.P.R., 19 M.R. 159. 
 
 5. Illegal seizure — Trespass. 
 
 Under section 59 of The King's Bench 
 Act, a party complaining of an illegal 
 seizure of his goods has a right to have his . 
 action tried by a jury unless he expressly 
 waives such right. 
 
 That the act complained of might have 
 been properly characterized as a trespass 
 will not affect the right to a trial by jury, 
 for every illegal seizure is a trespass, 
 although there may be a trespass without 
 a seizure. BartlettY. House Furnishing Co., 
 16 M.R. 350. 
 
 6. Joinder of another cause of 
 action. 
 
 Under section 59 of the King's Bench 
 Act, a plaintiff suing under The Work- 
 men's Compensation for Injiiries Act has 
 a right to have the action tried by a jury 
 without an order to that effect, and he 
 does not lose that right by adding a claim 
 tor damages at Common Law independ- 
 
601 
 
 JURY TBIAL. 
 
 602 
 
 ently of the Act, though the latter cause 
 of action is one of those in which an order 
 of a Judge for a trial by jury must be 
 obtained. Schultz v. Ijyall Mitchell Co., 
 20 M.R. 429. 
 
 7. Mixed jury — Procedure to obtain at 
 trial — Ultra vires. 
 
 The prisoner, a Canadian speaking 
 French, demanded a mixed jury. There 
 were not upon the panel a suiBcient.num- 
 ber of persons qualified in the French 
 . language. Instead of fixing another day 
 for the trial and having summoned the 
 persons next upon the jury roU, the sheriff 
 called upon a person then in court, who, 
 without objection, acted as a juryman. 
 The prisoner was found guilty. Upon a 
 writ of error 
 
 Held, that the trial was a nullity and 
 that the prisoner must be committed for 
 trial. Reg. v. Levegue, 3 M.R. 582. 
 
 8. Practice in obtaining — Jury notice 
 — Withdrawal of replication in order to 
 add — Prejudice of jury against defendant. 
 
 Where by inadvertence replication is 
 filed without a jury notice, leave may be 
 given to withdraw it in order to refile it 
 with a notice of jury; and the fact that 
 the defendants allege that, owing to 
 excited feeUng, a fair trial cannot be had 
 before a jury, will not be an answer to 
 the application. Rajotte v. C.P.B., 5 M.R. 
 297. 
 
 9. Questioning defendants' witness 
 before jury as to whether the Com- 
 pany is not indemnified against loss 
 in the event of an adverse verdict — 
 
 New trial. 
 
 It is improper for plaintiff's counsel, at 
 the trial before a jury of an action by an 
 employee of a company for damages for 
 a personal injury suffered by him in the 
 course of his employment, to ask a witness 
 for the defendants if the company is 
 indemnified against loss in the event of an 
 adverse verdict. 
 
 The mere asking of such a question, 
 though the witness be not required to 
 answer it and does not answer it, is 
 sufficient to warrant the Court in setting 
 aside a verdict for the plaintiff and order- 
 ing a new trial. 
 
 Loughead v. Collingwood Shipbuilding 
 Co., (1908) 16 O.L.R. 65, 12 O.W.R. 697; 
 Coe V. Van Why, (1905) 3 Am. & Eng. 
 Ann. Cas., 552, and Cosselmon v. Dunfee, 
 (1902) 65 N.E.R. 494, foUowed. Hynd- 
 man v. Stephens, 19 M.R. 187. 
 
 10. Referee, jurisdiction of, to order 
 jury trial. ^^. , 
 
 Under Rules 27 and 29 of The King's 
 Bench Act, R.S.'M. 1902, c. 40, the 
 Referee in Chambers may exercise the 
 power of ordering the trial of an action by 
 a jury given to a Judge by sub-section (b) 
 of section 59 of the Act. Cameron v. 
 Winnipeg Elec. Ry. Co., 17 M. R. 475. 
 
 11. Special jury— Order for — Time for 
 application. , 
 
 An application for a special jury may 
 be made in Chambers, but is more proper 
 before the Assize Judge. 
 
 It is not necessary to give any reason 
 for requiring a special jury. 
 
 A plaintiff may obtain an order for a 
 special jury e:); parte. A defendant should 
 move upon summons, but not necessarily 
 before entry of the record. Molson's 
 Bank v. Robertson, 5 M.R. 343. 
 
 12. Striking out jury notice. 
 
 A jirry notice will not be struck out 
 unless there is some substantial reason 
 for it. The mere assumption, that a 
 Judge could try it better without, than 
 with, a jury is not a sufficient ground. 
 Manitoba Mortgage Co. v. Stevens, 4 M. R. 
 410. 
 
 II. When Ordered. 
 
 1. Act respecting Compensation to 
 Families of Persons Killed by Accident 
 R.S.M. 1902, c. 31, s. Z—Lorrd Campbell's 
 Act., 
 
 Section Z, of the Act respecting Com- 
 pensation to Families of Persons Killed 
 by Accident, R.S.M. 1902, c. 31, contem- 
 plates that an action by a representative 
 of a person lolled by accident against the 
 person charged with negligence may be 
 tried by a jury, and, if a jury trial would 
 have been ordered in case the person 
 injured had brought the action, then the 
 order should not be refused because the 
 person died and the personal representa- 
 tive brings the action. Marion v. Winni- 
 peg EUc. Ry. Co., 21 M.R. 757. 
 
 2. Grounds for, to be shown — What 
 is necessary to obtain order for. 
 
 In order to obtain a trial by jury, it is 
 not sufficient to shew that there are issues 
 of fact between the parties, for, by the 
 statute, issues of fact are not to be tried 
 by a jury, unless an order be made for 
 the purpose. Some ground must be 
 shewn to warrant active interference by 
 
603 
 
 JURY TRIAL. 
 
 604 
 
 making the order. Morrison v. Robinson, 
 8 M.R. 218. 
 
 Distinguished, GrifUfis v. Winnipeg 
 Eke. St. Ry. 16 M.R. 512. 
 
 3. What material is necessary to 
 obtain order for — Onus on party applying. 
 
 54 iVic, c. 1, s. 33, provides that "all 
 issues of fact iri civil cases and proceedings 
 at law shall be tried by a Judge without 
 a jury, provided that an application may 
 be made to a Judge in chambers, to have 
 the issue tried by a jury." 
 
 Held, that the onus of satisfying the 
 Judge, that the action is one that should 
 be tried by a jurjr, rather than by a Judge 
 without a jury, lies on the party making 
 the application, and an order for trial by 
 a jury should not be made unless some 
 substantial reason is shown for it. 
 
 Held, also, that an affidavit of the 
 defendant's attorney that he beheved the 
 case to be one which could more properly 
 be tried before a jury than a Judge, because 
 at the trial questions of fact would arise 
 in reference to which there would be a 
 contradiction between witnesses, was 
 immaterial in the absence of facts that 
 would lead the Judge to the same belief. 
 Case V. Laird, 8 M.R. 461. 
 
 Distinguished, Griffiths v. Winnipeg 
 Elec. St. Ry., 16 M.R. 512. 
 
 4. Action for malicious prosecution. 
 
 Since the statute 54 Vic, c. 1, s. 33, 
 which enacted that all issues of- fact in 
 civil cases, except in actions of Ubel and 
 slander, shall be tried by a Judge without 
 a jury, but provided that an application 
 may be made to a Judge in Chambers in 
 any case to have the issue tried by a jury, 
 special circumstances must be shown in 
 order to have an action for maUoious 
 prosecution tried by a jury. By the repeal 
 of the former statute the Legislature 
 showed that they considered that an 
 ordinary action for mahcious prosecution 
 should be tried by a Judge without a jury. 
 
 Harvie v. Snowden, 9 M.R. 313. 
 
 [But see, now, K. B. Act, s. 59]. 
 
 Not followed. Griffith v. Winnipeg 
 Elec. Ry. 16 M.R. 612. 
 
 6. Action for damages and negli- 
 gence — Assessment of damages. 
 
 The former pohcy of the Legislature, 
 which entitled parties to a trial by jury 
 if they wished, was changed by the Act 
 51 Vic, c 1., s. 33, and now the onus is 
 thrown upon the party who wishes a jury, 
 
 except in cases of libel and slander and 
 the other causes of action named in 
 section 49 of the Queen's Bench Act, 
 1895, of showing that the case should be 
 tried by a jiu'y and not by a Judge. 
 
 The plaintiff's claim was for damages 
 for being knocked down and injured by a 
 car of the defendants, which he alleged 
 was being, by the negligence of their ser- 
 vants, run along the street at too high a 
 rate of speed and without sufficient 
 warning; and affidavits were filed to show 
 that there would be a good deal of con- 
 flicting evidence, and difficulty in assessing 
 the damages. 
 
 Held, that no sufficient reason was 
 shown why a special order for a jury 
 should be granted. 
 
 A Judge who has jurisdiction to try the 
 issues of fact in any case may at the same 
 time assess the damages, and it is not 
 necessary to summon a jury for that 
 purpose. WooUacott v. Winnipeg Elec. St. 
 Ry. Co., 10 M.R. 482. 
 
 Followed Bergman v. Smith, 11 M.R. 
 364. 
 
 Distinguished Griffith v. Wpg. Elec. Ry., 
 16 M. R. 512. 
 
 6. Action for damages caused by 
 alleged negligence — King's Bench Act, 
 R.S.M. 1902, c. 40, s. 59. 
 
 The plaintiff's claim was for damages 
 for the loss of an arm in consequence of 
 being run over by a car of ;the defendants 
 which he claimed was gong at excessive 
 speed, without a fender and without the 
 gong being rung ta warn him. On his 
 application, under section 59 of the King's 
 Bench Act, R.S.M. 1902, c. 40, a judge 
 ordered tha|t the action should be tried by 
 a jury on the grounds that the principal 
 issues to be tried were issues of fact and 
 that I a jury would be more likely to assess 
 the proper damages in case of a verdict 
 for the plaintiff than a Judge. 
 
 Held, that the "judicial discretion 
 exercised by the Judge in this case should 
 not be interfered with. 
 
 Morrison v. Robinson, (1892) 8 M.R. 
 218; Case v. Laird, (1892) 8 M.R. 461; 
 Harvie v. Snowden, . (iSQZ) 9 M.R. 313; 
 Woollacott V. Winnipeg Electric Street Ry. 
 Co., (1895) 10 M.R. 482; and Bergman v. 
 Smith, (1896) 11 M.R. 364, discussed and 
 distinguished. Griffiths v. Winnipeg Elec. 
 Ry. Co., 16 M.R. 512. 
 
 7. Action for damages caused by 
 negligence — King's Bench Act, s. 69. 
 
605 
 
 JURY— VERDICT OF. 
 
 606 
 
 It is proper to o' der, on the application 
 of the plaintiff under section 59 of the 
 King's Bench Act, R.S.M. 1902, c. 40, 
 the trial by a jury of an action for damages 
 caused by the alleged negligence of a 
 street railway company, resulting in the 
 plaintiff being struck and injured by one 
 of the company's cars. Seymour v. 
 Winnipeg Elec. Ry. Co., 19 M.R. 208. 
 
 See Accord and Satisfaction, 2. 
 
 — Criminal Law, IX, 2; XIV. 
 
 — Evidence, 24. 
 
 — Malicious Peosecution, 5. 
 
 — Practice, IX, 1; XXVIII, 29. 
 
 — Referee, Jurisdiction of, 1. 
 
 JURY— VERDICT OF. 
 
 iSce Banks and Banking, 6. 
 
 JUSTICE OF THE PEACE. 
 
 See Election Petition, VII, 1, 2, 3, 4; 
 
 • IX, 2. 
 See Malicious Prosecution, 4. 
 — Prohibition, III, 2. 
 
 JUSTIFIABLE HOMICIDE. 
 
 See Criminal Law, XVII, 3. 
 
 KING'S COUNSEL. 
 
 See Queen's Counsel. 
 
 LACHES. 
 
 See Alimony. 
 
 — Crown Patent, S. 
 
 — ■ Deed of Settlement. 
 
 — Fraudulent Conveyance, 3. 
 
 — Homestead, 1. 
 — ■ Infant, 2. 
 
 — Injunction, III, 4. 
 
 — Interpleader, V, 3; VIII, 2. 
 
 — Misrepresentation, III, 1. 
 
 — Mortgagor and Mortgagee, IV, 1. 
 
 — Practice, XXIII, 2. 
 
 — Real Property Act, III, 8. 
 
 — Statute of Frauds, 1. 
 
 — Vendor and Purchaser, II, 3, 7; IV, 
 
 3; VI, 15. 
 
 LAND OUT OF THE JURISDICTION. 
 
 See Mechanic's Lien, X, 3. 
 
 — Mortgagor and Mortgagee, VI, 15. 
 
 — Railways, VII, 1. 
 
 LAND SCRIP. 
 
 See Replevin, 6. 
 
 I. 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 LANDLORD AND TENANT. 
 
 Distress for Rent. 
 Mortgagor and Mortgagee, 
 overholding tenant. 
 Rent Payable in Kind. 
 Other Cases. 
 
 I. Distress foe Rent. 
 
 1. Appraisement — 2 W. & M., c. 5, s. 2 
 — Damages for illegal distress. 
 
 A sale of goods upon a distress for non- 
 payment of rent is illegal under 2 W. & M., 
 c. 5, s. 2, if there has not been an appraise- 
 ment of the goods by two sworn appraisers, 
 and the tenant will be entitled to recover 
 the real value of the goods: i.e., their fuU 
 value to him, less the rent and expenses. 
 That statute is still in force in Manitoba, 
 not having been repealed in England until 
 1872 by 35 and 36 Vic, c. 92. 
 
 Rocke V. mUs, (1887) 3 T.L.R. 298; 
 Knight v. Egerton, (1851) 7 Ex. 407, and 
 Foa on Landlord and Tenant, 579, fol- 
 lowed. Dewar v. Clements, 20 M.R. 212. 
 
 2. Excessive distress — Trespass and 
 trover — Not guilty by statute — Married 
 woman — Joinder of h/ushand in tort. 
 
 Trespass or trover will not lie upon a 
 distress where there is some rent due. 
 The action should be upon the case for 
 excessive distress, or for not accounting 
 for the surplus moneys realized, or for not 
 returning the balance of goods unsold. 
 
 After distress any surplus moneys should 
 be paid to the sheriff, and unsold goods 
 returned or placed in some convenient 
 place, with notice to the tenant. 
 
 "Not guilty by statute" puts in issue 
 the tenancy as alleged. If there be a 
 variance as to the landlord alleged, an 
 amendment may be allowed if the verdict 
 be otherwise satisfactory. 
 
 Where the principle upon which the 
 jury should proceed in estiinating damages 
 
607 
 
 LANDLORD AND TENANT. 
 
 608 
 
 was not made clear to them, a new trial 
 was ordered without costs. 
 
 Per Bain, J. — It may still be permissible 
 to join a husband with his wife as plaintiff 
 in an action of tort, for damage to 
 her goods, notwithstanding the Married 
 Women's Property Act. Pellit v. Kerr, 
 5 M.R. 359. 
 
 3. Mortgagee taking possession — 
 
 Replevin — Mortgagee . 
 
 In an action of replevin, the defendant 
 avowed the taking as distress for rent. 
 
 Held, that the plea of non tenuit put in 
 issue, not merely the demise pleaded, but 
 whether the plaintiff was tenant to the 
 avowant at the time of distress. 
 
 The rule, as to a tenant not being per- 
 mitted to deny the landlord's title applies 
 only where the tenant obtained possession 
 from the landlord . Wher6 a person having 
 been in possession is persuaded to attorn 
 under circumstances which do not warrant 
 it, he may show that the rent was paid 
 without sufficient ground. 
 
 After rent became due, the lessor mort- 
 gaged the property. 
 
 Held, that the mortgagor could not dis- 
 train, because he had parted with the 
 reversion; nor could the mortgagee, because 
 the rent was not due to him. Dauphinais 
 V. Clark, 3 M.R. 225. 
 
 4. Notice of demand, etc. — Husband 
 and wife — Joinder of causes of action. 
 
 A count by tenant against landlord for 
 seizing and selling as for distress without 
 giving the notice required by 46 & 47 
 Vic, c. 45, s. 6, whereby the tenant lost the 
 difference between the value of the goods 
 and the amount realized by their sale. 
 
 Held, bad on demurrer. 
 
 Counts in trespass to the goods of a 
 husband cannot be joined with counts for 
 unlawful distress of the goods of the wife, 
 and such counts may be demurred to. 
 Vaughan v. Building & Loan Ass., 6 M.R. 
 289. 
 
 5. Rent payable in kind — Distraining 
 after six months from end of term — Liahility 
 of landlord for illegal act of bailiff. 
 
 A distress for rent may lawfully be made 
 where the tenant makes default under a 
 lease providing that, in lieu of a money 
 payment, he is to deHver to the landlord' 
 all the wheat grown upon the premises as 
 soon as it should be threshed and that the 
 landlord should sell it and retain one-half 
 the proceeds for himself and pay over the 
 balance to the tenant. 
 
 Thompson v. Marsh, (1832) 2 O.S. 389, 
 ahd Nowery v. Connolly, (1869) 29 U.C.R. 
 
 39, followed. 
 
 The distress in this case was made more 
 than six months after, but under a warrant 
 given to the bailiff four weeks before, the 
 expiration of the tenancy, and there was 
 no direct evidence that the landlord was 
 aware of the illegal act of his bailiff in 
 seizing at the time he did; but he learned 
 of the fact of seizure after it had been made 
 and before the sale, which he allowed to 
 go on without making any inquiry so far 
 as the evidence showed, and afterwards 
 accepted the proceeds of the sale. 
 
 Held) that the proper finding of fact was 
 that the landlord either ratified the 
 bailiff's illegal act with knowledge of the 
 circumstances or meant to take upon 
 himself without inquiry the risk of any 
 irregularity the bailiff might have com- 
 mitted and to adopt aU the baihff's acts, 
 and, following Levris v. Read, (1845) 13 
 M. & W. 834, that the landlord was liable 
 for the damages suffered by the tenant. 
 Dick V. Winkler, 12 M.R. 624. 
 
 6. Reversion. 
 
 The Common Law right of distress for 
 rent in arrear can only be exercised by the 
 owner of the reversion which must be 
 vested in him at the time of the distress. 
 
 Staveley v. Allcock, 16 Q.B. 636, and 
 Smith V. Torr, (1862) 3 F. & F. 505, fol- 
 lowed. 
 
 A tenant, therefore, who makes a sub- 
 lease of the property for the whole of his 
 term, without reserving to himself any 
 right of distress, cannot distrain for rent 
 in arrear due under the sub-lease, as he 
 has parted with the reversion. 
 
 The payment of rent under the sub- 
 lease does not operate as an estoppel so as 
 to confer a right of distress for subsequent 
 arrears of rent which otherwise does not 
 
 Hazeldine v. Heaton, (1883) Cab. & E. 
 
 40, followed. O'Connor v. Peltier, 18 
 M.R. 91. 
 
 7. Second distress for rent due at 
 date of first distress — Appraisement — 
 Appraisers not sworn. 
 
 After a distress for a month's rent, it is 
 not illegal to make another distress for the 
 next month's rent, although it was due 
 and in arrear at the time of the first dis- 
 tress. 
 
 Under 11 Geo. 2, c. 19, s. 19, the want 
 of the sworn appraisement required by 
 2 W. & M., sess. 1, c. 5, is only an kregu- 
 
609 
 
 LANDLORD AND TENANT. 
 
 610 
 
 larity, and the tenant can only recover 
 such special damage as he can show to 
 have resulted from it. 
 
 Lucas V. TarUton (1858) 3 H. & N. 116, 
 and Rodgers v. Parker (1856), 18 C.B. 112, 
 followed. McDonald v. Fraser, 14 M.R. 
 582. 
 
 See, however, Dewar v. Clements, 20 
 M.R. 212; No. 1, supra. 
 
 8. Action by sub-tenant for wrong- 
 ful distress— 2 W. & M., Sess. 1, u. 5, s. 5 
 — Acceleration of rent — Abandonment of 
 premises — Payment to landlord's clerk — 
 Bailiff, liability of. < 
 
 Defendants demised the premises in 
 question to one Lesk under a lease in 
 which he covenanted that he would not 
 assign or sublet without leave, also that, 
 if any of the goods and chattels of the 
 lessee should be at any time seizfed or 
 taken in execution or in attachment by 
 any creditor of the said lessee, or if the 
 lessee should attempt to abandon said 
 premises or to sell or dispose of his goods 
 and chattels so that there would not in 
 that event be, n the opinion of the lessors, 
 a sufficient distress on the premises for the 
 then accruing rent, then the current 
 month's rent, together with the rent for 
 the succeeding three months next accruing 
 should immediately become due and pay- 
 able, &c. The lease also provided that 
 the word "lessee" should include the heirs, 
 executors and administrators of the lessee, 
 also his assigns, if he should assign with 
 the consent of the lessors. 
 
 The plaintiff bought the stock in trade 
 on the premises fropi Lesk and took 
 possession, thereafter paying the rent to 
 the defendants, but there was no consent 
 to an assignment by Lesk. 
 
 Held, 1. The plaintiff was not the 
 "lessee" within the meaning of the coven- 
 ants in the lease and the defendants could 
 not justify a distress for three months' 
 accelerated rent under the covenant above 
 set forth, by reason of any seizure of the 
 goods and chattels of the plaintiff on the 
 premises or any dealing by the plaintiff 
 with such goods. ' 
 
 2. It could not be said that Lesk, the 
 lessee, had, by seUing out and turning over 
 possession to the plaintiff, attempted to 
 abandon the premises. 
 
 Mouson V. Boehm, (1884) 26 Ch.D. 405, 
 followed., 
 
 3. The payment of a month's rent by 
 plaintiff to a clerk of defendants authorized 
 to receive it and the depositing of the 
 amount to the credit of defendants in 
 
 their bank account, though without their 
 knowledge, was a good payment and 
 defendants were not justified in proceeding 
 further with a warrant of distress for that 
 rent. 
 
 4. Section 5 of 2 W. & M., Sess. 1, c. 5, 
 authorizes the recovery of double the 
 value of goods and chattels illegally dis- 
 trained and sold in an action by the owner 
 of the goods, although he may not be the 
 tenant. 
 
 5. The defendant Willis, who acted as 
 the bailiff o the defendants Harrison in 
 making the illegal distress and sale, was 
 equally liable with them under the statute 
 quoted. 
 
 Hope V. While, (1866) 17 U.C.C.P. 52, 
 followed. Choderker v. Harrison, 20 M.R. 
 727. 
 
 II. Mortgagor and Mortgagee. 
 
 1. Distress for rent — Eviction of pur- 
 chaser of mortgaged premises — Landlords 
 and Tenants Act, R.S.M. 1902, c. 93. 
 
 The purchaser of mortgaged premises 
 is not a tenant of the mortgagee or his 
 assignee and cannot be dispossessed by 
 the summary procedure provided for by 
 The Landlords and Tenants Act, R.S.M. 
 1902, c. 93, although the mortgage con- 
 tains clauses creating the relation of land- 
 lord and tenant between the parties and 
 giving the mortgagee the right to distrain 
 for arrears of interest as rent. 
 
 Neither can the mortgagee or his 
 assignee, in such a case, distrain upon 
 goods other than those of the mortgagor 
 for such arrears of interest. Chalmers v. 
 Freedman, 18 M.R. 523. 
 
 2. Excessive rent — Appeal, grounds of. 
 In an action for damages brought by the 
 
 plaintiffs against a sheriff for seizure and 
 sale of the goods of one Coulter under an 
 execut on in his hands, and refusing to 
 acknowledge the plaintiffs' claim for rent 
 due under a lease by Coulter from them 
 to an amount exceeding the value of the 
 goods, it appeared that Coulter was in 
 arrears under two mortgages to the 
 plaintiffs, and in May, 1895, signed a 
 lease of the mortgaged premises, agreeing 
 to pay a rental of $700 for a term ending 
 on the first of November of the same year. 
 The rent was made payable in advance, 
 on the first day of January, 1895, and was 
 shown to be about three times the rental 
 value of the property for a year. Besides 
 this, other circumstances were proved 
 tending to show that the lease had been 
 
611 
 
 LANDLORD AND TENANT. 
 
 612 
 
 procured by the manager of the plaintiffs 
 with a view of preventing the execution 
 creditors of Coulter getting anything out 
 of his crops for that year, and that it was 
 not the intention of the parties to create a 
 real tenancy between them. 
 
 Held, following Hobbs v. Ontario Loan 
 and Debenture Co., 18 S.C.R. 483, that the 
 lease relied upon by the plaintiffs could 
 not be deemed to have been intended as a 
 real bona fide one, and that the relation of 
 landlord and tenant was not validly 
 createdthereby so as to affect third parties. 
 
 Held, also, that a party appealing from 
 a County Court should be confined to the 
 grounds stated in his prsecipe to set the 
 case down for appeal under section 319, 
 s-s. 2, of the County Courts Act, as 
 amended by 59 Vic. c. 3, s. 2, and should 
 not be allowed to urge any other grounds 
 without consent or leave of the Court or 
 a Judge. Imperial Loan & Inv. Co. v. 
 Clement, Be Coulter, 11 M.R. 428. 
 
 3. Excessive rent. 
 
 ' The facts in this case were similar to 
 those in the preceding case except that 
 the lease relied on bore date 21st Decem- 
 ber, 1894, and purported to let the land 
 until 1st November, 1895, at a rental of 
 $705, payable 1st January, 1895, and that 
 evidence was given that the plaintiffs had 
 insisted on the lease being signed on pain 
 of eviction and sale of the property, and 
 there was no evidence that the plaintiffs 
 had notice of Murray's financial diffi- 
 culties. 
 
 Held, KiLLAM, J., dissenting, that the 
 lease was void against execution creditors 
 on account of the excessive amount fixed 
 for the rent: Hobbs v. Ontario Loan & ■ 
 Debenture Co., 18 S.C.R. 483, followed. 
 
 Per KiLLAM, J. The circumstances 
 showed that the plaintiffs bona fide 
 intended to make a lease and Murray to 
 accept the position of tenant at the 
 rental named, and the lease should be held 
 to be valid notwithstanding the excessive 
 amount of rent provided for. Imperial 
 Loan & Inv. Co. v. Clement, Re Murray, 
 11 M.R. 445. 
 
 4. Landlord's claim for rent when 
 goods seized under execution — 8 Anne, 
 c. 14, s. 1 — Lease by mortgagee to mortgagor 
 in possession — Excessive rent. 
 
 Interpleader issue as to the crops grown 
 on the lands of Stevenson, the execution 
 debtor, which had been seized by the 
 sheriff under the defendant's writ of 
 execution. 
 
 The plaint ff was a mortgagee of the 
 land and had taken from Stevenson, the 
 mortgagor in possession, a lease reserving 
 a rent of two-thirds of the crops to secure 
 past indebtedness and a further advance, 
 and he claimed the right, under 8 Anne, 
 c. 14, s. 1, to have the year's rent paid by 
 the sheriff out of the crops seized. 
 
 . Held, that to entitle a landlord to such 
 right there must be a real lease and the 
 rent reserved must be a real bona fide rent 
 and not an excessive one, and there should 
 be shown an intention of the parties to 
 create a real tenancy at a real rent and 
 not merely, under color and pretence of a 
 lease, to give the mortgagee additional 
 security, and that the verdict should be 
 against the plaintiff on the issue in this 
 case. 
 
 Hobbs V. Ontario Loan & Debenture 
 Co., (1890) 18 S.C.R. 483, and Imperial 
 Loan V. Clemerd, (1896) 11 M.R. 428, fol- 
 lowed. Stikeman v. Fummerion, 21 M.R. 
 754. 
 
 III. OVERHOLDING TENANT. 
 
 1. Color of right — Summary proceed- 
 ings. 
 
 In answer to a summary proceeding ■ 
 under the Landlords and 'Tenants Act, 
 R.S.M. 1902, c. 93, to recover po&ession 
 of the premises in question, which were 
 held under a written lease creating a 
 tenancy from week to week, the tenant 
 gave evidence tending to show that agents 
 of the landlords had, prior to and at the 
 time of the execution of the lease, agreed 
 and promised verbally that the tenant 
 would not be required to give up possession 
 until the landlords would build on the 
 land. This was denied by one -of the 
 agents and the tenant admitted that said 
 agent had refused to put such a term in 
 the lease although requested to do so. 
 
 Held, that the alleged promise, if 
 proved, was of too indefinite a character 
 to support the contention of the tenant 
 that he was not holding over without color 
 of right. 
 
 Price V. Guinane, (1889) 16 O.R. 264; 
 Gilbei-t V. Doyle, (1874) 24 U.C.C.P. 71, 
 and Wright v. Mattison, (1855) 59 U.S.R. 
 50, followed. C. P- R. v. Lechtzier, 14 
 M.R. 566. 
 
 2. Demand in writing unsigned — 
 
 Service of copies annexed to notice under 
 section 5 — Preliminary objections. 
 
 In proceeding for an order for possession 
 under The Overholding Tenants Act, 
 R.S.M. , c. 112, the demand in writing 
 
613 
 
 LANDLORD AND TENANT. 
 
 614 
 
 served by the landlord under section 3 of 
 the Act requiring the tenants to go out of 
 possession was unsigned, but was other- 
 wise sufficient in form. When it was 
 served, its purport was verbally explained 
 to the tenants who were told that it was 
 from the landlord's agent, and one of 
 them then went to see the latter about it. 
 
 Held, that the demand was sufficient 
 under the circumstances, though unsigned. 
 
 Morgany.Leach, (1842) 10 M. & W. 558, 
 followed. 
 
 Duririg the hearing it was objected that 
 the copies served with the notice of the 
 application as requii-ed by section 5 were 
 not annexed to the notice. 
 , Held, that delivery of the copies with 
 the notice was probably sufficient com- 
 pliance with the Act, but at any rate the 
 objection should have been taken as a 
 preliminary objection. Re Sutherland, 
 Landlord, and Portigal, TerMui, 12 M.R. 
 543. 
 
 3. Forfeiture for breach of covenant 
 
 — Summary proceedings to evict — Landlords 
 and Tenants Act, R.S.M. 1902, c. 93, ss. 15 
 and 17, as amended by 3 and iEdw. VII, c. 
 29, ss. 1, 2. 
 
 This was an application by way of 
 summary proceedings under sections 11-17 
 of the Landlords and Tenants Act, R.S.M. 
 1902, c. 93, as amended by 3 & 4 Edw. 
 VII, c. 29, ss. 1, 2, to recover possession of 
 a hall let to defendants for five years, from 
 1st November, 1901, at a rental of $15 
 per month. The lease was in writing 
 under seal, and the lessees by it covenanted 
 that they would not permit the hall to be 
 used for the purposes of dancing, except 
 to lodges renting, the haU, and that any 
 breach of that covenant should at once 
 at the option of the lessor operate as a 
 forfeiture of the lease. 
 
 The lessees having rented the hall to 
 five young men not connected with any 
 lodge for the holding of a, dance, the 
 lessor gave them a notice declaring the 
 lease to be forfeited and demanded 
 possession. 
 
 He d, following M ore v. Gillies, (1897) 
 28 O.R. 358, that, under the statute as 
 amended, the Judge can now try the right 
 of the tenant to hold over, and that 
 defendants had forfeited the lease, and 
 tha , a writ of possession should be issued 
 in the landlord's favor. Ryan v. Turner, 
 14 M.R. 624. 
 
 4. Notice to quit — Monthly tenancy — 
 Landlord and Tenants Act, R.S.M. 1902, 
 
 c. 93, ss. 11-17 — Summary proceedings to 
 recover possession. 
 
 1. Where a lease expressly provides that 
 the tenancy created by it shall be a 
 monthly tenancy, the fact that it also 
 provides what rent shall be paid for each 
 of sixteen future months, and more for 
 some months than for others, will not 
 enlarge the rights of the t nant ii;i any 
 way, and the landlord may terminate the 
 tenancy at the expiration of any month 
 by giving a month's notice. 
 
 2. A notice to quit signed by one of two 
 owners of the property with the approval 
 of the other, such approval being known 
 to the tenant, will be sufficient, although 
 not expressed to be on behalf of anyone 
 except the person g ving it. 
 
 Aslin V. Summersett, (1830) 1 B. & Ad. 
 135; Foa on Landlord and Tenant, 560, fol- 
 lowed. 
 
 3. To put an end to a tenancy at the 
 end of May, a notice'served on 30th April 
 is good, although it be erroneously dated 
 1st May. 
 
 4. A notice to quit on or before the 
 anniversary of the commencement of the 
 tenancy is good: Sidebotham v. Holland, 
 [1895] 1 Q.B. 378; although a notice to 
 quit on the last day of the tenancy would 
 also be good. Burrows v. Michelson, 14 
 M.R. 739. 
 
 5. Tenancy from year to year — Con- 
 tract to be implied when tenant holds over 
 after expiration of term under lease. 
 
 When a tenant holds over after the 
 expiration of the term and nothing is 
 agreed on as to the terms of the new 
 holding, that new holding is not of ne- 
 cessity to be on the same terms as the 
 former, but the landlord may be awarded 
 an increased rent if there are c rcumstances 
 to show that such was expected by him 
 and that such expectation was known to 
 and not repudiated by the tenant. 
 
 Elgar v. Watson, (1842) 1 Car. & M. 
 494, followed. 
 
 In such a case the tenant was notified 
 in writing within a month that the rent 
 would be increased after another month 
 and paid two months rent at the increased 
 rate without objection. 
 
 Held, that she was liable for rent at 
 such increased rate for the remaining 
 months of her occupancy, without de- 
 ciding whether a new tenancy from year 
 to year had been created or not. Winni- 
 peg Land and Mortgage Corp. v. Witcher, 
 15 M.R. 423. 
 
615 
 
 LANDLORD AND TENANT. 
 
 616 
 
 IV. Rent Patabie in Kind. 
 
 1. Grain grown on farm leased to 
 execution debtor— BiUs of Sale and 
 Chattel Mortgage Act, R.S.M. 1902, c. 11, 
 s. 39 — Seizure of equitable interest under 
 execution — Execution creditor. 
 
 Interpleader issue between an execution 
 creditor and the claimant of a quantity 
 of grain seized in stack, unthre.hed. 
 
 The claimant let to the execution 
 debtor the farm on which the grain had 
 been grown by an indenture reserving as 
 
 rent "the share or portion of the 
 
 whole crop which sha 1 be grown upon 
 the demised premises as hereinafter set 
 forth," and the lease provided that the 
 lessor might retain from the share of the 
 crop that was to be delivered to the lessee 
 a sufficient amount to cover taxes and to 
 repay advances and other indebtedness; 
 that the lessee, immediately, after thresh- 
 ing, should dehver the whole crop, 
 excepting hay, in the name of the lessor, 
 at an e evator to be named by the lessor; 
 that all crops of grain grown upon the 
 said premises should be and remain the 
 absolute pi^operty of the lessor until all 
 covenants, conditions, provisoes and agree- 
 ments therein contained should have been 
 fuUy kept, performed and satisfied; and 
 that the lessor should deliver to the lessee 
 two-thirds of the proceeds of the crop to 
 be stored in the elevator, less any sum 
 retained for taxes, advances, indebtedness 
 or guaranties previously mentioned. 
 
 The grain in question had, until its 
 seizure under the plaintiff's execution, 
 remained on the farm in the possession of 
 the lessee. The claimant claimed it as • 
 owner under the terms of the lease, and 
 not for rent. 
 
 Held, 1. That the lease did not operate 
 to prevent the lessee from^ ever having 
 any property in the grain to be grown. . 
 
 2. That, even if the legal ownership of 
 the grain was to be in the lessor, it was 
 still, as to two-thirds, held for the benefit 
 of the lessee subject to the lessor's charge 
 for taxes and advances, &c., and the 
 lessee had an equitable interest in it, and 
 the lessor's lien or charge would be void 
 under the Bills of Sale and Chattel 
 Mortgage Act, now chapter 11, R.S.M. 
 1902, s 39, as being a charge upon crops 
 to be grown in the future. 
 
 3. That the interest of the lessee in 
 the grain, whether legal or only equitable, 
 was subject, under section 182 of The 
 County Courts Act, R.S.M. 1902, c. 38, 
 to seizure and sale under execution, and 
 
 that the claimant's interest could not 
 prevail over that of the plaintiff. Camp- 
 bell V. McKinnon, 14 M.R. 421. 
 
 2. Implied covenants in lease — 
 
 Liability for failure to raise crops on leased 
 farm. 
 
 In April, 1898, the plaintiff leased by 
 deed to defendant's husband a half 
 section of land for five years at a rental 
 of ons-third of the crop grown on the pre- 
 mises yearly. The lease was on a printed 
 form of a farm lease and contained 
 covenants by the lessee that he would 
 during the teim cultivate such part of the 
 land as was then or should thereafter be 
 brought under cultivation in a good, 
 husbandlike and proper manner, and 
 would plow said land in each year four 
 inches deep and crop the same during the 
 term in a proper farmer-like manner. 
 Afterwards a new lease of the same land 
 was made by deed, ante-dated so as to 
 bear the same date as the first one, sub- 
 stituting the defendant as lessee instead 
 of her husband. This was done, as 
 found by the trial Judge, at the request 
 of the defendant's husband who had 
 reason to fear theiaction of a creditor in 
 case the lease remained in his name, and 
 it was intended that the new lease should 
 be a duplicate of the other in all respects 
 except as to the name of the lessee. The 
 new lease, by mistake of the soMcitor who 
 prepared it, was written on a printed 
 fbrm of "statutory lease," not contaimng 
 the special clauses applicable to farm 
 land. It provided for the same rental as 
 the other lease, payable in the same way 
 and at the same times, and contained the 
 same covenant to plow 'four inches deep 
 in each year written into it, but no express 
 covenants to cultivate or crop the land. 
 
 By the end of 1901 the cultivated 
 portion of the farm was 117 acres, but in 
 1902 the defendant only ploughed and 
 cult vated four acres out of the 117, and 
 weeds grew up all over the rest. 
 
 The plaintiff's claim was for damages 
 for breach of covenants to cultivate, crop 
 and plough in 1902, which he contended 
 should be implied in the lease to defendant 
 under the circunistances. 
 
 In his statement of claim he had asked 
 for a reformation of the lease by including 
 the covenants to cultivate, and crop that 
 were in the first lease, but abandoned that 
 claim on the argument. 
 
 Held, following Mclntyre v. Belcher, 
 (1863) 14 C.B.N.S. 654; The Moorcock 
 (1889) 14 P.D. 68, and Hamlynv. Wood 
 
617 
 
 LANDLORD AND TENANT. 
 
 618 
 
 [18911 2 -Q.B. 491, that such covenants 
 should, under the circumstances, be 
 implied in the lease to defendant, and 
 that she was liable for the estimated 
 value of one-third of the crop that would 
 probably have been produced on the 117 
 acres if it had been cropped in that year, 
 and for the deterioration in value of the 
 land on account of defendant having 
 allowed it to grow up with weeds. Duns- 
 ford V. Webster, 14 M.R. 529. 
 
 V. Other Cases. 
 
 1. Liability of landlord to tenant for 
 condition of premises — Damage suffered 
 by tenant of part of building caused by 
 defective condition of another part. 
 
 The plaintiff was tenant of a store on 
 the ground floor of a building owned by 
 the defendant and sued for damages , to 
 her goods caused by rain water entering 
 by an unglazed fanlight over a door at the 
 end of a hall extending from the head of a 
 stairway leading to the second floor of the 
 building. The water, flowing over the 
 floor above the plaintiff's store, came 
 through the ceiling, and caused plaster to 
 fall, which damaged the plaintiff's goods. 
 
 The defect complained of existed at the 
 time of the demise to the plaintiff. 
 
 Held, following Humphrey v. Wait, 
 (1873) 22 U.C.C.P. 580; Colebeck v. 
 GirdUrs' Co., (1875) 1 Q.B.D. 234 and 
 Carstairs v. Taylor, (1871) L.R. 6 Ex. 217, 
 that the defendant was not liable. 
 
 MiUer v. Hancock, [1893] 2 Q.B. 177, 
 distinguished on the ground that, in that 
 case, the defect was the result of wear and 
 tear and arose after the demise. 
 
 A tenant taking part of a building in 
 other, parts of which are defects likely to 
 result in damage to him should examine 
 the premises and contract for the removal 
 of such defects as are apparent, otherwise 
 he will have no remedy afterwards against . 
 the landlord for damages caused by such 
 defects. Rogers v. SoreU, 14 M.R. 450. 
 
 2. Notice to quit — Mon'hly tenaricy — 
 Acquiescence in invalid notice — Waiver — 
 Meaning of "by'' a certain date. 
 
 When a monthly tenancy expires on the 
 last day of the calendar month, a notice to 
 quit must be served not later than that 
 day in order to put an end to the lease at 
 the end of the next calendar month. A 
 notice to quit which requires a monthly 
 tenant to Vacate "by" the 30th of April, 
 even if served on 31st of March, would not 
 be sufficient, as it does not allow tlhe 
 
 tenant the whole of the last day of his 
 term. In such a case the word "by" 
 means "not later than," or "as early as." 
 
 A valid notice to <juit cannot be waived 
 by the party giving it, so as to restore the 
 tenancy determined by it, except by acts 
 or conduct of both parties, which amount 
 to the creation of a new tenancy; and, 
 conversely, when an insufficient notice to 
 quit has been given, the mere acquiescence 
 in it of the party receiving it cannot have 
 the effect of putting an end to the tenancy. 
 
 Doe d. Murrell v. Milward, 3 M. & W. 
 328, and Bessel v. Landsberg, 7 Q.B. 638, 
 followed. 
 
 Cartwright v. McPherson, 20 U.C.R. 251, 
 dissented from. Re Magee, Landlord, and 
 Smith, Tenant, 10 M.R. 1. 
 
 3. Surrender of lease — Forfeiture of 
 lease for breach of covenant — Eviction by 
 notice. 
 
 The plaintiff was tenant to defendant 
 of a farm under a lease for three years, 
 dated in March, 1903. The lease con- 
 tained a covenant by plaintiff to buy 
 three horses from defendant and to 
 pay for them by breaking and cleaning of 
 stone on the farm at a price per acre, and, 
 in default, to pay in cash at the time of 
 threshing. 
 
 About the first day of December fol- 
 lowing, pla'ntiff and defendant met and 
 discussed terms on which plaintiff would 
 abandon the lease and give up possession 
 of the premises. Plaintiff told defendant 
 that he was embarrassed financially and 
 that; unless defendant would agree to 
 guarantee the wages of the men for the 
 next year's work and the store bills to be 
 paid, he would be unable to go on with 
 the working of the farm under the lease. 
 The defendant seemed to be anxious to 
 assist the plaintiff in this respect, and 
 offered to guarantee the store biUs up to 
 1125, but refused to guarantee the men's 
 wages. Negotiations having failed, de- 
 fendant then told plaintiff that he would 
 cancel the lease for non-fulfilment of some 
 of the covenants. The plaintiff said he 
 wanted that in writing, and the next 
 morning defendant gave plaintiff the 
 following written notice: "Take notice 
 that I have this day cancelled lease of my 
 farm to you on the grounds of non- 
 fulfilment of terms of said lease." On the 
 same day the plaintiff vacated the prem- 
 ises, after selling to defendant some oats, 
 barley and feed he had there. Defendant 
 resumed possession at once. A few days 
 afterwards plaintiff came back and sold 
 
619 
 
 LAPSE OF LEGACY. 
 
 620 
 
 to defendant his poultry and then left the 
 farm altogether. 
 
 Held, that there had been no surrender 
 of the lease and that defendant was liable 
 in damages as for an eviction of the 
 plaintiff. 
 
 Defendant also claimed that he was 
 entitled to terminate the lease for breach 
 of the covenant referred to. As to this, 
 it appeared that plaintiff had done some 
 of the wijrk stipulated for and that there 
 was a dispute over their accounts, but 
 that at all events there was not more than 
 about $38 due on the horses. 
 
 Held, that there was not such a clear 
 breach of the covenant as to entitle the 
 defendant to declare the lease forfeited on 
 that ground. Watson v. Moggey, 15 M.R. 
 241. 
 
 See Chattel Mortgage, II, 3; V, 3. 
 
 — Covenants^ 2. 
 
 — ■ Distress for Rent, 2. 
 
 — ■ Fixtures, 8. 
 
 ■ — • Garnishment, VI, 8. 
 
 — Mortgagor and Mortga^gee, VI, 4. 
 
 — Negligence, VIII, 3. 
 
 — Pleading, II, 1. 
 
 — Sheriff, 2. 
 
 — Vendor and Purchaser, IV, 3; VI, 4. 
 
 LAPSE OF LEGACY. 
 
 See Will, III, 6. 
 
 LAPSED APPLICATION. 
 
 See Practice, XXVIII, 18. 
 
 LAWS IN FORCE IN MANITOBA. 
 
 See Constitutional Law, 8, 9, 10. 
 — Descent of Land. 
 
 LAW SOCIETY. 
 
 Admission o! retired Judge — Fees — 
 Visitors. 
 
 The Law Society had no power in 
 January, 1883, to exact admission fees 
 from a retired Judge of the Coyrt of 
 Queen's Bench. 
 
 The Judges of 'the Court of Queen's 
 Bench are,vi&itors of the Law Society. 
 
 As such visitors they have the power 
 to visit the Society upon every matter in 
 respect of which their Act of Incorporar- 
 tion gives them the power to act". 
 (Taylor, J., dissenting.) Be Miller, 3 
 M.R., 367. 
 
 LAW STAMPS. 
 
 1. Affidavit — Papers annexed to affi- 
 davit. 
 
 Papers annexed to an affidavit are not 
 fihngs distinct from the affidavit, and do 
 not require to be stamped. Cose v. 
 Stephens, 6 M. R. 552. 
 
 2. Constitutional law — Taxation. 
 The imposition of fees by law stamps is 
 
 undoubtedly an indirect tax. 
 
 Under s-s. 2 of s. 92 of the B. N. A. 
 Act the Provincial Legislature has not 
 the power to impose such a tax in order 
 to rais^ a revenue for the general purposes 
 of the Province. Dulmage v. Douglas, 3 
 M.R. 562. 
 
 3. Constitutional law — Taxation. 
 The imposition of stamps upon law 
 
 proceedings is ultra vires. The statute 49 
 Vic, c. 50, mfikes no difference in this 
 respect. Dulmage v. Douglas, 4 M.R. 495, 
 
 4. Constitutional law ^ Provincial 
 Legislature — Taxation — Construction o/ 
 statvie. 
 
 A provincial statute provided that "all 
 duties and fees of office payable in law 
 stamps on any search, filing, pleading, 
 ... in virtue of any statute, rule or 
 order, now or hereafter in force, are 
 hereby declared to be a direct tax and 
 duty imposed upon the party directed to 
 pay or paying the same, in order to the 
 raising of a revenue for provincial pur- 
 poses, and shall not be in any way taxable 
 or recoverable as costs by the said party 
 from any other party or person whatso- 
 ever." 
 
 Held, 1. That the Act was intra vires of 
 the Legislature. 
 
 2. The words "now or hereafter in 
 force" read as "which now or hereafter 
 have been enacted or made and remain 
 unrepealed." Crawford v. Duffield, 5 M. 
 R. 121. 
 
621 
 
 LEADING QUESTIONS. 
 
 622 
 
 6. Jury fee. 
 
 The imposition of a fee of $12 in stamps 
 upon filing a jury notice is ultra vires. 
 Plummer Wagon Co. v. Wilson, 3 M.R. 68. 
 
 See Constitutional Law. 
 
 LEADING QUESTIONS. 
 
 See Evidence on Commission, 4. 
 
 LEASE. 
 
 See Pleading, XI, 1. 
 
 LEASE BY MORTGAGOR. 
 
 LEASEHOLD INTEREST. 
 
 See Municipal Elections, 6. 
 
 LEAVE TO APPEAL. 
 
 See Appeal fkom Okder, 4. 
 
 — Appeal to Privy Council, 1, 2. 
 
 — Appeal to Supreme Court, 5. 
 — ' County Court, II, 1. 
 
 LEAVE TO DEFEND. 
 
 See Practice, XIX, 3; XX, B, 4, 5, 7. 
 — Summary Judgment, I. 
 
 LEGACY. 
 
 See Will, II. 
 
 LIABILITY OF SEVERAL TORT 
 FEASORS. 
 
 See Jojnt Tort Feasors. 
 — Negligence, VII, 5. 
 
 LIBEL. 
 
 1. AfEidavit or afEirmation under 
 Newspaper Act — Authority of commis- 
 sioner — Truth of contents of affirmation — 
 Pleading — Special damages — Benefit of an 
 Act. 
 
 50 Vic. (M.) c. 23, enacts that no person 
 shall publish a newspaper until "an 
 affidavit or affirmation . . . shall have 
 been delivered to the prothonotary." 
 .... The affidavit or affirmation was 
 to set forth truly certain particulars, and 
 power was given to any justice ,of the ■ 
 peace or commissioner to take the affidavit 
 or affirmation. 
 
 Held, that an affirmation was sviffioient 
 although made by a person not,, entitled 
 to substitute an affirmation for an affidavit. 
 
 Such an affirmation was made by the 
 managiog director of a company. In the 
 absence of evidence as to his duties, 
 
 Held, that the affirmation was sufficient. 
 
 The affirmation was entitled, "In the 
 matter of The Manitoba Daily Free Press 
 (a daily newspaper) and of chapter 23 of 
 the statutes of Manitoba passed in the 
 fiftieth Victoriae;" conmienced, "I, W. F. 
 
 L., of , journalist, do solemnly 
 
 declare and affirm;" and concluded, "and 
 I make this solemn declaration, con- 
 scientiously believing the same to be true, 
 and by virtue of 'The Act respecting Extra 
 Judicial Oaths.' " The commissioner's 
 certificate was as follows: "Solemnly 
 declared and affirmed before me at the 
 City of Winnipeg, in the County of 
 Selkirk, this 19th day of December, A.D. 
 1887, John B. McKilligan, a commissioner, 
 &c." 
 
 The authority of the commissioner to 
 take the affirmation was derived, not 
 from the Act respecting Extra Judicial 
 Oaths, but from the Act above quoted or 
 49 Vic. (M.) c. 23. 
 
 Held, that the affirmation was, never- 
 theless, valid. 
 
 There was no proof that the person 
 before whom the affirmation was taken 
 was a commissioner. 
 
 Held, that the onus of proof was on the 
 person asserting the lack of authority. 
 
 There was no proof of the truth of the 
 affirmation. 
 
 Held, that such proof was unnecessary. 
 
 The Act 50 Vic. (M.) c. 22, provided 
 that, "Except in cases where special 
 damages are claimed, the plaintiff in all 
 actions for hbel in newspapers shall be 
 required to prove either actual maUce or 
 culpable negUgence in the publication of 
 
623 
 
 LIBEL. 
 
 624 
 
 the libel complained of." And the Act 
 50 Vic. (M.) c. 23, provided that, "No 
 person . . . who has . . . ' . not com- 
 plied with the provisions of this Act shall 
 be entitled to the benefit of any of the 
 provisions of the" other Act. 
 
 Held, 1: That it was not necessary to 
 plead compliance with chapter 23 in 
 order, upon the trial, to obtain the 
 benefit of chapter 22. 
 
 2. That "cases where special damages 
 are claimed" means not merely claimed 
 in the declaration, but also by evidence at 
 the trial. 
 
 3. Allegations of loss of business are 
 allegations of general damages only. 
 Where special damages are claimed the 
 names of the customers whose business 
 has been lost must be set out. Ashdown 
 v. Manitoba Free Press Co., 6 M.R. 578. 
 
 Appeal dismissed, 20 S.C.R. 43. 
 
 2. Corporation. — Malice. 
 
 The manager of one branch of the 
 defendant company wrote certain letters 
 ,to another branch, which might have 
 constituted a libel on the plaintiff. There 
 was no evidence that the corporation, or 
 the directors, or the managing board 
 authorized, or had any knowledge of the 
 letters being written. 
 
 Held, that the defendants were not 
 liable. 
 
 Qumre — Can a corporation be guilty of 
 malice? Freeborn v. Singer Sewing Ma- 
 chine Co., 2 M.R. 253. 
 
 3. Costs in libel action when verdict 
 for nominal damages only — King's 
 Bench Act, Rule 926. 
 
 When the jury in an action for libel 
 finds a verdict for plaintiff with only one 
 dollar damages, the defendant should not 
 be ordered to pay costs. Manitoba 
 Farmers' Hedge & Wire Fence Co. v. Stovel 
 Co., 14 M.R. 55. 
 
 [But see, now, s. 3 of c. 12 of 7 & 8 
 Edward VII, Shillinglaw v. Whittier, 
 19 M.R. 149, and Davis v Wright, 21 
 M.R. 716.) 
 
 i. Fair comment — Embarrassing plea 
 ■ — Justification. 
 
 To a count for libel the defendants 
 pleaded as a second plea, in-effect, that, 
 before and at the time of the publ.cation 
 of the alleged libel, great public interest 
 was felt in the subject matter thereof, that 
 it -^as much discussed in newspapers, that 
 the' defendants were proprietors of a public- 
 
 newspaper, and the words complaiiied of 
 were part of an editorial article and were 
 fair comment on the said matters of great 
 public interest, and were published bona 
 fide and without malice. 
 
 Upon an application to strike out this 
 plea as embarrassing. 
 
 Held, that the plea was not embarrass- 
 ing, and might be pleaded along with the 
 general issue. Martin v. Manitoba Free 
 Press Company, 7 M.R. 413. 
 
 5. Fair comment — Defamation — Ques- 
 tions for jury — Admissibility ' of evidence in 
 rebuttal — Weight of evidence — Wrongful re- 
 jection of evidence. 
 
 In an action of hbel against a newspaper 
 publishing company, the declaration 
 alleged that the defendant , Company 
 printed and published of the plaint ff the 
 following words: "Another disgraceful 
 piece of business which has never yet been 
 explained, was the 'Celebrated $50J a mile 
 charge, which, had it not been for the 
 watchfulness of the Free Press, would have 
 put $90,000 into the promoters' pockets, 
 and everybody knows that the Attorney- 
 General was the principal promoter," 
 meaning, as alleged in the innuendo, that 
 the plaintiff, who was the Attorney- 
 General of Manitoba, procured the Prov- 
 ince to enter into a contract with the 
 N. P. & M. Ry. Co. for raising a large 
 sum of money for the Company, "a 
 portion of which was to bs dishonestly 
 and corruptly received by the plaintiff for 
 his own use and benefit, to the great 
 detriment of the Province." To this the 
 defendants pleaded not guilty, and fair 
 comment on matters of great pubhc 
 interest. 
 
 At the trial the jury brought in a 
 general verdict for the defendants. When 
 the verdict was announced, the learned 
 Judge, who had left certain questions to 
 the jury, said: "Have you anything to 
 say as to any of the questions? Do you 
 find whether the publication has the 
 meaning ascribed to it by the plaintiff?" 
 To this the foreman replied, "We did not 
 consider that at all. We found the 
 article complained of was a fair comment 
 on a matter q| public interest, but the 
 jury, while givmg the verdict, desire to 
 state that it would have been better if 
 more temperate language had been used," 
 The learned Judge then said, "If it 
 imputed a specific act of misconduct to 
 him (the plaintiff) it could not be fair 
 comment, you understand that, do you?" 
 To this the foreman replied, "I think we 
 
625 
 
 LIBEL. 
 
 623 
 
 understood your Lordship's directions 
 thoroughly." 
 
 Upon a motion for a new trial, 
 
 Held, (DuBDc, J., dissenting). That, if 
 ' the publication charged the plaintiff with 
 what the innuendo alleged it did, viz., a 
 specific act of misconduct, it could not be 
 fair comment unless the jury found the 
 charges to be truaand, as, from the answers 
 given by the foreman, it was clear that the 
 jury did not consider whether or not the 
 words complained of had Jhe meaning 
 ascribed to them in the nnuendo, there 
 should be a new trial. 
 
 Campbell v. SpoUiswoode, 3 B. & S. 776, 
 and Davis v. Shepstone, 11 App. Cas. 187,. 
 followed. 
 
 Per Taylob, C.J., and Bain, J. Under 
 a plea of fair , comment, when there is no 
 plea of justification on the record, the 
 defendant may prove that the facts com- 
 mented on are true, but he may not adduce 
 evidence to show that charges of specific 
 misconduct or dishonesty he has made are 
 true. 
 
 Per Taylor, C.J. The jury either mis- 
 understood or disregarded the charge of 
 the learned Judge. 
 
 Per DuBDC, J. The jury thoroughly 
 understood the learned Judge's directions 
 and had a perfect right to disregard the 
 questions and bring in a general verdict. 
 
 The plaintiff, in his case in chief, proved 
 the publication, and called a witness who 
 proved that the plaintiff was acting as 
 Railway Commissioner and his signatme 
 to a contract between the Government 
 and the Northern Pacific and Manitoba 
 Railway Company, and he also said that 
 public discussion over this contract led 
 him to apply the language of the alleged 
 libel to a particular clause in that contract, 
 and there was nothing else to which it 
 could, n his mind, be attributed. The 
 defendants called witnesses to prove the 
 truth of the charges. The plaintiff then 
 tendered in rebuttal the evidence of two 
 witnesses to disprove the truth of these 
 charges and the evidence was rejected. 
 
 Per Taylor C!J. This evidence was 
 improperly rejected, as it was not gone 
 into in the case in chef and was proper 
 rebuttal evidence, and there should be a 
 new trifil on that ground. 
 
 Per DuBDC, J. This evidence should 
 have been brought in the case in chief and 
 not in rebuttal. 
 
 Per DuBuc, J., also. Even if the' evi- 
 dence should in strictness have been 
 received, still that alone would not be 
 sufficient, but the plaintiff must show 
 
 that, if it had been received, the jury 
 would have come to a different conclusion. 
 Per Taylor, C.J., and Duboc, J. In 
 an action of libel the Court will rarely 
 grant a new trial on the ground of weight 
 
 ■ of evidence, and this is especially the case 
 where the question for the jury was 
 whether the matter complained of was, 
 or was not, fair comment on the acts of a 
 public man. Martin v. Manitoba Free 
 
 I Press Co., 8 M.R. 50. 
 
 Appeal dismissed, 21 S.C.R. 518. 
 
 6. Proof of malice to rebut defence 
 of privilege — Evidence of falsehood of libel 
 — Application for new trial because ' of 
 alleged misdirection in Judge's charge -to 
 jury — Uncomplimentary arid prejudicial 
 references to one party in Judge's charge. 
 
 1. At the trial of a libel action where the 
 truth of the libel was not in issue, evidence 
 showing that the statements complained 
 of were false to the knowledge of the 
 defendant was properly admitted for the 
 purpose of showing malice in the defendant 
 and' rebutting the defence of privilege. 
 
 2. A new trial will not be granted 
 because the trial Judge in his charge to the 
 jury commented strongly upon the facts 
 adduced to show such falsity, on the 
 ground that the jury was thereby misled 
 as to the ssue to be tried, if it appears 
 that in the same charge he clearly pointed 
 out for what purpose the evidence was 
 aUowed in and that the falsity of the 
 statements was only to be considered as an 
 element in the consideration of the ques- 
 tion of malice. 
 
 3. Neither should a new trial be ordered 
 because of references in the charge to the 
 plaintiff that were "calculated to secure 
 for him the good will of the jury," and to 
 the defendant that were "uncomplimen- 
 tary and calculated to prejudice him in the 
 regard of the jury," when the amount of 
 the verdict was only $400 and the evidence 
 seemed to warrant such references, because 
 it did not clearly apj)ear that any sub- 
 stantial wrong or miscarriage of justice 
 had been occasioned by the use of the 
 expressions complained of. Schaefer v. 
 Schwab, 19 M.R. 212. 
 
 7. Privilege — Mercantile agency reports 
 to subscribers — Publication of trvs extract 
 from a public record — Words not libellous 
 per se — Special damage — Innuendo. 
 
 A statement that a man has given a 
 chattel mortgage is not hbeUous per se, and 
 no action wUl lie for the publication of 
 
627 
 
 LIBEL ACT. 
 
 628 
 
 such a statement without an innuendo to 
 bring out some injurious meaning' to be 
 attached to the words: Odgers on Libel and 
 Slander, 4th ed. pp. 110, 123. Special 
 damage caused by the pubUcation would 
 also have to be alleged and proved in 
 evidence, as actual, damage is the very 
 gist of such an action. 
 
 Ratcliffe v. Evans, [1892] 2 Q.B. 527, 
 followed. 
 
 Held, also, per Mathers, C.J., in the 
 Court below. 
 
 1. The publication without malice, by a 
 mercantile agency to its subscribers, of a 
 true extract from a register kept by virtue 
 of an Act of a, Provincial Legislature, 
 which was open to inspection by the 
 pubUc, for the purpose of giving to the 
 subscribers information which the agency 
 bona fide believed to be true, is privileged 
 and an action for libel in respect of such 
 publication will not lie, although the 
 extract purported to show that the 
 plaintiff had given a chattel rnortgage 
 when it should have shown only a lien 
 
 -mote given on the purchase of chattels. 
 
 Fleming v. Newton, (1848) 1 H.L.C. 363; 
 Searles v. Scarlett, [1892] 2 Q.B. 56, and 
 Annaly v. Trade Auxiliary Co., (1890) 26 
 L.R.Ir. 11, 394, followed. 
 
 Williams v. Smith, (1888) 22 Q.B.D. 
 134, and Macintosh v. Dun, [1908] A.C. 
 390, distinguished. 
 
 2. If what is published is not a true 
 extract from the public record, even 
 although it is furnished by the Govern- 
 ment official in charge, it is not privileged: 
 Beis V. Perry, (1895) 64 L.J.Q.B. 566; 
 SmUh V. Dun, 21 M.R. 683. 
 
 See Contempt of Court, 3. 
 
 — Criminal Law, XVII, 11. 
 
 — Criminal Information. 
 
 — Practice, XVI, 4, 5. 
 
 — Security for Costs, VI, 1. 
 
 LIBEL ACT. 
 
 See Libel, 1. 
 
 LICENSE TO TAKE 
 POSSESSION OF GOODS. 
 
 License to take possession of de- 
 fendant's goods if in plaintiff's opinion 
 
 he should be incapable of carrying on 
 business — // opinion formed bona fide, the 
 Court cannot review it — Appeal from findings 
 of trial Judge on conflicting evidence — 
 Replevin suit— Joint liability. 
 
 The defendant F., being indebted to 
 the plaintiffs, had given them a license or 
 power contained in an agreement under 
 seal, which provided that, if he at any 
 time in the opinion of the plaintiffs, or 
 either of them, should become incapable 
 of attending <to his .business, the plaintiffs 
 might take possession of his stock in trade 
 and sell it in payment of his indebtedness 
 to them. 
 
 Plaintiffs afterwards, having formed such 
 opinion bona fide, as the Judge at the trial 
 found, seized the stock in trade of F. and 
 placed an agent in charge, who employed 
 F. as a substitute and left him for a few 
 days in apparently sole possession. On 
 attempting afterwards to resume actual 
 possession, the plaintiffs were prevented 
 by F. from doing so, and five days later 
 F. made an assignment to his co-defendant 
 B. for the benefit of his creditors. An 
 employee of B. then took possession of the 
 stock and the plaintiffs replevied it. 
 
 The defendants pleaded jointly, denying 
 the taking of the goods as alleged and 
 claiming them as their property. 
 
 Held, 1. That the evidence showed a 
 joint conversion or taking, and, if the 
 plaintiffs were entitled to succeed in their 
 action against F., they were equally 
 entitled as against B. 
 
 2. That, if the plaintiffs had really, in 
 good faith, come to the conclusion that 
 F. was incapable of attending to his busi- 
 ness at the time when the seizure was made, 
 as the Judge at the trial had found, they 
 had a right to the goods: Allcroft w. Bishop 
 of London, [1891] A.C. 666; and, although 
 there might have been some doubt on the 
 evidence as to whether such opinion was 
 honestly entertained by the plaintiffs or 
 sufficiently founded, and another Judge 
 on merely reading the evidence might 
 conae to a different conclusion, yet the 
 Court, following the principles laid down 
 in The Glannibanta, 1 P.D., at p. 278, and 
 Ball V. Parker, 1 A.R. 603, would not 
 undertake to say that the trial Judge was 
 wrong in believing the statements of the 
 witnesses who were before him and whose 
 demeanour could be observed by him only. 
 Turner v. Francis, 10 M.R. 340. 
 
 Affirmed, 25 S.C.R. 110. 
 
629 
 
 LIEN. 
 
 630 
 
 LIEN. 
 
 See Contract. 
 — Evidence, 16. 
 
 LIEN OF VENDEE FOR PURCHASE 
 MONEY. 
 
 iSee Homestead, 1. 
 
 LIEN FOR DEBT. 
 
 LIEN FOR FREIGHT CHARGES. 
 
 See Railway Company, III, 6. 
 
 LIEN NOTE. 
 
 See Chattel Mortgage, V, 4. 
 
 — Conditional Sale. 
 — ■ Fixtures, 2. 
 
 — Sale op Goods, VI, 4. 
 
 LIEN ON CHATTELS. 
 
 See Livery, Stable Keeper. 
 
 LIEN ON LAND. 
 
 See Exemptions, 10. 
 
 — Mortgagor and Mortgagee, VI, 9. 
 — - Principal and Agen^, V, 2. 
 
 — Sale op Land for Taxes, X, 9. 
 
 LIEN ON RAILWAY PROPERTY. 
 
 See Railways, IX, 1. 
 
 LIFE INSURANCE. 
 
 1. Benevolent Society— Li/e Insurance 
 Act, R.S.M. 1902, c. 83— Appropriation of 
 insurance benefit by will. 
 
 The destination of a benefit in the nature 
 of Jife insurance conferred- by membership 
 
 in a benevolent society is to be determined 
 solely by a consideration of the ru'es and 
 regulations of the society, and, when such 
 rules and regulations make full and 
 expl oit provisions as to the destination of 
 such benefit, the insurance is not subject 
 to The Life Insurance Act, R.S.M. 1902, 
 c. 83. 
 
 Re Anderson, (1906) 16 M.R. 177, fol- 
 lowed. 
 
 The testator's beneficiary certificate in 
 the Canadian Order of Chosen Friends was 
 expressed to be payab e to his wife in the 
 manner and subject to the conditions set 
 forth in the laws governing the life insur- 
 ance fund. Those laws prevented a 
 member diverting the benefit to anyone . 
 not related to or dependent upon him 
 unless there were no such persons, and 
 provided that, in case of the prior death 
 of the beneficiary "and no further or other 
 disposition be made thereof," the benefit 
 should go to the surviving children of the 
 deceased member in. equal shares. 
 
 Held, that it was not competent to the 
 testator to divert by h's will the benefit to 
 his executors as part of his estate, although 
 they were to take it in trust for the chil- 
 dren, and that the proceeds should go to 
 the children free from the claims of credi- 
 tors of the deceased. Re Drysdale Estate, 
 18 M.R. 644. 
 
 2. Befaevolent Society— R.S.M. 1902, 
 
 c. 18, c. 83 — Appropriation of insurance 
 benefit by will — Election. 
 
 Interpleader at the instance of a 
 benevolent society incorporated under 
 40 Vic, c. 25. now R.S.M. 1902, c. 18, the 
 subject matter being the proceeds of a 
 life insurance certificate or policy which 
 the insured had made payable to his wife. 
 By his will the insured made other pro- 
 vision for her and directed that the 
 money in question should fall into and 
 form part of his general estate. 
 
 Held, 1. That the case was not gov- 
 erne4.by The Life Insurance Act, R.S.M. 
 1902,, c. 83, and that the will did not 
 operate as a good appointment of the 
 fund under the rules of the society, 
 which did not allow such an appropriation, 
 that the direction of the will could not 
 operate so as to make the money part of 
 the general estate, and that the widow 
 was entitled to it. 
 
 Leadlay v. McGregor, (1896) 11 M.R. 9, 
 and Johnston v. C. M. B. A., (1897) 24 
 A.R. 88, followed. 
 
 2. The widow was not put to her 
 election, and was entitled to the full 
 
631 
 
 LIFE INSURANCE. 
 
 632 
 
 benefit of the will as well as to the moneys 
 payable under the certificate. 
 
 Griffith v. Howes, (1903) 5 O.L.R. 439: 
 Re Warren's Trust, (1884) 26 Ch.D. 208, 
 and In re Beak's Settlement, [1905] 1 Ch. 
 256, followed. Re Anderson's Estate, 16 
 M.R. 177. 
 
 3. Mutual Benefit Society. 
 
 The plaintiffs were the executors of the 
 will of M., a member of an unincorpor- 
 ated society known as the Order of 
 Scottish Clans, who had held a certificate 
 of membership entithng the beneficiary 
 named therein to the sum of $2,000, 
 payable on M.'s death. By the rules of 
 • the society no member could assign his 
 "bequeathment certificate" nor would 
 any assignment be recognized by the 
 society. The name of M.'s father, the 
 defendant, had been inserted in the 
 certificate by his request. After the date 
 of the certificate and diu-ing the life time 
 of M., the bequeathment laws of the 
 society were amended, so as to provide 
 that at the death of a member in good 
 standing the amount of the bequeathment 
 should be paid to the wife, affianced wife, 
 or relative of, or person dependent upon, 
 such member, as designated in his be- 
 queathment certificate. By his last wiU 
 and testament M. appointed the pla'ntiffs. 
 as his executors and trustees, and directed 
 .that his life insurance money should be 
 paid to them for the purpose of carrying 
 out- the trusts of the will; and about the 
 same time he indorsed a memorandum on 
 the bequeathment certificate revoking the 
 former direction as to the payment of the 
 insurance due at his death, and authoriz- 
 ing and directing such payment to be 
 made to the plaintiffs. The officers of 
 the society refused to recognize this 
 revocation, and on the death of M. they 
 refiised to pay the insura-nce money to 
 the plaintiffs without the authority of the 
 Court. The plaintiffs were not, nor was 
 any of them, the wife, affianced wife, or 
 'relative of, or person dependent on, the 
 deceased. 
 
 Held, that, in a case of a society having 
 objects and a constitution similar to 
 those of the society in question, the mem- 
 ber has no interest in the fund raised or 
 to be raised, but merely a power to appoint 
 an object to receive the same, which 
 power must be exercised, in accordance 
 with the 'regulations of the society; and 
 that the defendant, the beneficiary named 
 jn the certificate, was entitled to the 
 
 money, as against the executors of the 
 deceased's estate. ' 
 
 In re William PhiUips' Insurance, 23 
 Ch.D. 235, followed. Leadlay v. Mc- 
 Gregor, ll M.R. 9. 
 
 4. Policy payable to beneficiary in 
 case of insured's death within named 
 period — Death of beneficiary before insured 
 — Conflict of laws — Mani oba Insurance 
 Ad, R.S.M. 1902, c. 82, s. 40— Insurable 
 interest in life. 
 
 A life insurance policy, (not coming 
 within the Act respecting Life Insurance 
 for the benefit of Wives and Children, 
 R.S.M. 1902, c 83) and the money to 
 become due under it belong, the moment 
 it is issued, to the person or per3ons 
 named in it as the beneficiary or bene- 
 ficiaries and there is no power in the 
 insured by any act of his, by deed or by 
 wUl, to transfer to any other person the 
 interest of the beneficiary which is a 
 vested right in him or her, and, therefore, 
 When the beneficiary dies before the 
 insured, the right to the money passes over 
 to the personal representatives of the 
 beneficiary to the exclusion of the insured 
 or his personal representatives at his 
 death. 
 
 Central Bank of Washington v. Hume, 
 (1888) 128 U.S.R. 195, and Am. & Eng. 
 Ency., yol. 3, p. 980, followed. 
 
 Wicksteed v. Munro, (1886) 13 A.R. 486, 
 distin|uished because based on special 
 Ontario legislation. 
 
 A policy may be made payable to a 
 
 person or beneficiary who is without any 
 
 insurable interest in the life of the insured. 
 
 North American Life v. Craigen, (1886) 
 
 13 S.C.R. 278, followed. 
 
 By virtue of s. 40 of The Manitoba 
 Insurance Act, R.S.M. 1902, c. 82, the 
 money payable Under a policy of life in- 
 siuance issued by a company hcensed 
 vmder the Act, when the insured resides 
 in Manitoba, is payable there although 
 the poUcy itself provides for payment at 
 the head office of the Company in another 
 Province, and in such a case the contract of 
 insurance is subject to the laws of Mani- 
 toba and the money must be distributed 
 in accordance therewith. Re McGregor, 
 18 M.R. 432. 
 
 6. Revocation by assured of benefit 
 declared in policy — By what law governed 
 — The Life Insurance Act, R.S.M. 1892, 
 c. 88,..s. 12—62 & 63 Vic, u. 17, s. 1— 
 Revocation by will— Lien for premiums. 
 
633 
 
 LIMITATION OF ACTIONS. 
 
 634 
 
 A contract of life insurance entered into 
 with a company whose head office is 
 in Ontario, the policy having issued from 
 the head office and providing for payment 
 of the insurance money there, is an Ontario 
 contract and must be interpreted and 
 carried out in accordance with Ontario 
 law, although the assured lived in Mani- 
 toba and made application there to a 
 local agent for the insurance, but an 
 assignment of or dealing with the benefits 
 of the policy made by the assured in 
 Manitoba will be governed by the law of 
 this Province relating thereto. . 
 
 Deceased, who was a resident of Mani- 
 toba, insured his life with the London 
 Life Insurance Company of Canada, 
 whose head office was in Ontario, and by 
 the policy the insurance money was 
 appropriated in favor of his wife, but by 
 his will he absolutely reTjpked this appro- 
 priation and directed that the money 
 should become part of his estate and 
 should be paid to his executor. Section 
 12 of The Life Insurance Act, R.S.M. 
 c. 88, as re-enacted by 62 & 63 Vic, c. 17, 
 permits such a revocation and new dis- 
 position of the insxirance money, but the 
 corresponding statutory provision in On- ' 
 tario (R.S.O., 1897, c. 203, s. 160,) for- 
 bids it. 
 
 Heli, that the law of Manitoba must 
 be applied to the determination of the 
 question as to the right of the assured to 
 make such new dispoSit'on, and that the 
 insurance money must be paid to the 
 executor as part of the deceased's estate. 
 
 Toronto General Trusts Co. v. Sewell, 
 (1889) 17 O.R. 442, and Lee v. Abdy, 
 (1886) 17 Q.-B.D. 309, followed. 
 
 Held, also, that a wiU is an instrument 
 , in writing within the meaning of the 
 Manitoba statute above referred to. 
 
 The widow was held entitled to a 
 charge in her favor for insurance pre- 
 miums paid by her to keep the policy in 
 force. National Trust Co. v. Hughes, 14 
 M.R. 41. 
 
 See Accident Insurance, 1. 
 
 — Bills and Notes, IY, 2. 
 
 — Injunction, I, 8. 
 
 The defendant on 24th March, 1888, 
 gave an order for a binder and agreed to 
 pay $150 for it, giving two promissory 
 notes of $75 each, the last of which fell 
 due on 1st January, 1891. 
 • It was provided, both in the order and 
 in the notes, that the property in the 
 machine was not to pass to the defendant 
 until payment of the price in full, and that 
 on default in payment of either note the 
 vendor should have the right to take 
 possession of and sell the machine, the 
 notes providing as follows: "The pro- 
 ceeds thereof to be applied on the amount 
 unpaid of the purchase price." 
 
 On default in payment of the first note 
 the vendors re-took the machine, sold it 
 and real'zed about enough to pay the 
 first note. 
 
 The notes were afterwards indorsed to 
 the plaintiffs, and in 1893 they employed 
 an agent to collect the amount of both. 
 The agent wrote defendant a letter 
 demanding payment, to which the de- 
 fendant wrote in reply that the vendors 
 had sold the machine for $70 or $75 before 
 the notes came due, and continued: "I 
 cannot see that I owe the firm for any- 
 thing but (he last note and interest on it." 
 
 Plaintiffs entered suit on the last note 
 in 1898. 
 
 Held, 1 . That the action of the vendors 
 in re-taking the machine and selling it did 
 not, undei the terms of the agreement, 
 operate as a rescission of the contract ; and 
 that there was no failure of consideration 
 for the note sued on. 
 
 2. That the acknowledgment contained 
 in defendant's letter to the collection 
 agent warranted the inference of a promise 
 to pay anil v/as sufficient, under 9 Geo. IV. 
 c. 14, to take the case out of the Statute of 
 Limitations, although it was made to an 
 agent of the plaintiffs and not to the 
 original creditors. 
 
 Stamford Banking Co. v. Smith, [1892] 1 
 Q.B. 765; Green v. Humphreys, (1884) 26 
 Ch.D. 474, and Tanner v. Smart, (1827) 
 6 B. & C. 603, followed. John Watson 
 Manufacturing Co. v. Sample, 12 M.R. 
 373. 
 
 LIMITATION OF ACTIONS. 
 
 1. Acknowledgment of debt — Failure 
 of consideratiori-^Sale of goods — Rescission 
 of contract — Re-taking possession on default 
 in payment of price. 
 
 2. Acknowledgment to take case out 
 of statute — Promise to "fix it up all 
 right." 
 
 A promise to "fix it up aU right" in a 
 week or two, in a letter written by the 
 debtor in reply to a written demand for 
 payment of the debt, is a sufficient 
 acknowledgment to take the case out of 
 
635 
 
 LIMITATION OF ACTIONS. 
 
 636 
 
 the Statute of Limitations and start it 
 ixinning anew. 
 
 Edmimds v. Goater, (1852) 21 L.J.Ch. 
 290, and Collis v. Stack, (1856) 1 H. & N. 
 605, followed. 
 
 A promise to pay the debt as soon as 
 the debtor could get the money is con- 
 ditional onV, and, without evidence that 
 the debtor had got the money, would not 
 be a suflficient acknowledgment to prevent 
 the statute running. Eyre v. McFarlane, 
 19 M.R. 645. 
 
 3. Administration of estates — Stat- 
 ute of Liimitations — King's Bench Act, 
 R.S.M. 1902, c. 40, s. 39 (a)— Manitoba 
 Trustee Act, R.S.M. 1902, c. 170, s. 42.- 
 
 Application by the administrator of the 
 estate for the advice and direction of a 
 Judge under section 42 of the Manitoba 
 Trustee Act, R.S.M. 1902, c. 170. 
 
 The intestate died in 1893 and the 
 administrator in 1896 distributed amongst 
 ( the creditors whose claims were filed and 
 allowed by him the proceeds of all the 
 assets of the estate of which he had any 
 knowledge, such proceeds being only 
 sufficient to pay the creditors a div'dend 
 of about 3.41 per cent. 
 
 In 1909, the administrator reaHzed a 
 further sum for the estate upon an asset 
 then recently discovered. 
 
 There had been no payment on account 
 or written acknowledgment made by the 
 administrator to any creditor since 1896. 
 
 Held, notwithstanding sub-section (a) 
 of section 39 of The King's Bench Act, 
 R.S.M. 1902, c. 40, that the claims of the 
 creditors were barred by the Statute of 
 Limitations, that it would be the duty of 
 the administrator to plead the Statute in 
 any action by a creditor and that the 
 administrator should forthwith distribute 
 the remaining funds of the estate amongst 
 the next of kin. Costs to all parties out 
 of the estate. Re Bedson Estate, 19 M.R. 
 664. 
 
 4. Foreign judgment — Statute of Limi- 
 tations. 
 
 In an action on a judgment recovered 
 in Ontario more than six years old, but 
 less than twenty, the defendant set up the 
 Statute of Limitations of Ontario, which 
 restricts the time to ten years for bringing 
 actions to letover any sum of money 
 secured by a judgment, etc., and charge- 
 able upon or payable out of any land. 
 After argument of a rule nisi to set aside 
 the verdict for the plaintiff, upon Which 
 the foregoing were the only questions 
 
 argued, the defendant applied ex parte for 
 leave to jjlead that the remedy on the 
 judgment in Manitoba was barred by the 
 Statute of Limitations, 21 Jac. .1, c. 16, 
 inasmuch ,as the judgment could only be 
 regarded in Manitoba as a simple contract 
 debt, and by the 39 Vic, c. 2, s. 8 
 (Man.), he was at Uberty to plead any 
 defence that might have been pleaded to 
 the original action. The Court refused to 
 allow the ahiendment, though of opinion 
 that the proposed plea would have been 
 d complete bar ,to the action. Bank of 
 Montreal v. Cornish, T.W. 272. 
 
 5. Judgment — Statute of lAmitations — 
 Transcrivt of judgment — County Courts 
 Act, R.S.M. 1892, c. 33, s. 193— fleoJ 
 Property Ldmitation Act, R.S.M., c. 89, 
 s. 24. 
 
 HeU, (1) That section 24 of The Real 
 Property LimitaMcn Act, R.S.M., c. 89, 
 applies to any judgment whether charged 
 on land or not, and that no proceedings 
 can be taken to enforce a judgment after 
 the lapse of ten years from the date of 
 its recovery. 
 
 (2) That the filing in 1892 of a transcript ~ 
 of a County Court judgment in the 
 Queen's Bench under section 193 of The 
 County Courts Act, R.S.M., c. 33, since 
 repealed, had not so far the effect of mak- 
 ing the same a new judgment as to give a 
 new point of time for the running of the 
 statute. 
 
 Jav V. Johnstone, [1893] 1 Q.B. 25, and 
 McKenzie v. Fletcher, (1897) 11 M.R. 544, 
 followed. Blanchard v. Muir, ISM.R. 8. 
 
 6. Action on promissory note of 
 person who has never been a resident 
 
 — Meaning of expression "beyond the seas" 
 — 21 Jac. 1, c. 16 — i Anne, c. 16. 
 
 The statute 4 Anne,, c. 16, which de- 
 clares that, in case a defendan was 
 bevond the seas at the time the cause of 
 acton accrued, the action may be brought 
 against him within six years after his 
 return, applies as against a debtor who 
 has never been within the jurisdiction at 
 all. 
 
 Lafond v. Ruddock, 13 C.B 813, and 
 Pardo V. Bingham, L.R. 4 .Ch. 735, fol- 
 lowed. 
 
 The liablity of a defendant to be sued 
 after the six years in such a case is not 
 affected by the plaintiff's absence from 
 the jurisdiction or the fact that_ the 
 plaintiff has never been within the juris- 
 diction. 
 
 The expression "beyond 'he seas" 
 n 21 Jac. 1, c. 16, and 4 Anne, c. 16, 
 
637 
 
 LIMITATION OF LIABILITY. 
 
 means "out of the territory/' or "beyond 
 the jurisdiction:" Buckmaboye v. Motti- 
 chund, 8 Moore P.O. 4. Kasson v. 
 Holley, 1 M.R. 1. 
 
 7. Several promissory notes — General 
 payment on account. 
 
 Where a creditor holds two or more 
 promissory notes made by the same 
 debtor, a payment made generally on 
 account has the effect of preventing the 
 Statute of Limitations from running in 
 respect of the whole indebtedness. 
 
 Taylor v. Foster, 132 Mass. 30, followed. 
 
 Bum V. Boulton, 2 C.B. 476, commented 
 on. Ashdownw. Montgomery, 8 M.R. 520. 
 
 See Amendment, 4, 5. 
 
 — Bills and Notes, II. 
 — • Chose in Action, 1. 
 
 — Contract, XV, 5. 
 
 — Conviction, 3. 
 
 — Ejectment, 1, 5. 
 
 — Executors and Administrators, 2. 
 — ■ Foreign Judgment, 4, 5, 8. 
 
 — Fraudulent Conveyance, 3, 15. 
 
 — Fraudulent Preference,^ III, 3. 
 
 — Husband and Wife, IV, 3. 
 
 — Mechanic's Lien, VIII, 1. 
 
 — Municipality, VIII, 2. 
 
 — Negligence, II, 3. 
 
 — Practice, XIX, 1. 
 
 — Quashing By-law. 
 
 — Railways, VIII, 5; XI, 2, 4. 
 
 — ■ Real Property Limitation Act. 
 
 — Rectification of Deed, 2. 
 
 — Solicitor's Lien for Costs, 3. 
 — ■ Title to Land, 2. 
 
 — ■ Workmen's Compensation fob In- 
 juries Act, 1. 
 
 LIMITATION OF LIABILITY. 
 
 See Pleading, XI, 8. 
 
 LIMITATION OF PROSECUTIONS. 
 
 See Criminal Law, I, 1, 2. 
 
 LIMITED PARTNERSHIP. 
 
 See Partnership, 9. 
 
 LIQUIDATED DAMAGES. 
 
 See Contract, XV, 12. 
 
 LIQUIDATED DEMAND. 
 
 See Foreign Judgment, 11. 
 
 LIQUIDATOR. 
 
 See Costs- XIII, 11. 
 
 — Taxation, 1. 
 
 — Winding-up, II. 
 
 LIQUOR LICENSE ACT. 
 
 1. Cancellation of license — R.S.M., 
 c. 90, s. 35 — Appeal fr,om commissioners — 
 Criminal procedure — Quashing conviction — 
 Jurisdiction of a single Judge — Full Court. 
 
 Held, following Regina v. Beale, 11 
 M.R. 448, that an application to quash a 
 conviction, even under a Provincial 
 statute, must be made to the Full Court 
 and not to a single Judge, as such^ an 
 application is criminal procedure, and the 
 Provincial Legislature has no jurisdiction 
 to make laws altering the practice therein. 
 
 After the decision of the Full Court in 
 Crothers v. Monteith, 11 M.R. 373, Crothers, 
 contending that the commissioners had 
 cancelled his hcense improperly under 
 section 35 of the Liquor License Act, 
 R.S.M.. c. 90, sold intoxicating liquor, 
 was convicted and fined, and then applied 
 to have the conviction quashed, claiming 
 that the action of the commissioners could 
 be reviewed on the application and that 
 they had acted on insufficient evidence. 
 
 Held, that the action of the license 
 commissioners in cancelling a license under 
 that section cannot be reviewed by the 
 Court, as no appeal is provided for against 
 any decision of theirs. Reg. v. Crothers, 
 11 M.R. 567 
 
 2. Cancellation of license — R.S.M. 
 1892, c. 90, s. 35 — Prohibition — Implied 
 authority. 
 
 The plaintiff claimed an injunction to 
 restrain the defendants, L'cense Com- 
 missioners, from acting on a petition 
 under the proviso 'in section 35 of the 
 Liquor License Act, R.S.M. 1892, c. 90, 
 to cancel his Ucense. This proviso read 
 
639 
 
 LIQUOR LICENSE ACT. 
 
 640 
 
 as follows: "Provided, however, that 
 once in every year after the first year of 
 license a petition by eight out of the 
 twenty nearest househo ders against any 
 license can be presented, and will have 
 the effect of cancelling such hcense." 
 
 Held, that the word "year" in the Act 
 means the licfense year ending on the 31st 
 of May, and not the calendar year, also 
 that by necessary implication the License 
 Commissioners are the persons to whom 
 such a petition should be presented, and 
 would have the right, on receipt of same, 
 to hold a meeting after notice to the 
 licensee for the purpose of considering 
 whether the document presented was 
 really a petition of eight out of the twenty 
 nearest householders, and on being satis- 
 ed of this to declare that the license 
 should be cancelled. Crothers v. Monteith, 
 11 M.R. 373. 
 
 3. Conveyance of liquor between 
 points in territory under local option 
 
 — Liquor License Act, R.S.M. 1902, c. 101 
 —7 & 8 Edw. VII, c. 26, s. 32— Construc- 
 tion of statute — Local option. 
 
 The prohibition of carrying or convey- 
 ing "liquor from any point in the Province 
 to any point in any territory under a local 
 option by-law except the same s consigned 
 to a licensee therein," enacted by section 
 32 of chapter 26 of 7 & 8 Edward VII, in 
 amendment of The Liquor License Act, 
 R.S.M. 1902, c. 101, apphes equally 
 whether the point from which the liquor 
 is conveyed is within or without the local 
 option territory. Rex v. Ritchie, 21 M.R.' 
 255. 
 
 •4. Druggist selling liquor — R.S.M. 
 1892, c. 90, ss. 147, 149— Evidence — 
 Pharmaceutical Act, R.S.M., c. 116, s. 38. 
 
 When a person charged, under section 
 147 of The Liquor License Act, R.S.M. 
 1892,' c. 90, with having sold liquor with- 
 out a license seeks to bring himself within 
 the protection of section 149 of the Act, 
 his stating on oath that he is a duly 
 registered druggist is not sufficient evidence 
 that he is a druggist duly registered under 
 The Pharmaceutical Act, R.S.M., c. 116, 
 to warrant the quashing of a conviction. 
 
 Per DuBuc, J. The granting of a 
 certiorari to remove a 'conviction is a 
 matter for the discretion of the Court; 
 and, when a statute makes provision for 
 an appeal from a summary conviction 
 under it, that discretion should be exer- 
 cised by refusing the writ, unless special 
 circumstances are shown: Qv^en v. Man- 
 
 chester, &c., Ry. Co., (1838) 8 A. & E. 413; 
 Ex parte Ross, (1895) 1 Can. Crim. Cas. 
 153. 
 
 Per Bain, J. Whether defendant was 
 a registered druggist or not, it was quite 
 open for the complainant to' charge him 
 under the general provision of section 147; 
 and, if section 149 would have afforded 
 him any defence to the charge, the onus 
 lay on him to bring himself by proper 
 evidence within its provisions: Paley on 
 Convictions, pp. 130, 244; Cathcart v. 
 Hardy, (1814) 2 M. & S. 534. Reg. v. 
 HerreU, 12 M.R. 522. 
 
 5. Evidence of character of liquor. 
 
 Upon a charge of selling liquor without 
 a Hcense, there must be evidence that the 
 liquor was intoxicating. 
 
 Where the charge is made against a 
 licensee for some breach of the statute, it 
 must be shown that he was a licensee, and 
 the production of the license after sentence, 
 for the purpose of beipg indorsed as 
 required by the statute, is not sufficient. 
 
 The fine imposed by a conviction in- 
 cluded a share of the expenses of bringing 
 the prosecutor as a witness from a dis- 
 tance. 
 
 Held, that .such inclusion vitiated the 
 the conviction. 
 
 A conviction under section 66 of the 
 Act is not bad because it does not direct 
 distress previous to imprisonment. 
 
 Ev dence that a certain act was done 
 at, or in. Portage la Prairie will not be 
 taken to apply to the town, rather than 
 the municipaUty or county of that name. 
 
 A conviction will not be quashed upon 
 the weight of evidence meiely. 
 
 Semble, a joint conviction against two 
 members of a firm for a breach of the 
 statute is bad. Reg. v. Grannis, 5 M.R. 
 153. 
 
 6. Evidence of former conviction — 
 
 R.S.M. 1892, c. 90, ss. 151, 180, 182, 200, 
 209, 210 — Amending conviction — DisquaU- 
 fication of magistrate — Certificate of con- 
 viction. 
 
 1. Where there is any evidence in sup- 
 port of a conviction, the finding of the 
 magistrate will not be interfered with, 
 although the evidence may not be satis- 
 factory in the opinion of the Court. 
 Regina v. Grannis, (1888) 5 M.R. 153, 
 followed. 
 
 2. Before a conviction for a second 
 offence under The Liquor License Act, it 
 is necessary to prove the identity of the 
 defendant with the person named in the 
 
641 
 
 LIQUOR LICENSE ACT. 
 
 642 
 
 certificate of the former conviction, and , 
 neither the similarity of names nor the 
 Personal knowledge of the magistrate will 
 be sufficient for that purpose. 
 
 Queen v. Lloyd, (1873) 1 Cox C. C. 51, 
 followed. 
 
 Regina v. Brovm, (1886) 16 O.R. 41, 
 distinguished. 
 
 3. Where the conviction is bad because 
 it was for a second offence and the proof 
 of the former conviction was insufficient, 
 the Court will not amend the conviction 
 under sections 209 and 210 of the Act, so 
 as to make it a conviction for a first 
 offence, when the evidence of the com- 
 mission of that offence is not in itself 
 satisfactory, as the powers of amendment 
 given by sections 883 and 889 of The 
 Criminal Code, made apphcable by sec- 
 tion 180 of The Liquor License Act and 
 56 Vic, c. 32, should be exercised only if 
 the Court or Judge is satisfied upon per- 
 usal of the depositions that an offence of 
 the ;nature described in the conviction has 
 been committed. 
 
 4. A magistrate is not disqualified to sit 
 upon a case under The Liquor License 
 Act by reason of being honorary member 
 of a Temperance Union which has taken 
 active steps towards enforcing the Act 
 before him and provided funds for that 
 purpose; especially where the prosecution 
 is not conducted by the Union, and the 
 magistrate's coimection with it has been 
 merely nominal. . 
 
 Regina v. Deal, (1881) 45 L.T.N.S. 439, 
 and Leeson v. Gere. Council, etc., (1889) 43 
 Ch.D. 366, followed. 
 
 Per Bain, J. The certificate of the 
 former conviction put in was insufficient 
 because it nowhere stated that the con- 
 viction had been made under the pro- 
 visions of The Liquor License Act. 
 
 Per KiLLAM, J. Although the certifi- 
 cate of the former conviction omitted the 
 word "intoxicating" before the word 
 "liquor" in describing the offence, yet it 
 was not defective on that accoxm.t in view 
 of sections 151 and 182 of the Act and the 
 wording of the form in Schedule K (par. 2). 
 Reg. v. Herrell, 12 M.R. 198. 
 
 7. Information laid before one jus- 
 tice oiHy— Quashing conviction. 
 
 5. was convicted under The Liquor 
 License Act of Manitoba, 1889, of selling 
 liquor without a hcense. 
 
 The information was laid before one 
 justice of the peace, but the prosecution 
 was heard before two justices. The 
 defendant was convicted, and a sum for 
 
 witness fees was included in the costs 
 awarded against him. 
 
 The defendant had given notice of 
 appeal, perfected security, and taken out 
 a summons under section 126 of The 
 Liquor License Act, by way of appeal 
 .from the conviction, but had abandoned 
 the summons before serving it. 
 
 Held, 1. That the defendant had ap'- 
 pealed within the meaning of section 84 
 of The Summary Convictions Act, and 
 that the right to certiorari was taken 
 away, except as to objections going to the 
 jurisdiction of the justices. 
 
 (a)2. That the bringing of the prosecu- 
 tion was the laying of the information, and 
 that it ought to have been laid before two 
 justices, and that the matter of the 
 prosecution was not, therefore, properly 
 before the two justices on the hearing of 
 the case, and they had no jvu^isdiction to 
 hear or determine it. Reg. v., Starkey, 7 
 M.R. 43. 
 
 (a) But see, now, R.S.M. 1902, c. 101, 
 s. 187. 
 
 8. Information laid before one jus- 
 tice only — Posts — Quashing conviction — 
 Waiver — Right of Attorney-General to inter- 
 vene and appeal in matters affecting rights of 
 Province where parties to proceedings do riot 
 appeal — Right of appeal in criminal 
 matters. 
 
 S. was convicted under the Liquor 
 License Act of Manitoba, 1889, of selling 
 Uquor without a license. The information 
 was laid before one justice of the peace, 
 but the prosecution was heard before two 
 justices. The defendant was convicted, 
 and a sum for witness fees was included 
 in the costs awarded against him. The 
 defendant obtained a rule nisi to quash 
 the conviction. On its return, Taylor, 
 C.J., made the rule absolute. At this 
 stage the Attorney-General, although not 
 a party to the proceedings, intervened 
 and moved before the Full Court against 
 this decision. The parties to the pro- 
 ceedings did not complain of the decision. 
 
 Held, 1. That the decision of the single 
 Judge, notwithstanding this being a 
 criminal matter, was subject to review by 
 the Full Court. 
 
 2. That the Attorney-General was en- 
 titled to intervene. 
 
 (a) 3. Affirming the decision of Taylor, 
 C.J., reported 7 M.R. 43, (Dubdc, J., 
 dissenting), that the laying of the infor- 
 mation was the bringing of the prosecu- 
 tion, and that it ought to have been laid 
 
643 
 
 LIQUOR LICENSE ACT. 
 
 644 
 
 before two justices, and that the matter 
 of the prosecution was not, therefore, 
 properly before the two justices on the 
 hearing of the case, and they had no juris- 
 : diction to determine it. 
 
 Per DuBuc, J., that the information 
 was properly laid before one justice only. 
 
 Per Bain, J., this objecfon to the juris- 
 diction must be taken at the hearing 
 before the justices, otherwise it will be 
 waived. 
 
 Per Bain, J., as the statute authorizes 
 the justices to award, costs and does not 
 fix any tariff, the justices may allow such 
 costs as they consider reasonable. Reg. v. 
 Starkey, 7 M.R. 489. 
 
 (o) But see, now, R.S.M. 1902, c. 101, 
 
 s. 187. 
 
 9. Jurisdiction of County Court 
 Judge to entertain application to 
 cancel license— R.S.M. 1902, c. 101, s. 
 119 — County Court Judicial Division lying 
 partly in one Judicial District and partly in 
 another. 
 
 Under section 119 of The Liquor License 
 Act, R.S.M. 1902, c. 101, if the hcensed 
 premises do not lie within the Judicial 
 District for which the County Court Judge 
 is Judge, he has no jurisdiction to entertain 
 an application to cancel the license, al- 
 though he is the Judge for a County Court 
 Judicial Division composed for the most 
 part of territory in his Judicial District 
 with the addition of a number of town- 
 ships in the Judicial District in which are 
 the licensed premises. Be SomerviUe, 19 
 M.R. 355. , 
 
 _ 10. Keeping liquor for sale without 
 license — Information — Conviction — Pen- 
 alty. 
 
 Magistrates have jurisdiction under 
 The Manitoba Liquor License Act, 
 1886, upon a charge, under- section 73, 
 of keeping liquor for sale without a 
 licence. 
 
 The information upon such a charge did 
 not state that the liquor was intoxicating 
 Uquor, 
 
 Held, that such an allegation was not 
 necessary. 
 
 An information was laid in proper form. 
 Upon this a search warrant was issued. 
 Afterwards another information was laid 
 which omitted a necessary allegation. 
 This allegation was, however, in the 
 summons served upon the defendant. 
 
 Held, that the second information 
 might be supplemented by the first; and 
 
 in any case the information would be 
 amended and not quashed. 
 
 A charge that the defendant kept Mquor 
 for the purpose of selling, or for the pur- 
 pose of trading, or for the purpose of 
 bartering, is only one offence. 
 
 Upon such a charge it is sufficient to 
 allege that the offence was committed at 
 a certain town without specifying the 
 house or buildiag. 
 
 Upon conviction for such an offence 
 magistrates have power to award im- 
 prisonment for four months in default of 
 payment of the fine imposed. 
 
 Evidence discussed as to whether the 
 Iquor was intoxicating. Reg. v. Coulter, 
 4 M.R. 309. 
 
 11. Promissory note given for liquor 
 supplied on premises — Illegality of— 
 Action on — Hotel-keeper — Ultra vires. ■ 
 
 The Liquor License Act, R.S.M., c. 90, 
 s. 134,. provides that, "If any hotel- 
 keeper receive in payment or as a pledge, 
 for any liquor supplied in or from' his 
 licensed premises, anything except current 
 money or the debtor's own cheque on a 
 bank or banker, he shall for each such 
 offence be liable to a penalty of twenty 
 dollars, and, in default of payment, to 
 one month's imprisonment." 
 
 Declaration on two promissory notes 
 made by defendant payable to plaintiff. 
 Pleas to each count. 
 
 1. That plaintiff was a Hcensed hotel- 
 keeper, and that part of the consideration 
 for which the note was given was for 
 hquor supplied by plaintiff to defendant 
 in his hotel. 
 
 2. That the note was received by the 
 plaintiff as a pledge for liquor supphed by 
 him to the defendant in his hotel. 
 
 On demurrer to these pleas. 
 
 Held, 1. That these pleas were good on 
 the ground that, by the imposition of a 
 penalty for taking anything but money in 
 payment, or as a pledge, for hquors sup- 
 plied in licensed premises, the Legislature 
 had clearly intended to make it unlawful 
 to take anything but money. 
 
 2. That the above' provision was intra 
 vires of the Legislature. 
 
 Hodge v. The Queen, 9 App. Cas. 117, 
 and Citizens Insurance Co. v. Parsons, 7 
 App. Cas. 96, applied. Benard v. McKay, 
 9 M.R. 156. 
 
 12. Protest against license — Applica- 
 tion for license — Publication for two weeks 
 — Time, computation of — Jurisdiction of 
 Court to annul license. 
 
645 
 
 LIQUOR LICENSE ACT. 
 
 646 
 
 The statute 41 Vic, c. I4 (Man.), 
 enacted that no license to sell intoxicating 
 liquor should be granted except as pro- 
 vided by the Act; that, upon an applica- 
 tion being made for a license, the License 
 Commissioners should, before granting it, 
 publish for two weeks in thre'e weekly 
 newspapers pubhshed in the Province, one 
 being published in the French language, 
 the name of the applicant and the place 
 where he intended to sell intoxicating 
 liquor; and that a protest in writing 
 against the granting of any license, signed 
 by five or more out of the twenty voters 
 and householders nearest to the place 
 proposed to be licensed, should prevent 
 the issue of any license. The License 
 Commissioners published the application 
 of O'C. & W. in om weekly French news- 
 paper on 30th October and 6th November, 
 and in the weekly edition of one English 
 newspaper on 1st and 8th November. 
 They ordered the issue of a license to 
 O'C. & W. bn 10th November, and on 
 the 11th November a protest, signed by 
 five of the twenty voters and house- 
 holders nearest to the place proposed to 
 be licensed, was lodged with the Com- 
 missioners. 
 
 Held, that the Commissioners had no 
 power to issue the license until after the 
 lapse. of two weeks from the first pubU- 
 cation of the appUcation; that the pro- 
 test was lodged in time and deprived the 
 Commissioners absolutely of any power 
 to grant a license, and that the license 
 granted was therefore void. 
 
 Held, also, that this Court had inherent 
 jurisdiction to annul the license, as well as 
 power under section 32 of the Act, which 
 gave jurisdiction to any Judge sitting as a 
 stipendiary magistrate in all prosecutions 
 for offences against the Act. Re O'Connor 
 and Ward, T.W., 284. 
 
 13. Protest against license — Power of 
 Commissioners — Jurisdiction of Court. 
 
 Held, 1. That the granting of a license 
 by the License Commissioners to sell 
 intoxicating Hquors is not an Act of the 
 Crown which cannot be reviewed by the 
 Court. 
 
 2. Th4t, when a protest, signed by five 
 of the twenty voters and householders 
 nearest the place proposed to be 1 censed, 
 is lodged with the Commissioners, they 
 have no discretion as to proceeding, but 
 ■ are absolutely debarred from issuing a 
 license. 
 
 3. That the Court of Queen's Bench has 
 inherent in it plenary jurisdiction to annul 
 
 a license, apart from the statutory juris- 
 diction of the Judges under the Act 
 respecting Intoxicating Liquors. 
 
 An application for a license was recom- 
 mended by eighteen persons, purporting 
 to be eighteen of the twenty voters and 
 householders nearest the place proposed 
 to be Mcensed. W. signed the recon^- 
 mendation, but, after reconsidering his 
 act, refused to acknowledge and, in fact, 
 repudiated, his signature before a Justice. 
 He, witli six others, signed a protest 
 against the issue of the license. Both the 
 recommendation and protest were attested 
 by a Justice. The Commissioners took 
 some evidence as to W.'s signature, and as 
 to the qualifications of the signers of the 
 protest, and in their discretion held that 
 W. had signed the recommendation freely 
 and voluntarily, and that the protest was 
 not s'gned by five of the twenty nearest 
 voters and householders. Another signa- 
 ture to the recommendation wa^ shown to 
 be invalid. The remaining sixteen signa- 
 tures were not sixteen out of the twenty 
 nearest voters, etc., as required by the 
 Act. The Commissioners issued the li- 
 cense. 
 
 Held, that they had no power to exer- 
 cise any discretion as to the issue of the 
 •license, but were- absolutely debarred 
 therefrom by the protest, and therefore 
 that the license was void. 
 
 Remarks as to the duties of the License 
 Commissioners. Be O'Connor and Chad- 
 wick, T.W., 29'i. 
 
 14. Selling during prohibited hours 
 
 — Conviction — Proof of license — Amend- 
 mnt of conviction. 
 
 In order to convict of the offence of 
 selling intoxicating liquors during pro- 
 hibited hours under section 143 of the 
 Liquor License Act, R.S.M., c. 90, it is 
 incumbent on the prosecution to prove 
 that the defendant held a I'cense for the 
 premises where the liquor was sold, or 
 that the premises were licensed premises. 
 
 On a motion to quash a conviction for 
 selling during prohibited hours, where the 
 existence of a license is not proved, the 
 Court win not amend the conviction 
 under R.S.M., i;. 90, s. 209, so as to make 
 it one for selling without a license. Reg. 
 V. Williams, 8 M.R. 342. 
 
 See Conviction, 4. 
 
 — Local Option By-law. 
 
647 
 
 LIS PENDENS. 
 
 648 
 
 LIS PENDENS. 
 
 See Mechanic's Lien, X, 1. 
 
 LOAN. 
 
 See Monet Lenders' Act. 
 
 LIVERY STABLE KEEPER. 
 
 1 Lien for board of horses — Posting 
 up of Act. 
 
 , In an action of replevin for the detention 
 of horses the defendant avowed for money 
 due for board of the horses. The plaintiff 
 pleaded that "at the time of the said 
 detention the defendants had not posted 
 up in the office and in two other places in 
 their said stable a copy of the Act of the 
 Legislature of the Province of Manitoba, 
 passed in the 47th year of Her Majesty's 
 reign, chaptered 15." 
 
 Held, on demurrer, that the plea was 
 bad: 
 
 1. Because, Con. Stat. Man., c. 56, s. 9, 
 not being incorporated with 47 Vic, c. 15, 
 the lien given by the latter Act does not 
 depend upon the posting up of the Act. 
 
 2. And in any event the Act does not 
 require the copies to be posted "up when 
 the goods are detained, but only when they 
 are brought to the hotel. 
 
 Held, also, on exceptions to the avowry, 
 that it was unnecessary to allege the post- 
 ing up of the notices. Dudley v. Hender- 
 son, 3 M.R. 472. 
 
 2. Lien on horse for cost of stabling 
 and feed — Stable Keepers Act, B.S.M. 
 1902, c. 159, ss. 2, 3— Hotel Keepers Act, 
 R.S.M. 1902, c. 75— Theft. 
 
 A hvery stable keeper has no lien on a 
 horse for its stabhng and keep as against 
 the real owner, when the horse was stolen 
 and placed with him by the thief. Section 
 2 of the Stable Keepers Act, R.S.M. 1902, 
 c. 159, which gives a livery stable keeper 
 a hen on animals for stabling and feeding 
 them and the same rights and privileges 
 for exercising and enforcing such lien 
 . . . as hotel keepers may have or 
 possess in virtue of The Hotel Keepers 
 Act, R.S.M. 1902, c. 75, does not give the 
 livery stable keeper the same right of lien 
 which a hotel keeper has at Coipmon Law 
 in respect of goods or animals left in his 
 charge by a guest who may have stolen 
 the same, as the latter Act in its terms 
 gives only a lien on the property of per- 
 sons who may be indebted to the hotel 
 keeper for board or lodging, whatever may 
 be his' rights independently of the Act. 
 Harding v. Johnston, 18 M.R. 625. 
 
 LOCAL OPTION BY-LAW. 
 
 I. Change of Boundaries of Muni- 
 cipality. 
 II. Contents of the By-law. 
 
 III. Counting Rejected Ballots. 
 
 IV. Form of Ballot. 
 
 V. Notice of the Voting. 
 VI. Petition to Council. 
 
 I. Change of Boundaries op Muni- 
 cipality. 
 
 1. Application to quash by-law for 
 repeal ot — Vote taken in new municipality. 
 
 The Municipality of North Dufferin 
 passed a Local Option by-law. No. 64. 
 Subsequently the Municipality of North 
 Dufferin was divided, six of its eleven 
 townsh'ps being included in the new 
 Municipality of Dufferin, composed of 
 twenty-five townships. 
 
 Later , on the Council of the Munici- 
 pality of Dufferin passed a by-law. No. 22, 
 repealing by-law No. 64 of the former 
 Municipality of North Dufferin. This 
 by-law was submitted to all the electors 
 of the new municipality and carried. 
 
 By The Municipal Act, 1890, s. 396, 
 (R.S.M. c. 100, s. 330,) it is provided that 
 "Every Council may repeal, alter and 
 amend its by-laws from time to time,'! save 
 as by that Act restricted. 
 
 On a motion to quash the by-law No. 22. 
 
 Held, that the term, "its by-la,ws,' 
 referred to in the statute quoted, which a 
 mimicipaUty can repeal, means by-laws 
 affecting its territory. The new munici- 
 pality, which included the added territory 
 and had full control and power over it, 
 must have such power as is necessary to 
 have the by-law enforced in the territory 
 affected by it, and as such, for that pur- 
 pose and to that extent, it must be con- 
 sidered as the successor of the former 
 municipality. In that view, a by-law 
 affecting a portion of its territory, and still 
 in force, may be held to be one of its by- 
 laws, subject to be repealed in due course, 
 and by proper proceedings to that effect. 
 
 Held, also, that the by-law came under 
 the control and power of the new munici- 
 pality, only as applying to the territory 
 
649 
 
 LOCAL OPTION BY-LAW; 
 
 650 
 
 affected by it, and it was only to that 
 extent that it became a by-law of the new 
 municipality. 
 
 The two years, before the by-law could 
 be repealed, must be counted from the 
 time it was made to apply to.the territory 
 affected by it. Doyle v. Dufferin, 8 M.R. 
 286. 
 
 2. Mandamus— Ligitor License Act, R. 
 S.M. 1902, c. 101 — By-law, good in part 
 and bad in part. 
 
 The Act 53 Vic, c. 52, assented to 31st 
 March, 1890, making changes in names 
 and boundaries of the municipaUties into 
 wh'ch the Province was divided, provided, 
 by section 81, that if, in any of the terri- 
 tory changed as to its municipal situation 
 , by the provisions of the Act, a by-law 
 under the local option clauses of the 
 Liquor License Act should be in force at 
 the time of the coming into force of the 
 Act, such by-law should continue to affect 
 such territory the same as if the Act had 
 not been passed. 
 
 The Village of Napinka was in 1890 
 part of the Rural Municipality of Brenda, 
 in which a local option by-law had been 
 passed forbidding the receiving of any 
 money for hoenses under The Liquor 
 License Act; but, by the said Act, 53 
 Vic, c 52, the said village became part of 
 the newly created MunicipaUty of Win- 
 chester, and again in 1896 it was made 
 part of a municipality then created under 
 the old name of Brenda. 
 
 Held, that the said local option by-law 
 was still in force in that village, notwith- 
 standing the changes in name and bound- 
 aries of the municipalities referred to. 
 
 Doyle v. Dufferin, (1892) 8 M.R. 286, 
 followed. 
 
 Held, also, that the by-law was vahd 
 although it contained an additional pro- 
 vision, unauthorized by the statute, pur- 
 porting to prohibit the granting of any 
 licenses within the limits of the munici- 
 paUty. 
 
 The King v. The Fishermen of Faver- 
 sham, (1799) 8 T.R. 352; King v. Bum- 
 stead, (1831) 2 B. & Ad. 699, and Re 
 Fennell & Guelph, (1865) 24 U.C.R. 238, 
 followed. 
 
 Application for mandamus to License 
 Commissioners to grant a hcense to sell 
 liqiior in Napinka refused without costs. 
 Rex V. License Commissioners, Re Anderson, 
 14 M.R. 535. 
 
 II. Contents op the By-law. 
 
 1. Appointment of scrutineers — 
 
 Ligiun- Licence Adl, BJS.M. 1902, c. 101, 
 ss. 66, m— Municipal Act, R.S.M. 1902, 
 c. 116, ss. 200, 377, 391— Fonrao/ ballot- 
 Publication "for at least one month' 
 . 1. Section 377 of the Municipal Act, 
 R.S.M. 1902, c. 116, is imported into the 
 Liquor License Act, R.S.M. 1902, c. 101, 
 by section 68 of the latter Act, on the 
 proper construction of the provision that 
 all proceedings at the poU and for the pur- 
 pose thereof shall be conducted in the same 
 manner as voting upon any by-law re- 
 quired by The Municipal Act to be voted 
 ufjon, and a local option by-law which 
 fails to provide for the appointment of* 
 scrutineers at the polling and summing up 
 of the votes by the clerk is fatally defective 
 and should be quashed. 
 
 Re Bell and Corporation of Elma, (1906) 
 13 O.L.R. 80, followed. 
 
 2. Section 200 of the Municipal Act 
 does not extend so far as to excuse non- 
 compliance with an obligatory provision 
 as to the contents of a by-law. 
 
 Re Schumacher and Town of Chesley, 
 (1910) 21 O.L.R. 538, foUowed. 
 
 3. The publication of the notice pro- 
 vided for in section 66 of the Liquor 
 License Act in the Manitoba Gazette on 
 the 16th, 23rd and 30th October, and on 
 the 6th and 13th of November, satifies the 
 requirement of pubKcation "for at least 
 one month" contained in that section 
 taken along with the qualification that 
 no more than one insertion each week 
 shall be necessary (Howell, C.J.M., dis- 
 senting). 
 
 Hall V. Sovih Norfolk', (1892) 8 M.R. 
 430, referred to. 
 
 The Court was equally divided on the 
 question whether the use of the form of 
 ballot prescribed by s. 4a of 9 Edw. VII, 
 c. 31, amending s. 68 of the Liquor 
 License Act, at the. voting on a local 
 option by-law, together with the directions 
 for the guidance of voters in the form 
 prescribed by Schedule F to the Municipal 
 Act, referred to in section 391, without any 
 alterations to suit the new form of ballot, , 
 was fatal to the by-law in view of the incon- 
 sistency of the two forms. Re Munici- 
 pality of Portage la Prairie, Shaw v. 
 Portage la Prairie, 20 M.R. 469. 
 
 2. Fixing time and place for sum- 
 ming up of votes — Liquor License Act, 
 R.S.M. 1902, c. 101, ss. 66, 6&— Municipal 
 
651 
 
 LOCAL OPTION BY-LAW. 
 
 652 
 
 Act, B.S.M. 1902, c. 116, ss. 376, 377— 
 Posting up notices of voting. 
 
 Held, that section 68 of the Liquor 
 License Act, R.S.M. 1902, c. 101, should 
 be construed as requiring the council of a 
 municipahty, in passing a local option 
 by-law, to ioUow the directions of sections 
 376 and 377 of The Municipal Act, R.S.M. 
 1902, c. 116, and therefore to provide for 
 the posting up of. notices of the voting and 
 to fix a time and place for the clerk to sum 
 . up the votes, and that a local option by- 
 law which did hot make such provisions 
 was illega:l and should be quashed. Be 
 MunidpaUiy of South Cypress, 20 M.B, 
 142. 
 
 ' 3. Must be complete in itself — 
 
 Municipal Act, R.S.M. 1902, c. 116, ss. 
 200, 376, 377— lAguor License Act, B.S.M. 
 1902, c. 101, s. 68. 
 
 A local option by-law intended to be 
 submitted to the vote of the rate-payers 
 under sections 61 to 72, inclusive, of the 
 Liquor License Act, R.S.M. 1902, c. 101, 
 must, by force of section 68, referring to 
 proceedngs under The Municipal Act, be 
 complete m itself and contain provisions 
 fixing the time and place of the polling 
 and providing for the othe ■ matters 
 spec fied in sections 376 and 377 of the 
 Municipal Act, including the appointment 
 of agents or scrutineers. 
 
 Where, therefore, the council passed two 
 by-laws, one simply forbidding the receiv- 
 ing of any money for a license under the 
 Liquor License Act, which by-^aw was^ 
 submitted to the vote of the rate-payers 
 before its third reading, and another 
 making the usual and necessary pro- 
 visions for the taking of the vote on the 
 first, as required by the Municipal Act, 
 which by-law was passed through its 
 three readings at one session, the pro- 
 ceedings were held to be defective and 
 incapable of being cured by section 200 
 of the Act. Be Carman, 20 M.R. 500. 
 
 III. Counting Rejected Ballots. 
 
 Liquor License Act, R.S.M. 1902, c. 
 101, s. 63 — Majority necessary to carry by- 
 law. 
 
 Although an elector deposits a ballot at 
 the voting on a local option by-law sub- 
 mitted under The Liquor License Act, 
 R.S.M. 1902, c. 101, if such baUot is 
 afterwards rejected, he has not voted 
 within the meaning of section 63 of the 
 Act, and he should not be counted among 
 those who vote in ascertaining whether 
 
 the necessary three-fifths of those who 
 vote have voted in favor of the by-law. 
 Be Swan Biver Local Option By-law, 16 
 M.R. 312. 
 
 IV. FoBM OP Ballot. 
 
 1. Municipal Act, R.S.M. 1902, c. 
 116, s. 391 and Schedule T^Ldquor 
 License Act, R.S.M. 1902, c. 101, ss. 66, 
 68 — Meaning of words "as soon as possible" 
 — Failure to keep polls open during pre- 
 scribed hours. 
 
 1. The use of the form of ballot, pre- 
 scribed by section 4 A of c. 31 of 9 Edw. 
 VII, amending section 68 of The Liquor 
 License Act, R.S.M. 1902, c. 101, at the 
 voting on a local option by-law, together 
 with the directions for the guidance of 
 voters in the form prescribed by section . 
 391 and Schedule F of the Municipal Act, 
 R.S.M. 1902, c. 116, is not a fatal objec- 
 tion to the by-law, notwithstanding the 
 inconsistency of the two forms. , 
 
 Ward V. Owm Sound, (1910) 15 O.W.R. 
 443, foUowed. 
 
 2. The first pubMcation of the notice of 
 the voting on a local option by-law, 
 required by section 66 of the Liquor 
 License Act, having been on the 14th of 
 October, this was not "as soon as possible" 
 after the second reading, which had taken 
 place on the preceding 5th of June, and 
 the by-law, although carried, should be 
 quashed , because that section had not 
 been complied with. 
 
 3. The dehberate closing of one of the 
 polls for about an hour upon an adjourn- 
 ment for lunch, though with the consent 
 of all present and in pursuance of a local 
 custom, was held fatal to the by-law in 
 the absence of satisfactory evidence that 
 the' result of the voting had not been 
 affected thereby. 
 
 Scott V. Imperial Loan Co., (1896) 11 
 M.R. 190, foUowed. 
 
 4. A local option by-law may be given 
 its third reading without waiting for the 
 time for applying for a recount to elapse. 
 
 Be Coxworth and Hensall, (1908) 17 
 O.L.R. 431, followed. Hatch v. Oakland, 
 Be Oakland Municipality, 19 M.R. 692. 
 
 V. Notice op the Voting. 
 
 1. Contents of — lAquor License Act, 
 B.S.M. 1902, c. 101, s. QQ—Munidpal 
 Act, R.S.M. 1902, c. 116, s. 427— CosJs. 
 
 1. The notice given by the councU 
 under section 66 of The Liquor License 
 Act, R.S.M. 1902, c. 101, must, among 
 
653 
 
 LOCAL OPTION BY-LAW, 
 
 654 
 
 other things, state that the by-law or a 
 true copy of it can be seen at the office of 
 the clerk until the day of the taking of 
 the vote and the absence of such state- 
 ment in the notice will be fatal to the 
 by-law on an application to quash it. 
 
 2. If, dn account of an application for 
 a, recount of the votes, the council post- 
 pone the further consideration of the 
 by-law until after the result of the recount 
 is known, they must either formally 
 adjourn such further consideration to a 
 named day or' they must afterwards give 
 such notice of the time and place when 
 the third reading is to be moved that 
 parties opposed to it may be in a position 
 to attend and urge their views and, if the 
 third reading takes place without such 
 notice being given, the by-law will be 
 quashed. 
 
 Re Mace and Frontenac, (1877) 42 
 U.C.R. 85, and Hall v. South Norfolk, 
 (1892) 8 M.R. 430, foUowed. 
 
 3. The third readihg of such a by-law, 
 even after it has been carried by the votes 
 of the electors, is not an empty formality, 
 as . the councillors have still to exercise 
 their judgment upon it, and might, if they 
 choose, then finally refuse to pass it. 
 
 (o)4. Under section 427 of the Munici- 
 pal Act, R.S.M. 1902, c. 116, a Judge, on 
 quashing such a by-law for iUegahty, as 
 in this instance, has no discretion to refuse 
 costs to the apphcant. Re Cross and the 
 Town of Gladstone, 15 M.R. 528. 
 
 (o) But see, now, s. 3 of c. 12 of 7 & 8 
 Edward VII. 
 
 2. Provisions of Municipal Act not 
 applicable — Liquor License Act, R.S.M. 
 1902, c. 101, ss. 66, Q&— Municipal Act, 
 R.S.M. 1902,, c. 116, s. 376— Legality of 
 ballots marked with assistance of deputy 
 returning officer— Secrecy of the ballot. 
 
 1. Section 66 of The Liquor License 
 Act, R.S.M. 1902, c. 101, provides com- 
 pletely for the giving of notice of the 
 voting on a local option by-law under the 
 Act, and there is nothing in the Act which 
 incorporates the provisions of section 376 
 of the Municipal Act, R.S.M. 1902, c. 116, 
 so as to require the notices provided for 
 by that section. 
 
 2. Section 68 of the Liquor License Act 
 does not incorporate any provisions of the 
 Municipal Act with respect to matters 
 prior to the polling, especially the matter 
 of notice of the voting which is inde- 
 pendently and specifically dealt with in 
 section 66. 
 
 3. The vote of an elector who requests 
 assistance in marking his ballot cannot be 
 legally taken without strict compliance 
 with section 119 of The Municipal Act, 
 and, when four votes were so taken with- 
 out the oath prescribed by that section, a 
 by-law carried by a majority of only two 
 should be quashed, because, without 
 violating the secrecy of the ballot, it 
 could not be shown that a majority of the 
 electors voted for the by-law. 
 
 4. The use of the form of ballot pre- 
 scribed by section 4 A of chapter 31 of 9 
 Edw. VII., amending section 68 of the 
 Act, at the voting on a local option 
 by-law, is a sufficient compUance with the 
 statute, although it does not expressly 
 state what is to be the effect of a voter 
 marking his ballot "For license" or 
 "Against license." Re Rural Munici- 
 pality of Shoal Lake, 20 M.R. 36. 
 
 3. Publication of the notice— iiyuor 
 
 License Act— Quashing by-law — Notice of 
 final reading — Hour of day — Calculation 
 of time — Method of procedure prescribed by 
 statute imperative. 
 
 A notice published tmder R.S.M., c. 90, 
 s. 63, of a local option by-law staled that 
 the vote of the electors would be taken on 
 Tuesday, the 10th day of May, 1892, and 
 that the further consideration of the 
 by-law after taking the vote and the final 
 reading would be given by the CouncU^in 
 the Village of Treherne on the 17th day of 
 May, A.D. 1892. 
 
 Held, that the notice was insufficient, 
 as to the further consideration and final 
 reading of the by-law, because the hour 
 of the day was not designated. 
 
 The notice was published on the 6th, 
 13th, 20th, 23rd, 27th and 30th days of 
 April. 
 
 Held, that the notice was not published 
 at least one month before the vote was 
 taken. What is required by the statute 
 is at least one publication in each week of 
 the month before the vote is taken and, 
 for the purpose of reckoning weeks, it is 
 necessary to begin with the day of the 
 first pubUcation and not with the first 
 day of an ordinary week. 
 
 Held, also, that the only safe course is 
 to act on the supposition that the Legis- 
 lature meant what it said when it pre- 
 scribed the method of procedure, and to 
 hold the by-law invaUd if the method lias 
 not been followed. Hall v. Rural Munici- 
 pality of South Norfolk, 8 M.R. 430. 
 
 Distinguished, Re Brandon Election, 20 
 M.R. 705. 
 
655 
 
 LOCAL OPTION BY-LAW. 
 
 656 
 
 VI. Petition to Council. 
 
 1. Detaching signatures from head- 
 ings of petitions and pasting them 
 below the signatures on another 
 petition — Liquor Ldcense Act, B.S.M. 
 1902, c. 101, s. 62. as re-enacted by 9 Edw. 
 VII, c. 31, s. 2. Injunction to prevent 
 submission of by-law. 
 
 A number of petitions to the council of 
 the municipality asking for the passage of 
 a local option by-law under section 62 of 
 the Liquor License Act, R.S.M. 1902, 
 c. 101, as re-enacted by s. 2 of c. 31 of 9 
 Edw. VII., were signed by persons aggre- 
 gating more than twenty-five per cent of 
 the resident electors whose names appeared 
 on the last revised municipal voters' list, 
 but, before being handed to the clerk, the 
 printed headings of all but one of the 
 petitions were cut off, and the rest of the 
 sheets of paper containing only the 
 sigriatm'es pasted successively below the 
 signatures on the one petition not thus 
 mutUated. These latter signatures were 
 not themselves sufficiently numerous. 
 
 Held, following Re Williams anU Bramp- 
 ton, (1908) 17 O.L.R. 398, that the docu- 
 ment presented to the council was not 
 such a petition ag the Act requires and 
 that an injunction should issue, on the 
 application of an. owner of a licensed hotel, 
 to prevent the reeve and councillors from 
 submitting a by-law to the electors as 
 prayed for. 
 
 Little V. McCartney, (1908) 18 M.R. 323, 
 distinguished. Adams v. Woods, Be Penv- 
 bina Municipality, 19 M.R. i!85. 
 
 2. Receipt of, by council. 
 
 The receipt by the clerk of a Munici- 
 paUty of a petition for a Local Option 
 by-law under section 62 of the Liquor 
 License Act, R.S.M. 1902, c. 101, as 
 amended by section 2 of chapter 26 of 7 
 & 8 Edw. VlL, is not a receiving of the 
 same by the council withm the meaning 
 of the Act, and, when there was no meet- 
 ing of the council after the petition reached 
 the clerk until the third of October, a 
 mandamus to compel the council to sub- 
 mit a by-law to the vote of the electors 
 should not be granted. Re North Cypress, 
 McRae v. Elmshurst, 18 M.R. 315. 
 
 3. Separate petitions — Liquor License 
 Act, B.S.M. 1902, c. 101, us. 61-7S— Proof 
 
 of signatures by sufficient number — Ad- 
 journment of time appointed fov summing 
 up votes — Time when by-law to come into 
 operation — Mistake in clerk's certificate as 
 
 to result of vote — Substantial compliance 
 with statutory requirements. 
 
 On an application to quash a local 
 option by-law passed under the pro- 
 visions of sections 61 to 73, inclusive, of 
 the Liquor License Act, R.S.M. 1902, 
 c. 101, 
 
 Held, that none of the following objec- 
 tions to the proceedings were fatal to the 
 by-law: — 
 
 1. That, instead of one petition, about 
 13 papers, all with the same printed head- 
 ing, each having a number oi signature?, 
 were tied up in a roll, the sheets not 
 fastened , together, and presented t6 the 
 council, it being admitted that the heading 
 of each was suffio ent for a petition. 
 
 2., That there was no entry in the 
 minutes of the proceedings of the council 
 showing receipt of the petition, such 
 receipt naving been recited in the by-law. 
 
 3. That there was i o proof that the 
 petitions altogether had been signed by 
 one-fourth in number of the electors. 
 
 It was for the council to satisfy itself 
 that this condition had been complied 
 with, and it must be assumed that it 
 performed its duty in that respect. 
 
 4. That, instead of preparing and post- 
 ing up "a Ust of those entitled to vote on 
 such by-law," as required by section 67 
 of the Act, the clerk of the municipality 
 posted up and supplied merely copies of 
 the last revised list of electors of the 
 municipality for the year certified by him 
 to be true copies thereof. Under section 
 63 of the Act, the two fists would contain 
 the same names. 
 
 5. That the certificate of the clerk as to 
 the result of the voting, by mistake, 
 referred in the body of it to the by-law 
 by a wrong number. The heading of 
 the certificate, however, sufficiently show- 
 ed what by-law was referred to. , 
 
 6. That, instead of summing up the 
 votes on the day appointed by the by-law, 
 the clerk, on account of the non-receipt of 
 one of the ballot boxes, adjourned the 
 proceeding to a future day, for which there 
 is no statutory authority. 
 
 7. That the by-law received its third 
 reading on 27th December, 1904, and, 
 although passed in the afternoon of that 
 day, was declared to be in force on that 
 day, that is, as alleged, from the beginning 
 of that day. 
 
 When there has been a virtual com- 
 pliance with the statute and the departures 
 complained of have been rather from the 
 letter than from the spirit of the enact- 
 ment, the Court has a discretion in 
 
657 
 
 LORD CAMPBELL'S ACT. 
 
 658 
 
 determining whether there has been' a 
 sufficient compliance, and whether effect 
 should be given to the objections on an 
 application to quash. 
 
 White V. East Sandwich, (1882) 1 O.R. 
 530, and Young v. Binbrook, (1899) 31 
 O.R. 108, followed. Re Caswell and the 
 Rural Municipality of South Norfolk, 15 
 M.R. 620. 
 
 4. Signatures on separate sheets of 
 paper — By-law to repeal, submission of — 
 Liquor License Act, R.S.M. 1902, c 101,, 
 s. 74, as re-enacted by 9 Edw. VII, c. 31, 
 s. 4. 
 
 It is no objection to a petition under 
 section 74 of the Liquor License Act, 
 R.S.M. 1902, c. 101, as re-enacted by 9 
 Edw. VII., c. 31, s. 4, for repeal of a local 
 option by-law, that most of the signatures 
 are on separate sheets of paper pinned to 
 the one containing the heading and some 
 of the si^atures, although no portion of 
 the petition appears upon such added 
 sheets, unless it is shown that such were 
 not attached to the first one at the time 
 the signatures were made thereon. 
 
 Adams v. Woods, 19 M.R. 285, distin- 
 guished, as in that case a nurnber of the 
 sheets attached had been mutilated by 
 cutting ofE the headings before presenta- 
 tion to the council. Moore v. McKibbin, 
 Re Roblin Municipality, 19 M.R. 461. 
 
 6. Several petitions made into one 
 by cutting off headings — Injunction 
 against submission of by-law — Liquor Li- 
 cense Act, R.S.M. 1902, c. 101, s. 62, as 
 re-enacted by 9 Edw. VII, c. 31, s. 2. 
 
 A number of separate petitions for the 
 submission of a local option by-law under 
 section 62 of the Liquor License Act, 
 R.S.M. 1902, 0. lOl, as re-enacted by 9 
 Edw. VII, c. 31, s. 2, containing signa- 
 tures of more than the required number 
 of the resident electors, were received by 
 the clerk of the, municipality, who handed 
 them back to the person presenting them, 
 to carry out a suggestion ae to how they 
 should be put together. The latter then 
 made the many petitions into one by 
 cutting off the headings from all but one 
 and putting aU the signatures after the 
 one heading left. He then left this with 
 the clerk. 
 
 Held, that the first reception of the 
 petition by the clerk was not the receipt 
 by him contemplated by the statute, and 
 tibat only the petition, as afterwards filed, 
 could be considered as having been pre- 
 sented to the council, and, foUqwing 
 
 Adams v. Woods, 19 M.R. 285, that such 
 mutilated petition was not such a petition 
 as the Act requires, and, therefore, the 
 injunction issued by the Judge appealed 
 from, to prevent the submission of the 
 by-law by the council, should stand. 
 
 Two of the headings cut off as above 
 desci-ibed were altogether insuflBcient as 
 petitions under the Act, and, although 
 the number of the signatures to these 
 imperfect petitions could not, as a result 
 of the mutilation, be defiiiitely ascer- 
 tained, it was beheved by the Judge 
 appealed from that there was not the 
 necessary percentage of the electors on 
 the remaining petitions, and he 
 
 Held, that everything should be pre- 
 sumed in odium spoliatoris and that his 
 finding should be that there were not 
 enough signatures to uphold the petition. 
 liarkin v. Poison, Re Rockwood Munici- 
 V, 19 M.R. 612. 
 
 6. Using petition of previous year 
 not then acted upon — Liquor License 
 Act, R.S.M. 1902, c. 101, s. 62, as re- 
 enacted by 9 Edw. VII, c. 31, s. 2. 
 
 A petition to the council of a munici- 
 pality to submit to the vote of the electors 
 a local option by-law under section 62 of 
 the Liquor License Act, R.S.M. 1902, 
 c. 101, as re-enacted by 9 Edw. VII, c. 31, 
 s. 2, filed with the clerk in one calendar 
 year with the intention that it should be 
 acted upon in that year, but not so acted 
 upon, may be acted upon as a vahd 
 petition for the submission of such a 
 by-law in the following year, even if a 
 portion of the territory of the munici- 
 pahty in which some of the petitioners 
 resided has, in the meantime, been incor- 
 porated into a separate village, provided 
 that there still remain on the petition 
 enough names of persons resident in the 
 reduced municipality. Hatch v. Rath- 
 well, Re Oakkmd Municipality, 19 M.R. 
 465. 
 
 See Criminal Law, I, 2. 
 
 — Injunction, IV, 2. 
 
 — ■ Liquor License Act, 3. 
 — -■ municipalitt, i, 4. 
 
 — Prohibition op Sale op Liquok. 
 
 — Quashing By-law. 
 
 LORD CAMPBELL'S ACT. 
 
 1. Action for death happening out 
 of the jurisdiction — Necessity for ad- 
 ministration granted by authorities in place 
 
659 
 
 LORD CAMPBELL'S ACT. 
 
 660 
 
 where cause of action arose — Workmen's 
 Compensation for Injuries Act, Ii.S.M. 
 1902, c. 178. 
 
 Allen Tait Johnson, while engaged as a 
 switchman on defendants' railway at 
 Port Arthur, Ontario, met with' injuries 
 which resulted in his death. 
 
 The plaintiff, his widow, was appointed 
 administratrix of his estate by a Manitoba 
 Surrogate Court and brought this action 
 for damages, claiming, both at Common 
 Law and under The Workmen's Com- 
 pensation for Injuries Act, R.S.M. 1902, 
 c. 178. 
 
 Held, following Couture v. Dominion 
 Fish Co., 19 M.R. 65, that the plaintiff 
 could not sue under the corresponding 
 Ontario Act without having been first 
 appointed administratrix by an Ontario 
 Court, and that, as the injury took place 
 in Ontario, the Manitoba Act could not 
 apply, and, there being no such right of 
 action at Common Law, the entry of a 
 non-suit by the trial Judge was right. 
 Johnson v. C. N. R., 19 M.R. 179. 
 
 2. Action against resident of Prov- 
 ince for death happening out of the 
 jurisdiction — Necessity for administrch 
 tion granted by authorities of place where 
 cause of action arose — General Ordinances, 
 N.W.T. 1905, p. 195—7 & 8 Edward VII, 
 c. 49, s. 2 (£>). 
 
 The plaintiff sued as administrator of 
 the estate of his deceased wife appointed 
 by the proper court of the Province of 
 Manitoba, of which they were residents, 
 for damages for the death of his wife in 
 the North West Territories, alleged to 
 have been caused by the neghgence of the 
 defendants, whose domicile was also in 
 Manitoba. 
 
 Held, (Howell, C.J.A., dissenting,) 
 1. If the alleged wrongful act or negli- 
 gence was /Uot actionable where it took 
 place, it would not be actionable in Mani- 
 toba, even though the defendants were 
 domiciled there. 
 
 Phillips v.Eyre, (1870) L.R. 6 Q.B. 1; 
 The Moxham, (1876) 1 P.D. 107, and 
 Machado v. Pontes,. [1897] 2 Q.B. 233, fol- 
 lowed. 
 
 (2) The rule actio personalis moritur 
 curri persona would apply and no action 
 could be brought in the Territories for 
 such wrongful act or negligence, unless 
 Lord Campbell's Act or some statute 
 equivalent thereto were in force there. 
 
 (3) Such equivalent statute, was; An 
 Ordinance respecting Compensation to the 
 Families of Persons killed by Accidents, 
 
 printed at page 195 of the General Ordi- 
 nances of the North West Territories of 
 Canada, 1905, requiring that such action 
 shall be brought by and in the name of 
 the executor or administrator of the 
 deceased, and it must be assumed that the 
 Legislature meant the executor or admin- 
 istrator appointed as such under the laws 
 in force in the North West Territories, and 
 the plaintiff, not having received such 
 apjjointment, could not maintain the 
 action. 
 
 Doidge v. Mimms, (1900) 13 M.R. 48, 
 followed. 
 
 Dennick v. R. R. Co., (1880) 103 U.S.R. 
 11, distinguished. 
 
 (4) Section 2 of chapter 49 of 7 & 8 
 Edward VII. (D), giving jurisdiction to 
 the Superior Courts of Manitoba and 
 other Provinces to try civil cases with 
 respect to persons and property in a 
 certain portion of the Territories, does 
 not authorize the Court here to apply the 
 laws of Manitoba in determining rights 
 arising in the Territories, but the Court 
 must, while applying its own practice and 
 procedure, decide such cases in accordance 
 with the laws in force in such Territories. 
 Couture v. Dominion Fish Company, 19 
 M.R. 65. 
 
 3. Reasonable expectation of pecun- 
 iary benefit from continuance of life 
 
 — Motion against verdict of jury — King's 
 Bench Act, Rules 639, 640, 642 — Negligence 
 — Master and servant — Contributory negli- 
 gence. 
 
 The plaintiffs were the parents and 
 sisters of the deceased, who was killed by 
 an electric shock whilst working in electric 
 light works owned and operated by 
 defendants, and in consequence, as it was 
 alleged, of defects in the appliances 
 suppUed by the defendants at the works. 
 
 The deceased, who was the only son of 
 the rector of a small parish near Montreal, 
 with an income of about 1600 a year, had 
 been given a college education and had 
 returned home when about 21 years old. 
 For a time he remained at home, earning 
 nothing. Then he spent some time in 
 the insurance business in Vermont. Then, 
 on account of his father's illness, he went 
 home, but soon left for Manitoba in 
 search of occupation. There, after work- 
 ing at several things for about three 
 years, he was employed by the defendants 
 to manage their electric works at a salary 
 of $115 a month, out of which he had to 
 pay $45 a month to an engineer and some- 
 times to hire other assistance. He had 
 
661 
 
 LOSS OF WRIT. 
 
 662 
 
 been thus "emt)loyed about three months 
 when he met his death. The parents 
 were getting old and were in failing 
 health, and it was not shown whether 
 they had or had not any means beyond 
 the income of $600 a year. The deceased 
 contributed nothing to the support of 
 the family during all the time he was in 
 Manitoba; but, according to the father's 
 evidence, he had been a great help to 
 him when at home and had assisted him 
 in many ways in his parish work and in 
 matters of business, and was "a noble, 
 faithful son," efficient in every way,' 
 steady and industrious, and "an affec- 
 tionate son and brother." 
 
 Held, that there was nothing in all this 
 to warrant the inference of a reasonable 
 expectation of any pecuniary benefit to 
 the plaintiffs from' a continuance of the 
 Hfe of the deceased and that the verdict 
 of the jury in favor of the plaintiffs should 
 be set aside. 
 
 Sykes v. North-Eastem Railway Co., 
 (1875) 44 L.J.C.P. 191, and Mason v. 
 Bertram, (1889) 18 O.R. 1, followed^ 
 
 Franklin v. South-Eastem Ry. Co., "(1858) 
 3 H. & N. 211; Dalton v. South-Eastem 
 Ry. Co., (1858) 4 C.B.N.S. 296; Hether- 
 ington v. North Eastern Ry. Co., (1882) 9 
 Q.B.D. 160, and Blackley v. Toronto Ry. 
 Co., (1897) 27 A.R. 44 (n), distinguished. 
 
 Held, also, that the Court could not, 
 under any of ' the Rules in The King's 
 Bench Act, 58 & 59 Vic, c. 6, dismiss the 
 action or enter a non-suit or verdict for 
 defendants in the face of the verdict of 
 the -jury. Rules 639, 640 and 642 dis- 
 cussed. 
 
 Connecticut Mutual, &c., Co. v. Moore, 
 (1881) 6 A.C. 644, and British Columbia 
 Towing, &c., Co. v. Sewell, (1883) 9 S.C.R. 
 527, followed. 
 
 New trial ordered without costs of 
 former trial. Costs of the apphcation to 
 be costs in the cause to the defendants in 
 any event. Davidson v. Stuart, 14 M.R. 
 74. 
 
 On appeal to the . Supreme Court the 
 order for a new trial was affirmed on the 
 ground that there was no breach of duty, 
 on the part of the defendants towards 
 deceased, who had undertaken to remedy 
 the very defects that had caused his 
 death, and the faUure to discover them 
 must be attributed to him, 34 S.C.R. 215. 
 
 ,See Administration, 4. 
 — Workmen's Compensation for In- 
 juries Act. 
 
 LOSS OF WRIT. 
 
 See Practice, VIII, 2. 
 
 LOST NOTE. 
 
 See Practice, XXVIII, 13. 
 
 LOTTERY. 
 
 See Criminal Law, VIII. 
 
 LUNATIC. 
 
 1. Court's administration of estate 
 
 — lAability for failure of banker—Com- 
 mittee's disposiiMn of m^ney — Interest — 
 Compensation — Support of lunatic's wife. 
 
 The death of the lunatic determines the 
 jurisdiction in lunacy except for certain 
 purposes, as accounting, deHvery of 
 property, etc. 
 
 The paramount consideration in dealing 
 with a lunatic's estate is his comfort and 
 benefit, and the Court exercises great 
 freedom in dealing with the estate. 
 
 Expenditures which have been made on 
 behalf of a lunatic without authority may 
 be allowed by the Court, but not by the 
 Master. Such expenditures wiU be less 
 readily sanctioned after the death of a 
 lunatic. 
 
 Where a committee deposits money 
 with a banker, the mere fact of his sus- 
 pension is sufficient ground for presump- 
 tion of neghgence; though this presump- 
 tion may be rebutted. The fact that the 
 banker is a private banker will not of 
 itself render the committee hable as being 
 negUgent. The fact that the banker 
 selected by the committee is the one 
 formerly employed by the lunatic is an 
 element in favor of the committee. 
 
 It is the duty of the committee to pay 
 into court moneys which will not, within 
 a short time, be required for the purposes 
 of the estate. 
 
 A committee is Hable for interest upon 
 money received by him from its receipt 
 until payment. 
 
 The Court has power to allow compen- 
 sation to a committee, but the Master 
 
663 
 
 MACHINERY. 
 
 664 
 
 has no such power unless the matter is 
 specially referred to hijn. 
 
 The wife of a lunatic has authority to 
 pledge her husband's credit for necessaries 
 for her support. Re Nevins, 5 M.R. 137. 
 
 2. Declaration of lunacy — King's 
 Bench Act, Rvle 772 — Lunacy Act, U.S.M. 
 1902, c. 103, ss. 3, 11, 15 — Personal service 
 of petition on lunatic — Service out of the 
 jurisdiction — Reguirerrtents for granting of 
 order — No presumption against supposed 
 lunatic from fact of confinenunt in a lunatic 
 asylum. 
 
 Before a declaration of lunacy will be 
 made on a summary inquiry under section 
 11 of The Lunacy Act, R.S.M. 1902, 
 c. 103, the following rules must be strictly 
 complied with: 
 
 (a) The petition must be indorsed as 
 required by rule 772 of The King's 
 Bench Act, and should be signed by the 
 petitioner. 
 
 (5) It must be personally served upon 
 the supposed Ixmatic: Re Miller, 1 Ch.Ch. 
 215, unless service has been dispensed 
 with. 
 
 (c) Personal service will only be dis- 
 pensed with when it would be dangerous 
 to the lunatic to serve him, and, to prove 
 that, the affidavit of the medical superin- 
 tendent of the asylum in which the party 
 is confined is not sufficient without cor- 
 roboration: Re Newman, (1869) 2 Ch.Ch. 
 390; Re Mein, (1869) 2 Ch.Ch. 429. 
 
 (d) The petition should be presented by 
 the nearest relative, and, where the 
 petitioner is out of the jvurisdiction, some 
 person within the iurisdiction should be 
 joined as co-petitioner: Hey wood & Mas- 
 sey's Lunacy Practice, 20. 
 
 (e) It should be supported by the affi- 
 davits of at least two medical men: Re 
 Patton, 1 Ch.Ch. 192, and such affidavits 
 must show all the facts evidencing the 
 lunacy from which the Court may judge 
 for itself whether or hot the prisoner is of 
 imsound mind: Mclntyre v. Kingsley, 1 
 Ch.Ch. 281; Mx parte Persse, (1828) 1 
 Moll. 219. 
 
 (/) There should also be affidiavits from 
 members of the family of the alleged 
 lunatic and other persons who know him, 
 not merely giving their opinions, but 
 Stating with particularity the material 
 facts pointing to unsoundness of mind 
 and incapacity to manage himself and 
 his affairs: Renton on Lunacy, 259. 
 
 Nothing can be inferred against the 
 supposed lunatic from the fact that he is 
 
 confined in a lunatic asylum. He may 
 be there improperly. 
 
 ' If, however, proper evidence is produced 
 that the person has been found a lunatic 
 by a foreign tribunal having jurisdiction 
 to so find, the Court would generally act 
 upon such fiiuding, though not binding 
 upon it. 
 
 It is doubtful whether there is any 
 power to serve the petition out of the 
 jurisdiction. Leave to do so was given 
 m Re Wehh, (1906) 12 O.L.R. 194, but 
 that was under the Ontario rules, which 
 are not the same as those in force here. 
 Re Bulger, 21 M.R. 702. 
 
 MACHINERY. 
 
 See FiXTTTHES, 4, 6, 7. 
 
 MAGISTRATE. 
 
 Bias — Disqualification — Pecuniary 
 interest — Trial of charge by magistrate who 
 is also a member of the hoard of police com- 
 missioners of a city — Resoluiion of commis- 
 sioners instructing prosecution of thai class 
 of o^ences— Prohibition — Practice — Civil or 
 criminal proceedings — King's Bench Act, 
 R.S.M. 1902, c. 40, Rule 1. 
 
 1. The police magistrate of the City of 
 Winnipeg, who is also by statute a member 
 of the Board of Pohce Commissioners, is 
 not disquaUfied to hear and determine a 
 charge of selling Uquor without Ucense by 
 reason of having, at a meeting of the board 
 previously held, moved a resolution- in- 
 structing a partictilar member of the 
 police force to take active steps for the 
 prosecution of offences against the Liquor 
 License Act in unUcensed places, without 
 naming any individual or class of persons 
 to be prosecuted, although the charge in 
 question had been laid by that officer. 
 
 Queen v. Handsley, (1881) 8 Q.B.D. 
 383, and Reg. v. Pettitmangin, (1864) 9 
 L.T.N. S. 683, foUowed. 
 
 Queen v. Lee, (1882) 9 Q.B.D.- 394; 
 Queen v. Allan, (1864) 4 B. & S. 915, and 
 Queen v. Henley, [1892] 1 Q.B. 504,. 
 distinguished. 
 
 2. The Pohce Magistrate of the City is 
 not disqualified to hear and dispose of 
 such a charge by reason of his being a 
 ratepayer of the City and so benefiting to 
 a small extent by any fine which might be 
 imposed, part of which would be received 
 by the City, or by reason of his being paid • 
 a salary by the City. 
 
665 
 
 MAINTENANCE AND CHAMPERTY. 
 
 666 
 
 Ex parte McCoy, (1896) 1 Can. Cr. Cas. 
 410, followed. 
 
 3. An application for an ord^r to pro- 
 hibit a magistrate from hearing a criminal 
 charge on the ground of disquahfication 
 through bias is itseK a civil and not a 
 criminal proceeding, and the practice to 
 be followed is that laid down in the Bang's , 
 Bench Act, R.S.M. 1902, c. 40, and the 
 Rules thereunder, instead of by rule nisi 
 as in crimiaal proceedings. Rex v. Siick 
 Sin, 20 M. R. 720. 
 
 See LiQTJOR License Act, 6. 
 
 MAINTENANCE AND CHAMPERTY. 
 
 See Solicitor and Client, I, 3. 
 
 MAINTENANCE OF INFANT. 
 
 See Infant, 8. 
 
 MALICE. 
 
 See False Impkisonmbnt, 3. 
 
 — Libel, 2, 6. 
 
 — Malicious Pkosbcution, 1, 2, 5. 
 
 MALICIOUS PROSECUTION. 
 
 1. Advice of counsel or magistrate — 
 
 Mistake in law or fact — Prosecution with 
 view to compensation — No criminal charge 
 laid. 
 
 A child having strayed and come into 
 the house of the plaintiff, the defendant, 
 her guardian, applied for the child but was 
 refused. Defendant then went to a magis- 
 trate for "an order for the delivery of the 
 child." The magistrate informed defend- 
 ant that he had no power to give such an 
 order and, after consultation with defend- 
 ant, issued a summons to plaintiff alleging 
 that the plaintiff "did detain one H. B. 
 with intent to deprive the said A. P. S. of 
 possession of the said H. B. contrary to 
 the form of the statute," &c. Plaintiff 
 was committed for trial, indicted and 
 acquitted. 
 
 After verdict for plaintiff in an action 
 for malicious prosecution and upon a 
 motion for non-suit or new trial, 
 
 Held, 1. (Bain, 3., dubitante)— That the 
 action lay, although no criminal charge 
 had been sufBciently alleged in the infor- 
 mation. 
 
 2. If a party lays all the facts of his case 
 fairly before counsel, and acts bona fide 
 upon the opinion given by that counsel, 
 he is not liable to an action. 
 
 3. Advising with a magistrate 'is a cir- 
 cumstance only, for the consideration of 
 the jury in deciding the question of maUce. 
 
 4. In considering the question of reason- 
 able and probable cause, a defendant may 
 be protected although he was mistalcen 
 upon a matter of fact, if his mistaken 
 belief was honest and bona fide, but not 
 upon a matter of law. 
 
 5. Proceedings not with a view to the 
 punishment of an abducter, but by means 
 thereof to regain possession of the child, 
 exhibit a malicious motive. Rex v. 
 Stewart, 6 M. R. 257. 
 
 2., Authority of manager of Com- 
 pany to order arrest. 
 
 The manager of a company (resident at 
 its head office) directed the prosecution of 
 the plaintiff for larceny of the Company's 
 property. The general soUcitor of the 
 Company advised the arrest, prepared the 
 information and conducted the prosecu- 
 tion. The duties of the manager were 
 prescribed by by-law. They did not 
 provide for taking such proceedings. 
 There was no evidence of express author- 
 ity from the Company, or that the arrest 
 was within the scope of the manager's 
 duties. 
 
 Held, (DuBTjc, J., diss.) That the 
 Company was not liable for the artest. 
 
 The objection that the Company had 
 not authorized arrest was taken on 
 motion for non-suit at the close of the 
 plaintiff's case, but riot as an objection to 
 the judge's charge. 
 
 Held, That the point was open in 
 Term. 
 
 Per DuBtrc, J. — ^Evidence that a prose- 
 cution was instituted in order to save the 
 trouble and expense of a law-suit in a 
 court of civil jurisdiction, tends to show 
 an "indirect motive" and lack of good 
 faith. 
 
 2. Where a verdict cannot be impeached 
 except upon the ground of excessive 
 damages, the Court may, with the plaint- 
 iff's consent, reduce the damages. Miller 
 V. Manitoba Lumber & Fu^l Co., 6 M. R. 
 487. 
 
667 
 
 MALICIOUS PROSECUTION. 
 
 668 
 
 3. Corporation. 
 
 A municipal as well as a trading corpor- 
 ation may be liable for malicious prose- 
 cution. 
 
 The mayor of the city assuming to act 
 as a,n officer of the city laid an information 
 against the plaintiff; and a firm of solicitors 
 assuming to act for the city advised him 
 in the matter, prepared the information 
 and attended upon its return on behalf of 
 the prosecutors. The solicitors reported 
 the matter to the council and the city 
 paid for the solicitors' services. 
 
 Held, That the city was liable for ,the 
 action taken by the mayor. 
 
 Where the facts are distinct and 
 uncontradicted and there is no inference 
 of fact required to be drawn, the 
 question of reasonable and probable 
 cause is one wholly of law. But, where 
 any fact or inference of fact is involved, 
 the question must be determined by the 
 jury under proper direction from the judge. 
 
 Opinion of counsel will not protect from 
 an action for malicious prosecution unless 
 the party uses reasonable care to ascertain 
 the facts and lays them before counsel. 
 
 Damages reduced from $3000 to $500, 
 no express maUce having been proved, 
 very little if any damage to reputation 
 having been sustained and the plaintiff's 
 arrest having lasted but a few hours. 
 Wilson V. City of Winnipeg, A M. R. 193. 
 
 4. Determination of proceedings in 
 plaintiff's favor — Termination of prose- 
 cution when two justices decide differently. 
 
 On the preliminary hearing of a charge 
 of arson against the plaintiff, one justice 
 decided that he should be committed for 
 trial and the other that the information 
 should be dismissed and nothing more was 
 ever done in the matter. 
 
 Held, that it- could not be said that the 
 plaintiff had been discharged on this in- 
 vestigation so as to entitle him to bring 
 an action for malicious prosecution against 
 the informant. 
 
 Abrath v. North Eastern By. Co., (1883) 
 11 Q.B.D. 445; Metropolitan Bank v. 
 Pooley, (1885) 10 A.C. 210; Parton v. 
 Hill, (1864) 12 W.R. 754, and Baxter v. 
 Gordon, (1907) 13 O.L.R. 598, followed. 
 
 Semble. The justices might have been 
 compelled by mandamus to make an 
 order of dismissal under the circumstances, 
 and, if they had made such an order, the 
 plaintiff could have proceeded with his 
 action: Kinnis v. Graves, (1898) 67 
 L.J.Q.B. 584. Durrand v. Forrester, 18 
 M. R. 444. 
 
 6. Want of reasonable and probable 
 cause — Burden of proof — Honest belief of 
 prosecutor — Province of Judge and jury — 
 Questions to jury^Malice — Reasonahle care 
 in ascertaining facts—Search warrant. 
 
 1. Although a prosecutor, before com- 
 mencing the prosecution of a person whom 
 he suspects to be guilty of a crime, must, 
 to protect himself from a subsequent 
 action for damages for maUcious prose- 
 cution, take reasonable care to acquaint 
 himself with the facts, such reasonable 
 care does not necessarily include making 
 inquiries of the suspected person himself 
 or asking him for an explanation, especially 
 when the prosecutor's soUcitor advises him 
 to refrain from doing so. 
 
 Archibald v. McLaren, (1892) 21 S.C.R., 
 per Pattersdn, J., at p. 603, and Malcolm 
 V. Perth, (1898) 29 O.R. 406, followed. 
 
 2. The question of reasonable and prob- 
 able cause being for the Judge, and not 
 the jury, to decide, after obtaining the 
 opinion of the jury, when necessary, upon 
 facts in dispute upon which such question 
 depends, it was not, in the circumstances 
 of this case, safe or proper to submit to 
 the jury the question Did the defendants 
 take reasonable care toinform themselves 
 of the true facts of this case?" as covering 
 all facts upon which the question of 
 reasonable and probable cause depended. 
 
 Opinidn of Cave, J., in Brown v. Hawkes, 
 [1891] 2 CJ.B. 718, followed. 
 
 3. Malice cannot be inferred from the 
 fact that the defendant, in giving evidence 
 at the trial, stated that he still believed 
 in the guilt of the plaintiff. 
 
 4. The absence of reasonable and 
 probable cause for the prosecution is not 
 of itself evidence of malice, but only in 
 cases where the conduct of the prosecutor, 
 in instituting the prosecution, is shown to 
 have been so unreasonable as to lead to 
 the inference that the prosecution could 
 only have been the result of malice. 
 
 Brown v. Hawkes, supra, followed. 
 
 5. A finding of the jury that the de- 
 fendants had been actuated by some 
 motive other .than an honest desire to 
 bring a guilty man to justice, if unsup- 
 ported by the evidence, will be disregarded. 
 
 6. If the prosecutor has had a search 
 warrant issued and executed in order to 
 obtain evidence in support of his charge, 
 the plaintiff, in a subsequent action for 
 malicious prosecution, would have a right 
 to have that considered in aggravation of 
 damages in the event of his getting a 
 verdict in the action; but, if he fails, he 
 can have no separate cause of action 
 
669 
 
 MANDAMUS. 
 
 670 
 
 based on the issue or execution of the 
 search warrant. 
 
 7. If the jury does not answer the 
 question as to the defendants' honest 
 belief in the case which they laid before 
 the magistrate, and the plaintiff in the 
 opinion of the Court has failed to satisfy 
 the onus upon him of proving want of 
 reasonable and probable cause and maUce, 
 a verdict entered for him at the trial 
 should be set aside, notwithstanding the 
 finding of the jury, unsupported by the 
 evidence, that the defendants had not 
 taken reasonable care to inform them- 
 selves of the true facts of the case and had 
 been actuated by some improper motive, 
 and a non-suit should be entered pursuant 
 to Rule 651 of the K.B. Act as re-enacted 
 by 10 Edw. VII, c. 17, s. 7, in the absence 
 of any mention of fresh evidence to 
 warrant the ordering of a new trial. 
 Renton v. Gallagher, 19 M. R. 478. 
 
 Appeal to Supreme Court dismissed. 
 47 S.C.R. 393. 
 
 Leave to appeal to Privy- Council 
 refused. 
 
 See Assault. 
 
 — Evidence, 5. 
 
 -^ False Imprisonment, 3. 
 
 — Garnishment, I, 6. 
 
 — Pleading, X, 7. 
 
 — Practice, XVI, 6. 
 
 MANDAMUS. 
 
 1. Delivery of papers. 
 
 Mandamus lies to compel the delivery 
 of papers by a pubUc officer to his suc- 
 cessor. 
 
 Meetings of a municipal council are 
 prima facie regular and valid, and a 
 person acting as clerk at these meetings 
 is, de facto, the clerk. 
 
 A by-law requiring the presence of the 
 . reeve, as a condition of the transaction of 
 business at a meeting, is invalid. 
 
 Unless the right of the jelator to the 
 papers is clear, a peremptory mandam,us 
 will not be ordered, but only an alternative 
 writ. Beg. ex rel. Pacavd v. Diibord, 3 M. 
 R. 15. 
 
 2. Compelling Mayor of city to sign 
 cheque for payment approved by 
 Council — Existence of other adequate rem- 
 edy. 
 
 1. One who has a vahd legal claim 
 against a municipal corporation has no 
 
 right to a mandamus to compel the mayor 
 to sign a cheque for the amount although 
 the council has passed a resolution ap- 
 proving payment over the Mayor's veto, 
 because the claimant has another adequate 
 remedy, nameljr, to proceed by action 
 against the municipality. 
 
 The Qv^en v. Hull and Selby Railway 
 Co., (1844) 6 Q. B. 70; In re Napier, 
 (1852) 18 Q.B. 695; Queen v. Registrar, 
 (1888) 21 Q.B.D. 131, foUowed. 
 
 2. The mere fact that the other remedy 
 is not against the defendant in the man- 
 damus proceeding does not prevent the 
 above rule applying. 
 
 The Queen v. Commissioners of Inland 
 Revenue, (1884) 12 Q.B.D. 461, followed. 
 Holmes v. Brown, 18 M. R. 48. 
 
 3. Production of assessment rolls — 
 
 Clerical error in copy — Who should apply 
 for mandamus — Alteration of boundaries — 
 Delay in making application for mandamus 
 — Inability to obey the writ — Remedy must 
 be effective — Municipal Act, R.S.M., c. 
 100, ss. 663 and 664 — Mandamus against 
 Secretary-Treasurer of Municipality. 
 
 The sheriff, having in his hands an un- 
 satisfied execution against the defendant 
 Municipality, proceeded under s. 663 of 
 the Municipal Act, R.S.M., v;. 100, and 
 served a copy of the writ of execution on 
 the Secretary-Treasurer of the Munici- 
 pality on I2th June, 1893. On the 25th 
 July following he demanded the production 
 of the assessment rolls for the purpose of 
 striking a rate to satisfy the execution, 
 but the Secretary-Treasurer refused to 
 comply with the demand. On the 27th 
 October following, the sheriff made a 
 similar demand and, having met with 
 another refusal, he appUed for a mandamus 
 to compel the Secretary-Treasurer to pro- 
 duce the rolls. 
 
 In the copy of the writ served on 12th 
 June, there was a clerical error, the year 
 1893 being written in two places instead 
 of 1890, but enough information appeared 
 in the copy to show that the error could 
 not mislead any one. 
 
 Held, (1) that the application was 
 rightly made by the sheriff and not by the 
 plaintiffs. 
 
 (2) That in view of the express wording 
 of ss. 663 and 664 of the Act, the proceed- 
 ings were properly directed against the 
 Secretary-Treasurer, instead of against 
 the Municipal Council. 
 
 (3) That an addition of territory to the 
 Municipality since the recovery of the 
 judgment made no difference in the lia- 
 
671 
 
 MANDAMUS. 
 
 672 
 
 bility of the defendants; for, by section 
 38 of the Municipal Act, the Municipal 
 Commissioner is exclusively Charged TVith 
 the adjustment of the assets and liabilities 
 of the municipalities whose boundaries 
 are in any way changed. 
 
 (4) That the application was not too 
 late, although the collector's roUs had 
 been made up and completed, the tax 
 notices sent out, and some taxes had 
 already been paid. The first steps taken 
 by the sheriff were in ample time to enable 
 the Council to make the required levy 
 
 ' themselves, and they cannot take advan- 
 tage of their own laches and neglect to 
 prevent the law being carried out. 
 
 (5) That, even if the sheriff would have 
 been unable to strike the rate and arrange 
 for the necessary levy the same year as 
 required by the statute, that would be no 
 reason for refusing the writ, for mere 
 inability to obey the writ has not in all 
 cases been considered a sufficient reason 
 for refusing it. 
 
 Reg. V. Birmingham, &c., Ry. Co., 2 
 Q.B. 47; Reg. v. G. W. R., 1 E. & B. 253; 
 Reg. V. York, Newcastle, &c., Ry. Co., 16 
 Q.B. 886, relied on. 
 
 London & Canadian Loan and Agency 
 Co. V. Rural Municipality of Morris, 9 M. 
 R. 377. 
 
 4. Production of books of munici- 
 pality — Municipal law. 
 
 It is the duty of the clerk of a munici- 
 pality, under the Manitoba Municipal Act, 
 to keep the books and records of the 
 municipality and of the council in his 
 office or in the place appointed by the 
 council, and neither the Reeve nor any 
 other person has any authority to take 
 any of these books or papers out of the 
 custody of the clerk. 
 
 A ratepayer applied to the clerk to 
 inspect the minutes of the meetings of 
 council and for certffied copies of certain 
 resolutions, tendering the proper fees. 
 
 Held, that the clerk could not excuse 
 himself for refusing the demand on the 
 ground that the Reeve had taken away 
 the books to Winnipeg for use in certain 
 litigation against the niunicipality, and 
 that he could not get the books or papers 
 so as to comply with the demand; and a 
 mandamus was granted. Re Cuddy, 10 
 M. R, 422. 
 
 6. Revision of voters' lists under the 
 Manitoba Election Act, R.S.M. 1902, c. 
 
 62 — Tower of Revising Officer to keep his 
 court open after expiration' of time limited 
 by Board of Registration. 
 
 A Revising- Officer appointed to revise 
 and close the Usts of electors under The 
 Manitoba Election Act, R.S.M. 1902, c. 
 52, although directed by the Board of 
 Registration to' hold his sitting for that 
 purpose on a certain day and between 
 certain hours, has power to continue the 
 sitting to a later hour and on a subseejuent 
 day or days if necessary to enable him to 
 hear and dispose of all applications brought 
 before him. 
 
 Where, however, it was shown that, 
 before the hearing of the apphcation for a 
 mandamus to the Revising Officer to 
 compel him to re-open his court for the 
 purpose of hearing further applications 
 to be placed on the Usts, he had, piu-suant 
 to section 92 of the Act, transniitted the 
 Ust of electors and all books and papers to 
 the Chairman of the Board of Registration, 
 and that, befoi-e the final argument of the 
 motion, the Chairman had, pursuant to 
 section 97 of the Act, sent the revised lists 
 to the King's Printer and the books, docu- 
 ments and other papers to the Clerk of 
 the Executive Council, 
 
 Held, that the issue of a mandamus to 
 the Revising Officer as asked for should be 
 refused as it would be fruitless and futile, 
 and both he and the Board of Registration 
 vrerefuricti officio. 
 
 Rex V. Bishop of London, (1743) 1 Wils. 
 11; Rex V. Bishop of Exeter, (1802) 2 East, 
 466, and Rex v. Bateman, (1833) 4 B. & 
 Ad. 553, followed. Rex v. Bonnar, 14 M. 
 R. 467. 
 
 6. Against treasurer of municipality 
 
 — Enforcing writ of execution against school 
 district by levy of taxes — Application to 
 compel treasurer of municipality to make 
 levy directed by sheriff — Who may make — 
 Public Schools Act, R.S.M. 1902, c. 143, 
 s. 263 (/). 
 
 Either the • sheriff, or the execution 
 creditor, may apply for the mandamus 
 authorized by sub-section (f) of section 
 263 of the Public Schools Act, R.S.M. 
 1902, c. 143, to be issued in case the treas- 
 urer of the municipality refuses Or neglects 
 to make the levy against the lands com- 
 prised in a school district when directed 
 by the sheriff under an execution in his 
 hands against the school district. Canada 
 Permanent Mortgage Corp. v. School 
 District of East Selkirk, 16 M. R. 618. 
 
673 
 
 MANITOBA SWAMP LANDS. 
 
 674 
 
 7. Against treasurer of municipality 
 
 — Municipality — Duty of new treasurer of 
 municipality to obey precept served on his 
 predecessor by sheriff — Inability to obey the 
 order not always a reason for refusing man- 
 damus— Public Schooli^Act, R.S.M. 1902 
 c. 143, .-!. 263.] 
 
 Under s. 263 of Public Schools Act, 
 R.S.M. 1902, c. 143, for the purpose of 
 reaUzing on the execution placed in his 
 hands in this action, the sheriff caused the 
 treasurer of the Rural Municipality of 
 St. Clements, W. R. Young, to be served 
 on 23rd August, 1906, with a precept to 
 levy the necessary rate upon the lands 
 situated in the defendant school district. 
 On 29th October following, Mr. Young 
 resigned and Thomas Bunn was appointed 
 treasurer. Mr. Bunn thereafter made out 
 the general tax roll without including the 
 Levy directed by the sheriff. He said he 
 had no knowledge of the proceedings 
 against the municipality until March, 
 1907, but admitted knowing of the judg- 
 ment. He had been a member of the 
 municipal council during 1906. 
 
 Held, by Macdonald, J. on appUcation 
 for a mandamus to compel Mr. Bunn to 
 levy the rate, 
 
 1. That, as a member of the council, he 
 should have had knowledge of the pro- 
 ceedings taken, and the plaintiffs were 
 entitled to the order asked for, as the 
 duties of the treasurer upon whom the 
 precept had been served devolved upon 
 his successor in the office. 
 
 2. That the inabihty of the treasurer to 
 obey the mandamus for lack of some 
 preliminary steps required by law to be 
 attended to by other officers of the munici- 
 pality, over whom he had no control, was 
 not a sufficient answer to the application. 
 
 London and Canadian v. Morris, (1893) 
 9 M.R. 377, foUowed. 
 
 On appeal to the Court of Appeal. 
 
 Held, that the omission of the words 
 "by rate,".in the directions to the sheriff 
 to levy indorsed on the execution, was 
 fatal to the proceeding and that the 
 application for a mandamus should be 
 dismissed. Canada Permanent Mortgage 
 Corporation v. School District of East 
 Selkirk, No. 99, 21 M. R. 750. 
 
 See Agreement tor Sale of Land, 2. 
 
 — Appeal fkom CouNry Court, III, 4. 
 
 — ■ CoNSTITOTIONAL LaW, 1. 
 
 — ■ Dominion Elections Act. 
 
 — Injunction, TV, 3. 
 
 — Judicial District Boards, 1. 
 
 — Local Option By-law, I, 2. 
 
 See Municipality, IV, 1. 
 
 — Parliamentary Elections, 1, 2. 
 
 — Sheriff, 4. 
 
 MANITOBA SWAMP LANDS. 
 
 ' See Crown Lands, 2. 
 
 MANSLAUGHTER. 
 
 iSfee Criminal Law, IX. 
 
 MARITIME LIKN. 
 
 See Winding-up, IV, 4., 
 
 MARRIAGE. 
 
 See -Alimony. 
 
 MARRIED WOMAN. 
 
 1. 'Liability on contract — Separate es- 
 tate. 
 
 In an action brought to recover from 
 the defendant, -a married , woman, the 
 balance of an account for goods sold and 
 deUvered to her. 
 
 Held, that, in the present state of the 
 law, debts contracted by a married woman 
 in carrying on a busiuess or employment, 
 occupation or trade, on her own behalf or 
 separately from her husband, may be sued 
 for as if she were an unmarried woman, 
 that is without regard to separate estate. 
 Wishart v. McManus, 1 M. R. 213. ' 
 
 2. Liability on contract — Separate es- 
 tate — Power of attorney — General and re- 
 strictive clauses. 
 
 Debts contracted by a married woman 
 in carrying on a business or employment, 
 occupation or trade, on her own behalf 
 separately from her husband, may be 
 sued for as if she were an unmarried 
 woman, that is, without regard to separate 
 estate. 
 
 When suing a married woman it is 
 necessary to prove one of two things. It 
 must be proved that she is carrying on a 
 business or employment, occupation or 
 
676 
 
 MARRIED WOMEN'S PROPERTY ACT. 
 
 676 
 
 &ade, separate from her husband, and 
 that -the liability sued upon arose out of, 
 or was contra,cted in connection with, that 
 separate business or employment, occu- 
 pation or trade. Or, it must be shown 
 that the married woman is possessed of 
 separate property, upon which it may be 
 ' presumed she intended the liability in- 
 curred, or contract entered into, and which 
 is the subject matter of the suit, should 
 attach, and out of which it should be paid. 
 
 As plaintiff proved neither of these a 
 non-suit was entered. 
 
 Wishart v. McManus, 1 M. R. 213, 
 followed. 
 
 A power of attorney was given ^ by 
 defendant to her husband on a form 
 supplied by a Bank; it contained power 
 and authority to do for defendant, and in 
 her name, five separate and distinct 
 classes of business, and proceeded, "and 
 further, to manage and transact all 
 manner of business whatsoever with the 
 branch of the Bank of British North 
 America in Winnipeg, their manager or 
 other officer duly authorized." The note 
 sued on was signed by defendant's husband 
 under this power. 
 
 Held, that the clause in the power, 
 •■ "for me and in my name to make, draw, 
 accept, transfer and endorse in favor of all 
 parties whomsoever, all promissory notes, 
 bills of exchange," &c., conferred a general 
 power that _ was not limited or restricted 
 by the subsequent clauses that referred 
 specially to the Bank. 
 
 As to the defence that the defendant 
 did not inake the note, the plaintiff would 
 be entitled to succeed. Veliei y. Ruther- 
 ford, 8 M. R.,l&8. 
 
 3. Next friend — Commission — Mater- 
 ial on application. 
 
 A married woman defendant applied for 
 a commission. Her husband who was 
 also a defendant appeared and supported 
 the motion. 
 
 Held, that a next friend was necessary 
 for the purposes of the application, but 
 the order was made as upon the applica- 
 tion of both husband and wife. 
 
 It is not always necessary upon an 
 application for a commission to shew the 
 nature of the evidence proposed to be 
 given. Ontario Bank v. Smith, 6 M.R. 600. 
 
 4. Next friend — Appointment of — Pro- 
 perty qiudification — Incumbered property — 
 Joint ownership-. 
 
 . Where a proposed next friend for a 
 married woman was shown to be possessed 
 
 of property worth more than double what 
 was necessary, but it consisted of real 
 estate heavily encumbered and personal 
 property, both kinds of property being 
 owned jointly with another person. 
 
 Held, That the appointment as next 
 friend should be refused on the ground of 
 the nature of the property. 
 
 Held, also,' that a next friend should, at 
 least, be shown to be possessed of such 
 property as would formerly, had he been 
 a plaintiff resident abroad, have relieved 
 him of the necessity of givmg security for 
 costs. Carscaden v. Philion, 9 M. R. 135. 
 
 6. Separate estate — N. W. Territories. 
 ' Certain moneys were settled to the 
 separate use of a married woman, subject 
 to her power of appointment. She 
 appointed to her own use, received the 
 moneys and with them purchased certain 
 cattle and farm stock, which, with her 
 assent, were used by her husband, upon a 
 farm. In an interpleader issue between i 
 the married woman and the execution . 
 creditors of the husband. 
 
 Held, 1. That the goods belonged to 
 the husband by virtue of the marriage, 
 notwithstanding the provisions of 43 Vie. 
 (D.), c. 25, ss. 57 to 62. 
 
 2. That the husband was not a trustee 
 for the wife, there being no evidence of 
 his having acted in that capacity. Brittle- 
 bank v. Gray-Jdnes. Gray-J ones. Claimant, • 
 5 M. R. 33. 
 
 Distinguished Conger v. Kennedy, 26 
 S.C.R. 397. 
 
 See Examination op Judgment Debtokj, 
 8, 12. 
 
 — Husband and Wife. 
 
 — Landlord and Tenant, I, 2. 
 
 — ;Pbactice, XVI, 8. 
 
 — Real Property Act, III, 2, 3. 
 
 — Title to Land, 2. 
 
 MARRIED WOMEN'S PROPERTY 
 ACT. 
 
 See Husband and Wipe. 
 
 MARRIED WOMEN'S SEPARATE 
 ESTATE. 
 
 See Fraudulent Judgment, 3. 
 
677 
 
 MARSHALLING OF ASSETS. 
 
 678 
 
 MARSHALLING OF ASSETS. 
 
 See Company, IV, 3. 
 
 — Principal and Surety, 7. 
 
 MASSAGE. 
 
 See Medicine, Practice op 
 
 MASTER AND SERVANT. 
 
 I. Dismissal of Servant. 
 
 II. Negliqence#of Servant. 
 
 III. Wages. 
 
 IV. Wrongful Dismissal. 
 
 I. Dismissal of Servant. 
 
 1. Dismissal for disobedience — Con- 
 struction of orders — Nonsuit — Scintilla of 
 evidence. 
 
 Defendants wrote to their servant, the 
 plaintiff, on 28th November: "You must 
 have your weekly warehouse reports made 
 out on time for the Tuesday morning's 
 mail. No excuse wiU be accepted for 
 non-fulfillment of this rule." During the 
 following month the reports were not sent 
 regularly, and on the 30th December, 
 instead of sending the report due on that 
 day, the plaintiff wrote saying he would 
 send it by next mail. He was thereupon 
 dismissed. The excuse for non-com- 
 pUance was that he was too busy; but he 
 was unable satisfactorily to show in what 
 way' his time had been employed, and it 
 appeared that he was authorized to employ 
 all the assistance he required. 
 
 At the trial the Judge told the jury that 
 it was for them to say whether the order 
 was intended to be peremptory, and the 
 jury found a verdict for the plaintiff for 
 $90. 
 
 Held, that the charge was erroneous; 
 that it was not for the jury to' construe 
 the language of the order and to find 
 ■whether it meant exactly what it Uterally 
 said; that the order was positive and clear; 
 that no sufficient excuse for non-com- 
 pUance had been given; and, although 
 there might have been some evidence to 
 go to the jury, yet that there was none 
 upon which a verdict could be supported, 
 and a nonsuit was entered. McEdwards 
 V. Ogilme Milling Co., 5 M. R. 77. 
 
 2. What amounts to. 
 
 The plaintiff was eng!»ged as a surveyor. 
 The defendant furnished the instruments. 
 In- the morning of one day, while the 
 plaintiff was pursuing his usual course, 
 tha defendant's son O^ho had authority 
 to act for him) asked plaintiff for the key 
 of the instrument box, which plaintiff 
 gave him. The plaintiff remained at the 
 camp during the day unoccupied, and 
 unable to get the instruments, and the 
 defendant's son did not complain of his 
 conduct, or offer him the instruments, 
 but, on the contrary, told the plaintiff to 
 go and see the defendant, who was at 
 another camp four miles away. 
 
 Held, 1. It does not require any form 
 of words to amount to a dismissal of a 
 servant. 
 
 2. That plaintiff was justified in consid- 
 ering himself dismissed. 
 
 3. If ar servant be engaged for a definite 
 period at so much per month, the amount 
 earned may be recovered, although the 
 defendant subsequently be properly dis- 
 missed for misconduct. 
 
 4. A servant Wring for the performance 
 of specified duties impliedly warrants 
 that he is possessed of the requisite skiU, 
 and if he have it not he may be dismissed. 
 Feneron v. 0' Keefe, 2 M.R. 40. 
 
 II. Negligence op Servant. 
 
 Action for damage to goods by 
 mortgagor against the mortgagee — 
 
 Redemise-^Amendmenis — Evidence — State- 
 ments of agent. 
 
 A master is Mable for a wrong committed 
 by his agent when such wrong is com- 
 mitted while the agent is acting within the 
 scope ,of his authority. 
 
 The defendant's son lighted a smudge 
 near a stable to keep away mosquitos from 
 his father's horses. The fire spread- to 
 the stable and consumed some wheat of 
 the plaintiff stored therein. The jury 
 gave a verdict for plaintiff and the court 
 refused to set it aside, (Killam, J., dis- 
 
 -In such a case the defendant held a 
 mortgage upon the wheat executed by the 
 plaintiff. 'The mortgage was not due at 
 the- time of the fire. There was no 
 redemise clause in it. After the fire and 
 the maturity of the mortgage, the defend- 
 ant realized the money secured by the 
 mortgage by sale of other property com- 
 prised in it. The wheat had been stored 
 by the plaintiff in the defendant's stable 
 
679 
 
 MASTER AND SERVANT: 
 
 680 
 
 wHiile, previously, tenant to the defendant, 
 and the defendant had not in any other 
 ■yfay taken possession than by occupation 
 of the land and stable and by refusing to 
 allow the wheat to be removed until he 
 was paid. 
 
 Held, that the existence of the mortgage 
 was no defence to the action for the 
 destruction of the wheat; (Killam, J., 
 
 /- 
 
 Per Killam, J. In the absence of a 
 redemise clause in the mortgage, no action 
 dould be brought for the loss of the goods 
 whether it occurred before or after the 
 expiration of the time for redemption. 
 
 2. If there could be held to be an implied 
 redemise clause (as to which qucere), the 
 plaintiff, could only recover for the losS 
 of enjoyment of the goods between their 
 destruction and , the time fixed by the 
 mortgage for payment. • 
 
 -3. Amendments can be allowed only 
 where they are "necessary for the purpose 
 of determining, in the existing suit, the 
 real question in controvejfsy between the 
 parties," and for the purpose, of meeting 
 ''any, formal objeqtion I * * to the end 
 that in, all things substantial justice may 
 be done." A count disclosing a cause of 
 action entirely distinct from those upon 
 the record, under the circumstances, 
 should not be avowed. 
 
 4. A principal is not bound by the state- 
 ments of his agent, after the happening 
 of the act sued upon, unless the agent has 
 authority to make such statements. 
 Down V. Lee, 4 M. R. 177. 
 
 III. Wages. 
 
 1. Non-payment of yr&ges— Engage- 
 ment terminated. 
 
 In order to support a conviction under 
 The Masters and Servants Act, 34 Vic, 
 c. 14, by a servant against his master, the 
 hiring or engagement must be subsisting 
 at the time of the complaint. Upon a 
 complaint laid by a servant for non-pay- 
 ment of wages, the Justice should order 
 the payment of the wages and not impose 
 a penalty. ' 
 
 Therefore, a conviction imposing a fine 
 upon a master for non-payment of wages, 
 founded on a coniplaint made after the 
 contractT)f hiring had ceased, was quashed. 
 Follansby v. McArthur, 1. W., 4. 
 
 2. Non-payment of wages — Master 
 and Servants Act, 1871. 
 
 A conviction for non-payment of money, 
 due for work done on a contract, cannot 
 
 be sustained under The Master and 
 Servants Act, 34 Vic, c 14. Merritt v. 
 Rossiter, T. W:, 1. 
 
 3. Temporary illness — Practice — 
 Notice of motion. 
 
 Where a servant hired by the week is 
 absent, on account of illness, six or seven 
 weeks, he is not entitled to be paid for 
 the time during which he was absent. 
 
 A notice of motion to the Full Court to 
 set aside the verdict of a single Judge 
 stated that the plaintiff "has this day set. 
 down this xause for re-hearing," &o. 
 
 Held, a sufficient notice. 
 
 Milkr w. -Morton, 8 M. R. 1. 
 
 IV. Wkonpful Dismissal. 
 
 1. Coinpany — Measure of damages — 
 Corporation — Seal — Liability of company 
 upon contract not under its seal — -Presump- 
 tion of yearly hiring. 
 
 1. A company incorporated under The 
 Manitoba Joint Stock Companies Act 
 to carry on a quarrying bijsiness will be 
 liable for wrongful dismissal of a person 
 employed to act as general foreman by the 
 manager of the company although the 
 contract is not under its seal. 
 
 McEdwards v. Ogilvie, (1886) 4 M.R. 1, 
 followed. 
 
 2. By the law of England and Canada, 
 a general hiring, no time being specified, 
 wiU be presumed to be for a year certain, 
 especially if ii is at a yearly salary. 
 
 Buckingham ' v. Surrey cfc Hants Canal 
 Co., (1882) 46 L.T.N.S. 885, and Rettinger 
 V. MacDougall, (1860) 9 U.C.C.P. at p. 
 487, followed. 
 
 3. The onus is on the defendant seeking 
 to show, in reduction of damages for the 
 wrongful dismissal of the plaintiff, that he 
 might have obtained other employBJent 
 by reasonable dihgence, and a discharged 
 workman is not bound to accept a less 
 remunerative position or one of a lower 
 grade even at the same wages, nor need 
 he abandon home and place of residence 
 and go to another province or country to 
 seek employment. 
 
 Costigan v. Mohawk, (1846) 2 Denio, at 
 p. 616; 26 Cyc. -1015, and Macdonell On 
 Master and Servant, 159, followed. 
 
 4. The tribunal assessing the damages 
 in such a case, whether a jury or a Judge 
 trying it without a jury, has to speculate 
 on the chance of the servant getting a new 
 place and arrive at the best conclusion it 
 can, in view of aU the circumstances, as to 
 the probable time that will elapse before 
 
681 
 
 MASTER AND SERVANT. 
 
 682 
 
 another similar employment can be ob- 
 tained, bearing in mind that the law- 
 considers that employment in any ordinary 
 branch of industry can be obtained by a 
 person competent for the place. 
 
 Beckham v. Drake, (1849) 2 H.L.C. 
 606, and Sowden v. Mills, (1861) 30 
 L.J.Q.B. 176, followed. 
 
 At the date of the verdict, the plaintiff 
 •had been about six months idle, and there 
 still remained about two arid a half months 
 of his year. The salary was at the rate 
 of $150 per month, and the Judge, sitting 
 as a jury, applying the above principles, 
 assessed the plaintiff's damages at $1000. 
 Armstrong V..TyndaUQuarry Co., 20 M. R. 
 254. 
 
 2. Company — Pleading — Statement of 
 Claim — Readiness to contmue in service — - 
 Contract of hiring — Company — Absence of 
 seal — Authority of president — Manitoba 
 Joint Stock' Companies Act, sec. 64 — 
 Damages — Failure to seek employment — 
 Justification of dismissal — Mistake in work 
 — Counterclaim. . 
 
 In an action to recover damages for 
 
 the wrongful dismissal of the plaintiff from 
 
 the service of the defendants, it is not 
 
 necessary for the plaintiff to aver that he 
 
 ^ was ready and willing to continue toserve 
 
 ' the defendants. 
 
 The defendants, an incorporated com- 
 pany, hired the plaintiff as foreman. 
 The contract of hiring was in writing, 
 purporting to be signed by the company, 
 by their president, but without the cor- 
 porate seal. The hiring was for more 
 than a year: — 
 
 Held, 1. That the president had author- 
 ity to make the contract, it being in 
 gerieral accordance with his powers, and 
 it was, therefore, binding on the pompany: 
 Manitoba Joint Stock Companies Act, 
 R.S.M. 1902, c. 30, s. 64. 
 
 2. As to damages, that the plaintiff, 
 coHsidering the time of year when he was 
 dismissed, and the improbability of secur- 
 ing work, was justified in not seeking 
 ■ernplpyment immediately after his dis- 
 missal. 
 
 3. That the dismissal was not justified 
 by the fact that in making some moulded 
 caps he had made a mistake- which made 
 the caps useless to his employers; but 
 that a counterclaim for this should be 
 allowed, and the plaintiff's damages re- 
 duced by the amount thereof. Beavcage 
 V. Winnipeg Stone Co., 14 W. L. R. 575. 
 
 3. Dninkeimess. 
 
 The defendants engaged the plaintiff as 
 choir master. Upon the first occasion 
 that the choir met for practice the plaintiff 
 was drunk and unable to -perform his 
 duties, whereupon . he was immediately 
 dismissed. 
 
 Held, in an action for wrongful dis- 
 missal, that the dismissal was justified by 
 the plaintiff's conduct. Martin v. Lane 
 omd the Churchwardens of AllSaints Church, 
 3 M. R. 314. 
 
 4. Drunkenness — Hiring not under 
 seal — Power of directors. 
 
 The defendants, a company chartered 
 under the Joint Stock Companies Act, 
 Con. Stat. Man., c. 9, div. 7, through its 
 officers who usually made such contracts, 
 hired by parol the' plaintiff to manage 
 their elevator and business at M. 
 , Held, The contract need not have been 
 under seal — sec. 269 of the statute — if 
 made by an of&cer in general accordance 
 with his powers "under the by-laws or 
 otherwise." 
 
 Per Tatlok, J. The plaintiff having 
 been hired by those officials who hired aU 
 the persons holding positions similar to 
 that of the plaintiff, there was evidence to 
 go to the jury as to whether the contract 
 had not been made "by an agent, officer 
 or servant of the company in accordance 
 with his powers as such officer, under the 
 by-laws of the company, or otherwise." . 
 
 Per Kill AM, J. From the mere fact of 
 acquiescence in the exercise of such 
 powers (by the official) or from the 
 acquiescence o^ the compare in the 
 plaintiff's appointment, it may be inferred 
 that all formalities necessary to give the/ 
 official authority to make the appointment 
 had been duly observed. 
 
 2. Acquiescence of the directors in the, 
 act of an official in dismissing the plaintiff 
 coupled with the'^ substitution of another 
 employee also acquiesced 'in by the direc- 
 tors, which official had authority to mre 
 the plaintiff, is evidence of authority to 
 dismiss. 
 
 By sec. 47, "The directors shall, from 
 time to time, elect from among themselves 
 a president of the company; and shall 
 also appoint and may remove at pleasure 
 all other officers thereof." 
 
 Held, 1. That this clause did not apply 
 to the plaintiff. 
 
 2. Such power of removal, must be 
 strictly pursued, and only at a regular 
 meeting of the directors. 
 
683 
 
 MASTER'S OFFICE. 
 
 684 
 
 Per KiLLAM, J. A dismissal in such 
 maimer must be pleaded. 
 . The proper question to be left to the 
 jury upon a justification- of the dismissal 
 for drunkenness would be; "Was the 
 , plaintiff so conducting himseK that it 
 would have been injurious to the interest 
 of the defendants to have kept him; did 
 he act in a manner incompatible with the 
 due and faithful discharge of his duty; 
 did he do anything prejudicial or Hkely to , 
 be prejudicial to the interests or reputation 
 -of his master?" McEdwards v. Ogilvie 
 Milling Co., i M. R. 1. 
 
 See 5 M. R. 77, also supra, I, 1. 
 
 6. Insolence as ground for dismissal. 
 
 A single disrespectful retort- by an 
 employee, which has been provoked or 
 called forth by an unbecoming remark of 
 the employer, is not a sufficient ground for 
 dismissal of the employee. 
 
 Edwards v. Levy, (1860) 2 F. & F, 94, 
 followed. 
 
 Defendant, upon being asked by plaintiff 
 for $25 due to him, directed payment to 
 be made, and remarked that it was 
 "another case of paying a man who was 
 not worth it." To this plaintiff repUed 
 that defendant would have to prove him 
 incompetent before a Judge and- jury, or 
 words to that effect. 
 
 QwjBTB, whether such an answer, con- 
 sidering the circumstances, should be 
 regarded as insolent. Williams v. Ham- 
 mond, -16 M. R. 369. 
 
 See Contract, XV, 9. 
 
 — Lord Campbell's Act, 3. 
 
 — Municipality, III, 4. <_ 
 
 — Negligence, II, 1, 3; V, 1; VII, 8. 
 — ^ Seduction, 1. 
 
 of accounts directed to be brought into- 
 the Master's office, yet in a partnership- 
 case, when it was not the duty of either 
 party to prepare them, a disbursement 
 for their preparation was allowed. 
 
 No allowance beyond ordinary witness 
 fees can be made for the attendance, in 
 the Master's office during the passing of 
 accounts, cJf a person specially famiUar 
 with them. Nor to a party to the cause . 
 so attending. Scotia. Griffin, 6 M . R. 116. 
 
 2. Foreign evidence taken by Master 
 
 By consent the Master attended in 
 Montreal for the purpose of taking certain 
 evidence. The evidence "was to be used 
 on the referenfee (saving all just excep- 
 tions) in the same maimer as if said 
 evidence had been taken under a com- 
 mission." 
 
 The depositions were styled in the 
 cause (short form) and then proceeded: 
 "A. B. sworn," with questions and answers 
 following. The answers were not stated 
 to have been made by any one, and there 
 were no signatures either of witnesses or 
 examiner. Upon appeal froin the Mas- 
 ter's report, he certified, at the request of 
 the Judge, that the evidence had been 
 taken and afterwards transcribed Jjy a 
 short hand reporter, but- that it had not 
 been read over to the witnesses. 
 
 Held,'li would be improper to receive 
 any evidence, such as that taken in 
 Montreal, upon less proof of its being 
 correctly taken than would be required 
 if there had been an order appointing the 
 ■ Master a special examiner for the purpose. 
 Levyis v. Georgeson, 6 M, B.. 272. 
 
 See Parties to Action, 6, 7. 
 — Practice, XVII, 3. 
 
 MASTER'S OFFICE. 
 
 See Evidence, 10. 
 
 MASTER'S OFFICE, PRACTICE IN. 
 
 1. Accountant in Master's office — 
 
 Attendance there of parties or experts. 
 
 The Master has power to direct the 
 appointment of an accountant and to tax 
 the payment of his fee. 
 
 Although the general rule- is, that 
 nothing can be taxed for the preparation 
 
 MASTER'S REPORT. 
 
 See Practice, VIII, 1. 
 
 MATERIAL REQUIRED ON APPEAL. 
 
 See Practice, XIV, 2. 
 
 MATTERS ARISING AFTER ACTION 
 COMMENCED. 
 
 See Practice, II, 2. 
 
685 
 
 MEASURE OF DAMAGES. 
 
 ^ 
 
 686 
 
 MEASURE OF DAMAGES. 
 
 See Lord Campbell's Act, 3. 
 
 — Master and Sbevant, IV, 1. 
 
 — Miseeprbsentation, II. 
 
 — Principal and Agent, V, 6. 
 
 — • Real Property Limitation Act, 1. 
 
 — Sale of Goods, III, 2. 
 — • Warranty, 1, 2, 3. 
 
 MECHANICS' LIEN. 
 
 I. Assignment of the Contract 
 
 Money. 
 
 II. Costs. 
 
 III. Date of Completion. 
 
 IV . Interest of Purchaser of Land. 
 
 V. For Materials. 
 
 VI. Priority op. 
 
 VII. Sub-Contractor, Rights of. 
 
 VIII. Time for Taking Proceedings. 
 
 IX. Waiver of Lien. 
 
 X. Miscellaneous Cases. 
 
 I. Assignment of the Contract Money. 
 
 1. Affidavit — Commissioner — Time for 
 commencement of action. 
 
 Held, 1. An assignee of the mechanic is 
 entitled to a lien and may make tlie 
 affidavit necessary for registration. 
 
 2. Prior to 47 Vic, 6. 7, a' commissioner 
 to administer oaths had no power to take 
 an affidavit verifying-a statement of claim 
 to be filed. 
 
 3. The statement of claim read: "The 
 time or period within which the same was 
 to be done or furnished. Between the 
 3rd day of July, 1882, and 1st day of 
 August, 1883." 
 
 HeWj-suffioient. 
 
 4. Proceedings must be commenced 
 within 90 days after the completion of the 
 work, and the making good of trifling 
 defects in the work does not extend the- 
 time. Kelly v. McKemie, 1 M. R. 169. 
 
 2. Assignment of consideration by 
 contractor — Priority. 
 
 Held, 1. A sub-contractor is entitled to 
 assert a mechanic's lien, even although 
 the contract between the owner and orig- 
 inal contractor provides that no workman 
 should be entitled to any lien. 
 
 (a) 2. An assignee of the contract price 
 for the erection of a building is not 
 entitled to the money as against the lien 
 of a sub-contractor, unless the owner has 
 in good faith bound himself to pay the 
 
 assignee. Anly v. Holy Trinity Church, 
 2 M. R. 248. , 
 
 (a) Reversed on appeal. The Court 
 held, under the Act as it stood in 1885, 
 that an assigmnent by the contractor' of 
 the contract money, made before the 
 registration of a lien by a sub-contractor, 
 took priority over such lien. 3 M. R. 
 193. 
 
 II, Costs. 
 
 1. Commission of 25 per cent., on 
 what to be calculated when there are 
 several successful lien claimants. 
 
 Under section 37 of the Mechanics,' and 
 Wage Earners' Lien Act, R. S. M. 1902, 
 c. 100, where there are several successful 
 lien holders besides the . plaintiff, the 
 maximum of costs, exclusive of disburse- 
 ments, that can be allowed to the plaintiff 
 is twenty-five per cent, of the total 
 amount awarded to him and the other 
 lien holders, reduced by the total sum of 
 costs awarded to the other lien holders, so 
 that in no event shall the defendant have 
 to pay in costs, exclusive of disbursements, 
 a sum greater than twenty-five per cent, 
 of all sums awarded against him to lien 
 holders in the action. McDonald Dure 
 Lumber Co. v. Workman, 18 M. R. 419. 
 
 2. Costs of sale and reference to 
 Master — Lirnitation of 25 per cent., to 
 what costs applicable. 
 
 The expression "costs of the action 
 awarded in any action under this Act by 
 the Judge or local Judge trying the action" 
 in section 37 of The Mechanics' and Wage 
 Earners' Lien Act, R.S.M. 1902, c. liO, 
 refers to the costs up to and including the" 
 trial, and means the costs which are 
 allowed by the Judge at the hearing and 
 entered in the judgment, and the pro- 
 visions of that section, limiting the costs 
 to be allowed in' such action exclusive of 
 disbursements to twenty-five per cent, of 
 the amount of the judgment, do not apply 
 to the subsequent costs of sale and pro- 
 ceedings before the Master, which may 
 be dealt with by the Judge as in other 
 cases. Gearing v. Robinson, (1900) 19 
 P.R. 192, foUowed. 
 
 The judgment pronounced empowered 
 the Master to tax and add to the plaintiff's 
 claim the costs of the subsequent proceed- 
 ings, and the Master under it allowed the 
 ordinary costs of a sale conducted in his 
 office, and there was no appeal from the 
 judgment. 
 
687 
 
 fSk 
 
 MECHANICS' LIEN. 
 
 688 
 
 Held, on an appeal from the taxation, 
 that the Court could not i?herfere with 
 the provisions of the judgment. 
 
 Section 31 of the Act provides an 
 alternative mode of proceeding to enforce 
 a lien in which the Judge disposes of 
 everything necessary to realize the claims 
 without a reference t6 the Master, and 
 section 39 provides that, when the least 
 expensive course is not taken by the 
 plaintiff, the costs allowed shall not exceed 
 what would have been incurred if the 
 ,^east expensive course had been taken. 
 
 Held, per Richards, J., that it could 
 not be assumed that proceedings under 
 section 31 would have been any less 
 expensive than those Which had been 
 taken. 
 
 Per Perdue, J., that the-question as to 
 the least expensive course should have 
 been dealt with, if at all, by the Judge 
 who tried the action, and the taxing 
 officer had no,- power, without a special 
 direction in the judgment, to determine 
 which would have been the least expensive 
 course. Humphreys v. Cleave, 15 M. R. 
 23. 
 
 III. Date of Completion. 
 
 1. Construction of statutes — Retro- 
 spective — Time for filing lien— -Completion 
 of work — :Amendment of bill. 
 
 By Con. Stat. Man., c. 53, s. 5, no hen 
 shall exist unless a statement of claim 
 verified, &c., is filed; &c., within, &c., which 
 statement "shall state" — then followed a 
 number of items. This section was 
 repealed by 46 & 47 Vic, c. 32, s. 6, and 
 re-enacted with some slight variations. 
 The words "shall state" however, were 
 omitted although all the items appeared 
 as before. 
 
 Held, that after this second statute the 
 items need not appear in the statement. 
 
 The Act 47 Vic, c. 14, is prospective as 
 well as retrospective. 
 
 The work (the building of a house) was 
 completed on the 18th of August, with 
 the exception of putting up an iron crest- 
 ing which, by the contract, was to be 
 placed on the verandah. The cresting 
 ,,was put upon the top of the house on the 
 29th of October, the plaintiff asserting, as 
 a reason for the dela,y, that he had no 
 money to pay for the cresting, the defeild- 
 ant having refused to pay him. The 
 statement of claim was not filed within 
 thirty days from the 18th ot August, but 
 was within that period after the 29th 
 October. There was no evidence of any 
 
 variation of the contract as to the place 
 where the cresting was to be placed, nor 
 of its acceptance by any act of the de- 
 fendant. ■ 
 
 Held, (KiLLAM, J., dissenting) That the 
 statement was filed within thirty days 
 from the completion of the work. 
 
 The._ bill was amended after the lapse 
 of the time given for filing a bill. 
 
 Held, that the bill was within, the 
 prescribed time, it havfog as originally 
 filed been sufficient for asserting the hen, 
 and the amendment having been occa- 
 sioned only by the defendant's claim for 
 cros^ reliefN in consequence of the work 
 not having bfeen completed within the 
 contract time. Irwin v. Beynon, 4 M. R. 
 10. 
 
 2.'Evidence of. 
 
 Held, 1. When the completion of the 
 work is alleged as of a particular day which 
 is a considerable time after the bulk of the 
 wc5rk was performed, clear and satisfactory 
 evidence must be given to ehable the 
 Court to find the date proved. 
 
 2. Upon the evidence, that the date 
 was not sufficiently proved. 
 
 Upon Re-hearing, , 
 
 Held, 1. That the evidence showed that 
 the main work was not completed before 
 the date alleged, and that, although some 
 levelling of the earth around the building 
 was done upon two succeeding days, the 
 plaintiff was entitled to his lien. 
 
 2. In a suit by a sub-contractor it is not 
 necessary at the hearing to prove that 
 there is anything due by the owner to 
 the contractor. That is a matter for the 
 Master's office. McLennan v. Winnipeg, 
 3 M. R. 474. 
 
 3. Time for filing Mea.— Completion of 
 controxi — Mechanics' and. Wage Earners' 
 Dim Act, R.S.M. 1902, c. 110, s. 20. 
 
 1. When a contractor or sub-contractor 
 claiming a Hen under The Mechanics' and 
 Wage Earners' Lien Act, R.S.M. 1902,, c. 
 110, for machinery supplied by him under 
 a contract, has himself treated the contract 
 as having been completed more than 
 thirty days before the filing of the lien, 
 the time for filing it prescribed by section 
 20 should be held to have expired, not- 
 withstanding an intention on his part to 
 return later to test the machinery as soon 
 as the other work should be sufficiently 
 advanced to enable such test to be made. 
 
 2. A test under such circumstances 
 would not be a performance of part of 
 the work to be performed under the 
 
689 
 
 MECHANICS' LIEN. 
 
 690 
 
 contract. It would only be for the pur- 
 pose of finding defects, and the defendants 
 had not complained of any defects. 
 
 3. Even if defects had been found, the 
 making good of them would not, under 
 the authority of Neill v. Carroll, (1880) 
 28 Gr. 30, and Summers v. Beard, (1894) 
 24 O. R. 641, be a performance of a part 
 of >the work such as would revive the 
 right to file a lien. Day v. Crown Grain 
 Co., 16 M. R. 366. 
 
 Appeal allowed and verdict entered for 
 plaintiff, 39 S.C.R. 258. 
 
 The judgment appealed from (16 M. R. 
 366) was reversed. 
 
 Davibs and Maclbnnan, JJ., dissented 
 on the ground that the evidence was too 
 unsatisfactory to justify an extension of 
 the time. 
 
 The Court refused to quash«the appeal 
 on the ground that the right of appeal 
 had been taken away by section 36 of the 
 statute above referred to. Day v. Crown 
 Grain Company, 39 S.C.R. 258. 
 
 See also [1908] A.C. 504. 
 
 IV. Interest op Purchaser of Land. 
 
 1. Priority of vetidor's lien— State- 
 m,ent of time within which work was done.^ 
 
 The plaintiffs did work for defendant 
 Jeffrey on a house which he was bmlding 
 upon land purchased from defendant 
 Rsher under a verbal agreement for sale. 
 The price of the land was $6000, of which 
 Jeffrey paid $10 on account; but he never 
 made any further payment, and Fisher 
 afterwards took a release of any claim 
 that Jeffrey might have on the land and 
 paid the latter $50 for same. 
 
 Held, that the plaintiffs were entitled 
 to a iien or charge upon the interest or 
 title of Jeffrey in the land as it stood 
 before the release given to Fisher, but 
 that such hen or charge must be subordin- 
 ate to Fisher's claim as unpaid vendor. 
 Graham v. Williams, 8 O. R. 479, followed. 
 West V. Elkins, 14*C.L.T. "50, and Blight 
 
 V. Ray, 23 O.R. 415, distinguished. 
 
 The lien as filed stated that the work 
 was commenced on a certain day and 
 that it was finished on or before a certain 
 other day. 
 
 I Hd^ following Truax v. Dixon, 17 
 O.R. 356, and in view of clause (uu.) of s. 
 8 of the Interpretation Act, R.S.M. c. 
 78, that the statement sufficiently showed 
 the time within which the work was done. 
 Flack V. Jeffrey, 10 M. R. 514. 
 
 2. Rights of workmen as against 
 vendor. 
 
 The purchaser of a lot of land, under an 
 agreement of sale fixing 15th August, 
 1901, for payment of the purchase money, 
 was allowed to enter into possession on 
 15th June, 1901, and to commence 
 building on the land. He continued the 
 expenditure of money upon the premises 
 ^f ter the date fixed for payment with the 
 knowledge and concurrence of the vendors, 
 but eventually abandoned the purchase 
 without having paid anything to the 
 vendors. They then notflied him thaf, 
 as he had not comphed with the terms 
 of the purchase as to time, his interest 
 had ceased. .. 
 
 The plaintiff's claim was for a hen on 
 the interest of the purchaser in the 
 property for work done by him in the 
 erection of the building, but he submitted 
 to the Hen of the vendors for the fuU 
 amount of the purchase money of the 
 land. 
 
 Held, that the vendors could not, under 
 the circimistances, put an end ta the 
 rights of the purchaser by giving such a 
 notice and that, apart from the provisions 
 of s. 11, s-s. 2, of The Mechanics' and 
 Wage Eartiers'. Lien Act, 61 Vic, c. 29, 
 the plaintiff was entitled to the hen asked 
 iot with the usual inquiries and directions. 
 
 Hoffstrom v. Stanley, 14 M. R. 227. 
 
 V. For Materials. 
 
 1. Material used in a building, but 
 not sold for that purpose. 
 
 A material man has no lien unless the 
 goods were supplied for the purpose of 
 being used in the particular building upon 
 which he claims to have a hen. Sprague v. 
 Besant, 3 M.R. 519. 
 
 2. Rights of material men as agains^ 
 ■ reserve — Building contract — Occupation of 
 
 building by owner — Acceptance of work — 
 Mechanics' and Wage Earners' Lien Act, 
 R.S.M. 1902, c. 110, ss. 9, 12. 
 
 Persons supplying materials to the con- 
 tractor for the building of a house are not 
 entitled to the benefit of the provisions cf 
 section 12 of The Mechanics' and Wage 
 Earners'-Lien Act, R.S.M. 1902, c. 110, by 
 which, in the event of the contract not 
 being completed, wage earners may enforce 
 liens against the percentage of the contract 
 price which the owner is required to hold 
 back under section 9 of the Act; but, if the 
 contract price is payable by instalments, 
 the general lien-holders may enforce their 
 
691 
 
 MECHANICS' LIEN. 
 
 692 
 
 liens pro rata to the extent of any earned 
 instahnents in so far as the same remain 
 unpaid in the hands of the owner, although 
 the work is not completed. 
 
 irydqn v. Laiies, (1891) 9 M.R. 463, fol- 
 lowed. 
 
 2. The occupation of the uncompleted 
 house by the owner and the mortgaging of 
 it, for a sum to be paid to the contractor 
 in accordance with one of the terms of the- 
 contract, do not estop the owner from " 
 setting up against the Uenholder that the , 
 house has not been completed and that, 
 consequently, no more money is due under 
 the contract. 
 
 Pattinsonv.Luckley, (iS7 5) li-R. 10 Ex. 
 S30,,a.nd Sumpterv. Hedges, [1898] 1 Q.B. 
 673, foUbwed. "' 
 
 Black V. Wiebe, 15 M.R. 260. 
 
 VI. Peiohity op. 
 
 1. As against mortgage. 
 
 Held, A mechanic's lien does not "exist 
 unless and until" his statement is filed in 
 the registry office; and the mere fact that 
 the work was done before the execution, 
 by the owner of the lanjd, of a mortgage 
 upon it will not give the mechanic priority 
 - as against the mortgagee. Kievell v. 
 ■Murray, 2 M.R. 209. 
 
 But see, now, s-s. (a) of s. 4 of R.S.M- 
 1902. c. 110, and next case. 
 
 2. Between lienholders and mort- 
 gagees — Notice of lien — Subrogation to 
 -rights of unpaid vendor in favor of mort- 
 gagee paying him off — Practice — Defects 
 in the statement of lien registered — Costs — ■ 
 Counsel fees as disburserftents. 
 
 At the trial of an action under The 
 Mechanics' and Wage-Earners' .Lien Act, 
 1898, 61 Vic, c. 29, which was not defended 
 by the debtor, it became neces^ry to 
 determine the respective rights and- 'pri- 
 orities as between the plaintiff whose claim 
 was for work and labor, another Uenholder 
 whose claim was for lumber and other ~ 
 materials supplied at different dates, and 
 several mortgagees. These parties had 
 been served pursuant to section 32 and 
 ' section 27 (2) of the Act with notice of the 
 trialj but had not been otherwise made 
 parties to the action. 
 
 The following points arising under 
 various provisions of the Act were de- 
 cided: — ■ 
 
 1. Although an account "for materials 
 supplied may consist of items for different 
 lots supplied at different dates on separate 
 
 and distinct orders, thelien filed within 
 the required time after, the delivery of the 
 last lot will be good to cover aUtJie ordej-s 
 if given in pursuance of a general arrange- 
 ment previously entered into. 
 
 Mcmis V. Tharle, (1893) 24 O.R. 159, 
 followed. 
 
 Chadwich v. Hunter, (1884) 1 M.R. 39, 
 distinguished, 
 
 2. The claims of subsequent incum- 
 brancers and other lienholders may be dis- 
 posed of at the trial without their being 
 made parties to the action, and although 
 the notice of trial has been served after the 
 time limited for bringing the action: Cole 
 V. Hall, (1889) 13 P.R. 100. 
 
 3. The lienholder who registers his lien 
 in time has priority from the date of the 
 commencement of the work or from the 
 placing of the materials over every con- 
 veyance, mortgage or charge made there- 
 after, although registered first, and such 
 priority is not affected by section 11 of the 
 Act, which applies only to payments or 
 advances made subsequently to the taking 
 effect of the hen under conveyances or 
 mortgages otherwise having priority. 
 
 4. The effect of section 17 of the Act is 
 that only substantial comphance with the 
 directions as to the dbntents of the claim 
 and the registration of it is required, and 
 no failure in such compliance, in however 
 substantial a degree, is to invaUdate the 
 hen unless some other party is prejudiced 
 thereby, and then only to the extent to 
 which ije is thereby prejudiced. 
 
 5. The lien for materials suppUed as 
 against a mortgage has priority over the 
 mortgage only to the extent of the material 
 placed on the ground before the moitgagef 
 money was advanced. 
 
 6. Under section 11, if a mortgagee has 
 notice in writing of the fact that there is 
 an indebtedness for which a lien may be 
 blaimed, that is prima facie notice of the 
 lien itself, and he cannot claim priority 
 for moneys advanced after such notice. 
 
 7. The first mortgagee having applied, 
 his last advance in pa^jgnent of the pur- 
 chase money of the lots to the unpaid 
 vendor who then ,bonveyed the land in fee 
 to the defendant owner, and halving thus 
 
 - secured the title to the property, claimed 
 to be entitled to be subrogated to the 
 position of the original vendor in respect 
 of such purchase money; but ^ naving had 
 actual notice of one of the hens and cout 
 stnictive notice of the other before making 
 this payment, following Parry v. Wright', 
 (1823) i Sim, & St. 369, 5 Russ. 142, it^ 
 
603 
 
 MECHANICS' LIEN. 
 
 694 
 
 was held that he could not have priority 
 over either Uenholder for such advance. 
 
 Brown v. McLean, (1889) 18 O.R. 533, 
 and Abell v. Morrison (1890) 19 O.R. 672, 
 distinguished. , 
 
 Counsel fees actually paid are to be in- 
 cluded among the actual" disbursements" 
 referred to in section 37 of the Act whether 
 the counsel is a solicitor or a partner of a 
 solicitor in the cause or another barrister: 
 Magum v. Magurn, (1883) 10 P.R. 570. 
 Robock V. Peters, 13 M.R. 124. 
 
 VII. Sub-Contractor, Rights of. 
 
 1. Contractor's failure to complete 
 
 — Public buildings — Trust property. 
 
 Under a building contract the pro- 
 prietor (the City of Winnipeg) was to pay 
 85 per cent, of the value of the work and 
 materials as the structure progressed, 
 and- the balance of 15 per cent, upon the 
 whole of the work being completed to the' 
 satisfaction of the City and acceptance 
 of the work by the corporation. The 
 contractor failed to complete the work, 
 having at that time received payment to 
 the extent of 85 per cent. 
 
 Held, that a sub-contractor had no lien 
 in respect of the reserved 15 per cent. 
 
 [But see, now, R.S.M. 1902, c. 110, s.q. 
 first enacted in 1898 by 61 Vic, c. 29.— 
 Ed.] 
 
 During the progress of the work another 
 contract was made between the pro- 
 prietor and the contractor for, certain 
 extra work. In this contract there was 
 an agreement for payment of 85 per cent, 
 during the progress of the work; nothing 
 was said with reference to the 15 per cent., 
 but there was a general provision "that 
 in all other respects said original contract 
 shaE not be varied, altered or changed, 
 but be and remain in full force and effect." 
 
 Held, that the 15 per cent, was payable 
 upon completion of the extra work and, 
 this halving been completed, was available 
 to the sub-contractor. 
 
 By the terms of the contract any mate- 
 rials placed upon the ground were to be 
 considered in the possession of. the City, 
 and were to be included in the progress 
 estimates. "^ 
 
 Held, that a material-man was not 
 bound to show that his materials were 
 used in the building — dehvery upon the 
 ground for the purpose of being used was 
 sufficient. 
 
 Held, that the City haU in Winnipeg 
 might be sold under execution against the 
 
 City, and was therefore subject to sale 
 in pursuance of the Mechanics' Lien Act. 
 The land upon which the hall was 
 erected was granted to the City by a deed 
 which provided that it was to be Used 
 only for the purpose of the erection 
 thereon of a market building and for 
 other pubHc purposes, and that, ii the 
 City should use the lands for any other 
 purposes and uses than those connected 
 with the pubUc purposes and uses of the 
 corporation, the lands should revert to the 
 grantors their heirs and assigns. ■ 
 
 Held, that, there being some estate in 
 
 the lands vested in the pity, the plaintiflf 
 
 was entitled to a lien to 'the extent of such 
 
 estate and to a sale of it. McArthur v. 
 
 'Dewar, 3 M. R. 72. 
 
 2. Lien of sub-contractor when con- 
 tractor fails to complete work — Per- 
 centages to be kept back by owner — Time for 
 filing lien for successive jobs on distinct 
 orders. 
 
 Where nothing is payable under a 
 building contract until the whole of the 
 work is completed, but the owner volun- 
 tarily makes pajTnents to the contractor 
 as the work progresses, to the extent of 
 the value of the work done, a sub-con- 
 tractor who has not been paid is entitled, 
 under section 9 of The Mechanics' and 
 Wage Earners' Lien Act, R.S.M. 1902, c. 
 110, as against, the owner, to a lien for 
 the amount due him, to the extent of 
 twenty per cent, of such payments. 
 
 Russell V. French, (1898) 28 O.R.'215, 
 followed. 
 
 Plaintiff's claim consisted of charges for 
 different jobs, all in his line of business, 
 but ordered at different times, and, as to 
 the first job, if considered separately, his 
 lien was not filed within the time required 
 hy the statute. 
 
 Held, that, under such circumstances, a ' 
 mechanic should not be required, in order 
 to secure payment, to file a Uen after 
 completing each piece of work, and that 
 filing his Uen after he has completed all 
 of his' work is sufficient. Carroll v. 
 McVicar, 15 M. R. 379. 
 
 VIII. Time for Taking Pkocebdinqs. 
 
 1. Amendment of bill after time for 
 filing eIapsed-^8 Vic., c. 33, as to filing 
 contracts. 
 
 BiU alleged a contract with defendant 
 C. for the performance of certain work in 
 the erection of a building upon land of C. 
 By amendment made after the time for 
 
695 
 
 MECHANICS' LIEN. 
 
 696 
 
 filing the biU had elapsad, the plaintiffs 
 ajleged that their contract was with the 
 defendants K. & McD., who had con- 
 tracted with C. for the erection of the 
 whple building,- thus changing their 
 "position froiri contractors to sub-contrac- 
 tors. No new certificate of lis pendens 
 was filed. 
 
 Held, that the plaintiff could not rely 
 upon the original bill and certificate of 
 Us pendens. 
 
 It is no defence to an action for work 
 done under a verbal contract that the 
 contract or a statement of it was not 
 filed in accordance with the statute 48 
 Vic, c. 33, s. 13. ' Davidson v. Campbell, 
 SM. R. 250. 
 
 2. Time for registration. 
 
 Materials were supplied from time to 
 time as the building progressed, not under 
 any contract, but as they were required 
 and ordered. 
 
 / Held, that each sale was a separate 
 transaction, and the subject of a separate 
 registration. Chadwick v. Hunter, 1 M. 
 R. 39. 
 
 Varied, 1 M. R. 363. See Post X., 3. 
 
 . 'Distinguished, Robock v. Peters, 13 M. 
 R. 125. 
 
 IX. WaIVEB of LiIEN. 
 
 1. Agreement that the price shall 
 not be paid until time for lien expired 
 
 — Refusal to give security for price as 
 agreed upon. ' 
 
 , When under a building contract the 
 time for payment of the price of the work 
 is fixed at a date later than that at which 
 a biU could be filed to enforce a Mechanics' 
 lien, there is an implied agreement that 
 no lien shall exist. ' , 
 
 But, if, by the contract, a promissory 
 note or other security for the\ price of the 
 work is to be given within the time for 
 enforcing a Mechanics' Lien, the implied 
 a,greement to waive the lien is conditional 
 upon the giving of the note or other 
 security. Ritchie v. Grundy, 7 M. R. 532. 
 
 2. Taking promissory note for 
 amount of claim. 
 
 Notwithstanding sub-section (c) of 
 section 24 of The Mechanics' and Wage 
 Earners' Lien Act, R.S.M. 1902, c. 110, 
 if a person, claiming a lien under the Act, 
 takes a promissory note for the amount 
 
 and discounts it, he thereby forfeits his 
 right to a lien. John Arbuthnot Co. v. 
 Winnipeg Manufacturing Co., 16 M. R. 
 401. 
 
 3. Taking and discounting promis- 
 sory note for claim. 
 
 The provisiori in sub-section (c) of 
 section 24 of "The Mechanics' and Wage 
 Earners' Lien Act, R.S.M. 1902, c. 110, 
 , that the acceptance, by a person claiming 
 a, lien under the\Act, of any promissory 
 note for the claim shall not merge, waive, 
 pay, satisfy, prejudice or destroy any hen 
 created by the Act, unless the lien holder 
 agrees in writing that it shall have that 
 effect, does not protect the hen holder if 
 he discounts or transfers such note, and in 
 that event his lien is lost. 
 
 Edmonds v. Tiernan, (1892) 21 S.C.R. 
 406, followed. NaMonaA Supply Co. v. 
 HorroUn, 16- M. R. 472. 
 
 X. MlSCBLIiANEOUS CaSES. 
 
 1. Certificate of lis pendens, form of 
 
 — Commencement of action to enfofrce lien. 
 
 Under section 22 of The Mechanics' 
 and Wage Earners' Lien Act, R.S.M. 
 1902, c. 110, in order to preserve a me- 
 chanic's lien, it is necessary, besides 
 commencing an action,, to register a 
 certificate of lis pendens in respect thereof, 
 according to form No. 6 in the' schedule, 
 in the proper registry or land titles office 
 within the time prescribed,- and a certifi- 
 cate ihat some title or interest in the land 
 is called in question, without any reference 
 to a mechanic's lien, is not a sufficient 
 compliance with the statute. 
 
 Although ■ the lien may be registered 
 before commencing or during the progress 
 of the work, yet an action thereon cannot 
 be commenced before completion. Curtis 
 V. Richardson, 18 M. R. 519. 
 
 2. Different properties separately 
 o-wned — One lien against owners of different 
 properties^-The Mechanics' and Wage 
 Earners' I/ien Act, 1898. 
 
 A mechanic's lien registered against 
 two lots of land owned by different persons 
 in respect of work done upon two 
 houseSj one ^on each of the lots, on the 
 order of one of the o-svners and for an 
 amount claimed to be due for the work on 
 both houses, without apportioning the 
 amount as between the two, cannot be 
 enforced under The Mechanics' and Wage 
 Earners' Lien Act, 1898, nor can effect be 
 
697 
 
 MEDICINE— PRACTICE OF. 
 
 698 
 
 given to the lien as against one of the lots 
 only for the proper amount. 
 
 Currier v. Fnedrich, (1875) 22 Gr. 243; 
 QUfield V. Barbour, (1888) 12 P. R. 554, 
 and Rathbun v. Hayford, (1862) 87 Mass. 
 406, followed. Fairclough v. Smith, 13 M. 
 R. 509. 
 
 3. Land out of jurisdiction — Persoruxl 
 remedy only. 
 
 Held, 1. Varying the decree made oh 
 the hearing (1 M. R. 39), that plaintiffs 
 were entitled to a personal order against 
 defendants, Hunter and Short. 
 
 2. Where lands are out of the jurisdic- 
 tion, the Court cannot affect them other- 
 wise than by proceedings in personatn, and 
 cannot therefore enforce a mechanics' lien 
 by sale of land out of the jurisdiction. 
 Chadwick v. Hunter, 1 M. R. 363. 
 
 4. Reserve of percentage of contract 
 price — Payments to material men and 
 wage-earners out of the reserve — lAability of 
 owner for full amount of reserve. 
 
 The owner of a building in course of 
 erection, when the contract price exceeds 
 $15,000, being required by section 9 of 
 The Mechanics' and Wage Earners' Lien 
 Act, R.S.M. 1902, c. 110, to keep back 
 fifteen per cent, of the amounts from 
 time to time earned by the contractor 
 and retain such percentages until thirty 
 days after the completion or abandonment 
 of the contract for the benefit of sub- 
 contractors who may become entitled to 
 file liens under the Act, must reserve such 
 percentages at his peril, and cannot 
 afterwards, in an action by a person who 
 has supplied materials, deduct therefrom 
 any payments he may have made under 
 section 10 of the Act for wages or mater- 
 ials in order to prevent the filing of hens 
 therefor, as section 10 at the end expressly 
 says in effect that payments made imder 
 it are not to "affect the percentage to be 
 retained by the owner as provided by" 
 section 9. 
 
 Carroll v. McVicar, (1905) 15 M.R. 
 -379, foUowed. 
 
 McArthur v. Martinson, 16 M. R. 387- 
 
 5. Wages, lien for — Meaning of 
 "claim" in section 4 — Personal remedy of 
 workman against owner — Builders' and 
 Workmen's Act, B.S.M. 1902, c. 14. 
 
 1. A workman under a contractor 
 engaged in the repair of a building for the 
 
 owner is entitled, under sections 9 and 12 
 of The Mechanics' and Wage Earners' 
 Lien Act, R.S.M. 1902, c. 110, to a hen 
 on the building for his unpaid wages to 
 the extent of the twenty per cent, of the 
 payments made that the owner should 
 have held back from the contractor but 
 did not. 
 
 Carroll v. McVicar, (1905) 15 M. R. 379> 
 followed. 
 
 2. A workman who has brought his 
 action under the abo'^e Act, can not in 
 that action avail himself of the personal 
 remedy given by The Builders' and Work- 
 men's Act, R.S.M. 1902, c. 14, against 
 the proprietor for the full amount of his 
 claim in cases where a pay list is -not 
 kept and the proprietor neglects to see 
 that the workmen are paid. 
 
 3. The word "claim" in the second 
 paragraph of section 4 of the first named 
 Act, providing that no lien shall exist 
 under the Act for any claim under twenty 
 doUars, means the amount actually due 
 to the claimant imder" his contraoli j)r 
 employment, and not the amount to 
 which his right or remedy against the land 
 may on inquiry be found to be limited. 
 Phelan v. Franklin, 15 M. R. 520. 
 
 See Amendment, 6. 
 
 — Building Contract, 5. 
 
 — Parties to Action, 10. 
 — • Winding-up, III, 2. 
 
 MEDICINE, PRACTICE OF. 
 
 Medical Act, R.S.M. 1902, c. Ill, ss. 
 62 and 63 — Electro-therapeutics a branch 
 of medicine — Massage not. 
 
 According to standard dictionaries 
 electro-therapeutics, consisting in the 
 treatment of diseases by means of elec- 
 tricity, is a branch of medicine, and it is 
 unlawful, under section 62 of The Medical 
 Act, R.S.M. 1902, c. Ill, for a peJson not 
 refgistered under the Act to practise as an 
 electric-therapeutist for hire, gain or hope 
 of reward ; and under section 63 such 
 person cannot recover any fees or charges 
 for such treatment. 
 
 Massage, although a branch of thera- 
 peutics, is merely a skilled manipulation 
 by external pressure of the muscles and 
 tissues and, not depending for its efficacy 
 upon the introduction or application of 
 
699 
 
 MEMORANDUM IITWRITING. 
 
 700 
 
 any other element, cannot be considered 
 to be a branch of medicme, 
 
 Begina v. Valleau, (1900) 3 Can. Cr. 
 ~Cas, 435, followed. Bergman v. Bend, 14 
 M. R. S03r' 
 
 MEMORANDUM IN WRITING. 
 
 iSee Statute of Fbaitds: 
 
 — Vendor and Purchasbk, VII, 9. 
 
 MENACES. 
 
 See Criminal Law, V, 1, 2. 
 
 MERGER.. 
 
 , Subsequent incumbrance — Mistake 
 7— Release of equity of redemption. 
 
 When the owner of an estate in fee pays 
 off a charge, or the owner of a charge 
 acquires the equity of redemption, the 
 result is' that the charge merges and lets 
 in any subsequent inpumbraoace, unless an 
 intention to keep the charge alive is 
 expressed in some way, and the onus of 
 proving such intention rests on the party 
 contending that there has been no merger. 
 
 The plaintiffs held a mortgage on certain 
 lands for a large amount, and arranged 
 with the mortgagor to take a quit claim 
 deed from him, and to release him from 
 all liability on the mortgage, acting in the 
 belief that they would thus acquire the 
 whole estate free of incumbrances. Their 
 solicitor, however, having overlooked a 
 registered judgment in favor- of the de- 
 fendanj), the latter claimed that there was 
 a merger, and that his judgment was now 
 a first-lien on the lands. 
 , The plaintiffs filed a bill to enforce the 
 execution of a release of this judgment. 
 
 Held, that a merger had taken place, 
 and the relief asked for could not be 
 granted, but that the plaintiffs were 
 entitled, on the ground of mistake, to a 
 decree declaring that the amount due 
 under their mortgage' should be a charge ' 
 on the land in priority to the defendant's 
 registered judgment. Dean and Chapter 
 of St. John's Cathedral v. MacArthur, 9 M. 
 R. 391. 
 
 See MoRTGAOOE and Mohtgagbe, VI, 8. 
 
 — Principal and Surety, 5. > 
 
 — Vendor and Purchaser, III, 2. 
 
 MILITARY LAW. 
 
 Enlistment in Active Militia— /Ser- 
 
 vice continued after expiration of term of 
 enlistment — MiUiia Act, B.S.C. 1906, c. 
 41, ss. 23, 71 — Habeas Corpus. 
 
 The applicant Was a member of a 
 permanent co:^ps»in the Active Militia of 
 Canada. His term of enlistment expired 
 on 18th June, I9O8, but he continued in 
 the service. Being arrested and im- 
 prisoned by order of th6 colonel command- 
 ing on a charge of conduct to the prejudice 
 of good order and military diseipUne, and 
 held to awjait trial by court-martial, he 
 appUed for his release on habeas ctrrpus.' 
 He had not applied for his discharge or 
 been legally discharged or dismissed from 
 the force. 
 
 - Held, that, under sections 23 and 71 of 
 the Militia Act, R.S.C. 1906, c. 41, the 
 applicant was stiU subject to military law, 
 and should be /handed back to the custody 
 of the miUtary authorities. Re Harris, 
 19M. R. 117. '. 
 
 MINISTERS OF THE CROWN. 
 
 See Crown Lands, 1. 
 
 MISFEASANCE. 
 
 See Municipality, IV, 2. 
 
 MISJOINDER OF PARTIES. 
 
 jSee Amendment, 5. 
 — ■ Contract, XI, 2. 
 
 — Railways, VII, 2. 
 
 — Warranty, 1. 
 
 MISNOMER. 
 
 ■See Amendment, 6. - 
 
 — Capias, 4, 6. 
 
 — Chattel Mortgage, V, 5. 
 
 — Company, IV, 11. 
 
 — Fraudulent Preference, VI, 5. 
 
 — Real Property Act, I, 6. 
 
 — Sale of Land for Taxes, IV, 3. 
 
 — Statute of Frauds, 6. 
 
 — Taxation., 1. 
 
701 
 
 MISREPRESENTATION. 
 
 702 
 
 MISREPRESENTATION. 
 
 I. Action of Deceit. 
 
 II. Damages. 
 
 III. Election to Affirm Contract. 
 
 IV. Rescission op Contract for. 
 V. Other Cases. 
 
 I. Action of Deceit. 
 
 1. Damages. 
 
 The only damages recoverable in an 
 action of deceit, based upon false repre- 
 sentations inducing the plaintiff to pur- 
 chase property, are the difference between 
 the price paid for the thing purchased and 
 its real value, and when the plaintiff has 
 sold the property at a profit he can recover 
 no damages, although he has failed to 
 realize the profit he could reasonably have 
 expected if the representations had been 
 true. 
 
 Peek V. Derry, (1889) 37 Ch. D. 541, 14 
 A.C. 337; McConnelv. Wright, [1903] 1 Ch. 
 546, and Steele v. Pritchard. 17 M.R. 226, 
 followed. Rosen v. Lindsay, 17 M.R. 251. 
 
 2. Damages — Amendment. 
 
 On the 25th of June, 1908, the defend- 
 ants, acting as agents of the Ontario and 
 Saskatchewan Land Corporation, gave the 
 plaintiff Steete an option in writiug to pur- 
 chase all the lands of the Company in 
 certain named townships, being about 
 48,000 acres, at $6.60 per acre and took 
 Steele's cheque for a deposit of $5,000 on 
 account . There were not funds in the bank 
 to pay the cheque and the defendants 
 urged Steele to "provide funds. Steele 
 ' then, at a meeting of the parties heln on , 
 the 28th of June, introduced his co-plain- 
 tiffs, Powell and Buell, to the defendants- 
 Powell and BueU.were then induced to 
 join Steele in the purchase and acquired 
 a two-thirds interest in it and funds were 
 provided to make the $5,000 payment. 
 The plaintiffs alleged that the defendants 
 induced Powell and Buell to go into the 
 purchase by representing at that meeting 
 that the purchase included all the land 
 that the Company ever owned in the 
 townships inentioned and that such repre- 
 sentation was false as some of the best of 
 its lands had been previously sold. After 
 discovering the mistake the plaintiffs 
 completed the purchase and later disposed 
 of the bulk of the lands at a substantial 
 profit. 
 
 The statement of claim was based on the 
 contract of 25th June and on the allega- 
 
 tion that the defendants, by fraudulent 
 misrepresentations induced the three 
 plaintiffs to enter into it, and damages 
 were claimed, as in an action of deceit, for 
 loss of the profits that would have been 
 made if the plaintiffs had received the 
 lands that the Company had previously 
 sold. 
 
 The trial Judge found that the plaintiff 
 Steele had not been induced to enter into 
 the purchase by any misrepresentations 
 of the defendants, but found a verdict for 
 the other plaintiffs against both defendants. 
 
 Held, on appeal, that, as the plaintiffs 
 Powell and Buell had not made any inde- 
 pendent contract with the defendants for 
 the purchase of the laijds in question, but 
 had only acquired an interest with Steele 
 in the option which he had previously 
 secured, their only remedy for the alleged 
 false representation would be by an action 
 of deceit, for that they had been thereby 
 induced to enter into the agreement with 
 Steele for the acquisition of an interest 
 with him in the option, to which action 
 Steele would not be a proper jiarty, and 
 that, as the issues and evidence in such an 
 action might be widely different from 
 those in the present action, an amendment 
 of the pleadings setting up such new case, 
 first asked for at the hearing of the appeal, 
 should not be allowed, and that the action 
 should be dismissed, without prejudice, 
 however, to the right of Powell and BueU, 
 if so advised, to bring a new action on the 
 grounds above indicated. 
 
 Held, also, per Phippen, J. A. After 
 discovering the alleged fraud the plaintiffs 
 . might, if the facts they alleged were true, 
 have sued the Company for the return of 
 their $5,000 deposit or brought an action 
 of deceit against the defendants, laying 
 their damages at the amount paid out. 
 Instead of that, however, they exercised 
 their privilege of making a new contract 
 directing the Company to retain, as part 
 of the purchase money thereunder, the 
 $5,000 previously paid for the option. 
 The plaintiffs, having thus received back 
 the only money from which they were 
 parted by the alleged misrepresentation, 
 cannot further recover by way of damages. 
 It being admitted, further, that the plain- 
 tiffs suffered no loss by reason of their 
 purchase, but made a substantial profit 
 by the resale of the lands, they could re- 
 cover no damages for having been induced 
 to enter into the contract. 
 
 McCmnell v. Wnght, [1903] 1 Ch. at p. 
 554; Peek v. Derry, (1889) 37 Ch. D., at p. 
 541; Smith v. Bolles, (1«89) 132 U.S.R. 
 
703 
 
 MISREPRESENTATION. 
 
 704 
 
 125, and Sigafus v. Porter, (1900) 17& 
 U.S.R. 116, followed: Steele v. Pritchard, 
 17 M.R. 226. 
 
 II. Damages. 
 
 1. Costs of uselessly defending suit. 
 
 The plaintiffs, according to the findings 
 of fact, had been induced by the misrepre- 
 sentations and fraud of the defendants 
 to purchase a horse for $1200 and to 
 give the defendants their promissory 
 notes therefor, but such notes had been 
 indorsed for value to the Bank of 
 Hamilton "before maturity, so that , the - 
 plaintiffs had no defence to the Bank's 
 claim on the notes, and they had ample 
 means of informing themselves on that 
 point. They, ^lowever, defended the 
 Bank's suit, but unsuccessfully. 
 
 Held, that, in this action, which was 
 brought to recover damages for the de- 
 - fendant's misrepresentations, the plain- 
 tiffs could not add their costs of needlessly 
 defending the Bank's suit to their other 
 damages, but must be limited to the 
 amount due on the promissory notes 
 together with the costs of the present 
 action only. 
 
 Godwin v. Francis, (1870) L.R. 5 C.P. 
 at ppj 305 & 307, and RoaA:h v. Thompson, 
 (1830) 4 C. & P. 194, followed. Morwick 
 V. Walton, i8 M.R. 245. 
 
 2. Measure of dam^iges — What conr-. 
 stitutes a "clean" farm — Future damages, 
 recovery of. . 
 
 This was an action in which the plaintiffs 
 sought to recover damages for fraudulent 
 representations whereby they were in- 
 duced to lease the farm of the defendant 
 at a very high rental. The false repre- 
 sentation proved was that the farm was a 
 clean farm, whereas in fact it was full of 
 weeds. 
 
 Held, that the proper measure of 
 damages in such a case is the one adopted 
 in Peek v. Derry, 37 Ch. D. 541, namely, 
 to ascertain\the difference between the 
 price paid and the actual value to the 
 plaint ffis at the time of the contract. The 
 market value is not to be considered, and 
 the true question is — ^Was the farm when 
 taken worth the rental which the plaintiffs 
 agreed to- pay, and if by reason of the 
 existfence of weeds it was worth less, how 
 much less was it worth? 
 
 Damages were allowed to the plaintiffs 
 on this ijrinciple at one dollar per acre for 
 the cultivated land for each of the two 
 years for which they ha4 taken the farm. 
 
 Held, also, that, although the lease had 
 -still a year to run after the commence- 
 ment of the action, the plaintiffs could 
 nevertheless recover all their damages in 
 this action, there being only one contract, 
 and no right to bring a second action under 
 it. 
 
 _Held, also, that the expression "clean 
 farm" does not mean a farm absolutely 
 free from weeds, but. only one on which- 
 there were not weeds in such quantities as 
 to be materially injurious to the crops. 
 
 The defendant counterclaimed $160 
 for rent due under the lease. 
 
 Held, ' that he was entitled to this 
 amoimt, and that the defence of fraud 
 could not avail against it, for the plaintiffs . 
 had the use of the land and the contract 
 was still in force, the bringing of the action 
 for damages being itself an affirmance of it. 
 Johnstone v. HaU, 10 M.R. 161. 
 
 III. Election to Affirm Contract. 
 
 1. Laches — Rescission of' contract — ~Bai- 
 ijication by delay after knowledge of the 
 fraud — lAabilUy of principal for misrepre- 
 sentations of agent — Damages. 
 
 1. A plaintiff asking for the rescission 
 of a contract for the exchange of pro- 
 perties, which the Court finds he was in- 
 duced to enter into by the fraudulent 
 misrepresentations of the defendant, will 
 not be held to have elected to ratify the 
 contract by subsequent dealings with the 
 property transferred to him or by delay, 
 if he brings his action within a reasonable 
 time after he gets fuU knowledge of the 
 falsehood of the representations. 
 
 2. A principal will billable for misrepre- . 
 sentations made by his agents in the course 
 of -his agency to the full extent of the 
 damages suffered by the party defrauded, 
 and his liability will not be limited to the 
 extent to which he actually profited by the ' 
 transaction impeached. 
 
 Barwick v. English Joint Stock Bank, 
 L.R. 2 Ex. 259, followed. Gardiner v. 
 Bickley, 2 W.L.R. 146. 
 
 2. By payment of money — Rescission 
 — Waiver — Failure of corisideration-r- 
 Amendment — Parties- — Right of action. 
 
 One W. F. DoU having made an agree- 
 ment for the sale of aU of the shares of a 
 jewellery company to M. and S. for 
 $15,000, the par value being $25,000, the 
 defendant was induced to join with M. and 
 S. in the purchase, the price being repre- 
 se;rted to him as $25,000, and he gave his 
 notes for $6,000 directly to DoU and ac- 
 
705 
 
 MISREPRESENTATION. 
 
 706 
 
 cepted a transfer of $6,000 of stock, the 
 rest of the shares being transfered to M. 
 and S.for the balance of the real price. 
 
 The plaintiff, to whom W. F. Doll had 
 indorsed the notes given by defendant, 
 sued in this action upon one of them which 
 the defendant refused to pay, claiming that 
 the payee of the note had been guilty of 
 fraud and misrepresentation in the sale of 
 the shares and that the plaintiff was not 
 the holder of the note in due course 
 or an endorsee for value. The 
 trial Judge found as a fact that there had 
 been material misrepresentations by W. 
 F. Doll which induced the defendant to 
 enter into the contract of purchase and sign 
 the note in question, but also that defend- 
 ant, after he became aware of the misrepres- 
 entations, did not repudiate the contract, 
 but along with M. and S. continued to 
 carry on the business, and long afterwards 
 paid two of the notes originally given , and 
 renewed others with the idea as he said 
 of putting off Doll until he could secure 
 further evidence of the fraud, and that 
 restitution could not be made if the sale 
 were rescinded. 
 
 Held, following Campbell v. Fleming, 1 
 A. & E. 40; Sharpley v. Louth and East 
 Coast R'y Co., 2 Ch. D. 663, and Morrison 
 V. The Universal Marine Ins. Co., L.R. 8 
 Ex. 197, that the defendant had waived 
 misrepresentation and that the plaintiff 
 was entitled to a verdict for the amount of 
 the note and interest. 
 
 Held, also, per Killam, J. 
 . 1. The evidence before the Court, stand- 
 ing by itself, might seem to warrant the 
 granting of relief to the defendant on the 
 ground that W. F. Doll had fraudulently 
 obtained a larger sum for the shares con- 
 veyed to the defendant than he was en- 
 titled to, and that the plaintiff was only 
 the holder in trust for him, and on the 
 ground of failure of consideration for a 
 definite portion of the $6,000 of notes, 
 following Beck v. Kantorowicz, 3 K. & J. 
 242, but, as no case for relief on that ground 
 had been set up in the statement of defence 
 or at the trial, it would not be proper to 
 give effect to it now, or to allow any 
 amendment of the pleadings at this stage, 
 as the plaintiff might have made her case 
 stronger at the trial if she had been called 
 upon to do so. 
 
 2. The evidence showed that the sale 
 impeached by defendant was a sale of the 
 shares en bloc to three parties for a single 
 consideration and, following Morrison v. 
 Earls, 5 O.R. 434, that the purchase could 
 not be avoided by the defendant alone as 
 
 to some of the shares, but if rescinded at all 
 it must be so as between all of the pur- 
 shasers on the one side and Doll on the 
 other, and as to the whole subject of the 
 sale, and for this no case had been made. 
 Doll v. Howard,, 11 M.R. 577. 
 
 3. Rescission of contract— Sate of 
 
 land — Secret payment by vendor to pur- 
 chaser's agent. 
 
 Defendant was induced by his agent to 
 agree to buy plaintiff's farm for $1,850, 
 although plaintiff's price for it was only 
 $1,800. He paid $250 in cash and went 
 into possession. It was represented to 
 him that there were 80 acres of cultivated 
 land on the farm, but it turned out that 
 there were only about 58 acres. On 
 discovering this he asked to have the 
 agreement cancelled and his money re- 
 turned, but this was refused. He then, 
 on the advice of the same agent, raised a 
 crop on the farm and remained in posses- 
 sion for over a year but refused to make 
 the further payments agreed on. 
 
 Plaintiff then brought this action to have 
 the agreement cancelled and the money 
 he had received forfeited. At the trial 
 it came out that the plaintiff had paid 
 the agent $50 out of the money paid by 
 defendant, who asked to have the agree- 
 ment cancelled and his money refunded 
 to him. 
 
 Held, without deciding whether de- 
 fendant by his inaption had lost his right 
 to repudiate the bargain on account of 
 the shortage in the cultivated area, and 
 distinguishing Campbell v. Fleming, (1834') 
 1 A. & E. 40, that, on account of the newly 
 discovered secret payment by plaintiff to 
 the defendant's confidential agent, the 
 defendant had the right to ask for can- 
 cellation of the sale and repayment of the 
 $250, with costs of action. 
 
 Panama, &c., Co., v. India Rubber, &c. 
 Co., (1875) L.R. 10 Ch. 515, foUowed. 
 Murray v. Smith, 14 M. R. 125. 
 
 4. Contract — Rescission — Damages. 
 1. A misrepresentation by the vendor's 
 
 agent, without the knowledge of the 
 vendor, as to the locality of the land sold, 
 although innocently made, wiU, if relied 
 on by the purchaser, be sufficient to entitle 
 him to rescind the contract, although he 
 had the means of knowledge of the true 
 location before he entered into the agree- 
 ment. 
 
 Rawlins v. Wickham, (1858) 3 De G. 
 & J. 317, and Derry v. Peek, (1889) 14 
 A. C. 337, followed. 
 
707 
 
 MISREPRESENTATION. 
 
 708 
 
 2. But, ' when the purchaser failed to 
 complain of the misrepresentation within 
 a reasonable time after he became aware 
 of the true location of the property and 
 promised the vendor to pay the next 
 instalment of the purchase money due 
 under the agreement after it was overdue, 
 saying that he was then a little short of 
 money, it should be held that he had 
 elected to affirm the contract and had lost 
 his right to rescind it. 
 
 Clough V. London & N. W. Ry. Co., 
 (1871) L. R. 7 Ex. 24, followed. 
 
 Verdict for the amount payable under 
 the contract in this case, without prejudice 
 to any right the defendant might have to 
 recover in another action any damages he 
 had sustained by reason of the misrepre- 
 sentation set up, no such relief having 
 been claimed in this action. Wolfe v. 
 McAHhur, 18 M. R. 30. 
 
 IV. Rescission of Contract for. 
 
 1. Appeal from trial Judge's finding 
 
 of t&ct— Specific performance — Misrepre- 
 sentation as to quality of land purchased — • 
 Fraud — Caveat emptor. 
 
 Defendant resisted the plaintiff's claim 
 for specific performance of a contract for 
 the sale of a farm to him, alleging that he 
 had wholly reUed on the plaintiff's repre- 
 sentations that the land consisted of a 
 black. sandy loam 18 to 20 inches deep 
 with clay bottom, free from white sand 
 and worth $15 per acre, and that these 
 representations were all untrue. The 
 defendant had not inspected the land 
 before purchasing, but had consulted 
 parties other than the plaintiff as to the 
 quality, location and value of the property. 
 
 The trial Judge's findings of fact, both 
 as to the alleged representations and as 
 to their falsity, were adverse to the defend- 
 ant. 
 
 The Court, while expressing doubt as to 
 whether, upon the written evidence, they 
 would have decided in the same way, 
 
 Held, that the verdict of the trial Judge 
 in this cas3 could not properly be reversed. 
 
 The trial Judge had held that, apart 
 altogether from the conflict of testimony,' 
 the defendant could not succeed in having 
 the contract rescinded on the ground set 
 up, as public policy requires that persons 
 should be expected to exercise ordinary 
 prudence in their business dealings instead 
 of calling on the courts to relieve them 
 from the consequences of their own 
 inattention and negligence, citing Attwood 
 
 V. Small, (1838) 6 CI. & F. 232, and 
 Slaughter v. Gerson, (1871) 13 Wall. (U.S.) 
 379. 
 
 Perdue, J.A., dissented from this opinion, 
 following Redgrave v. Hurd, (1881) 20 Ch. 
 D. 1, and Smith v. LanJd Corporation, 
 (1885) 28 Ch. D. 7. Hannah v. Graham, 
 17 M. R. 532. 
 
 2. Evidence — Waiver — County. Court — 
 Rules of equity — New trial. 
 
 In an action upon a note given for the 
 purchase of a machine, the defendant 
 pleaded that he purchased upon the 
 plaintiff's false representation of the age 
 of the machine. 
 
 He learned the true age on the 28th of 
 September. On the 9th October plaintiff 
 wrote him for payment of another note. 
 The defendant answ^ed on 10th No- 
 vember remitting $11.40 on the other 
 note. On the 13th November plaintiff 
 wrote for payment of the machine note. 
 On the 20th of November plai..tifE first 
 complained of the misrepresentation. He 
 returned the machine in the following 
 month. The jury found a verdict for 
 plaintiff. The county Judge ordered a 
 new trial and the plaintiff appeale,d. 
 
 Held, 1. That the evidence of parol 
 misrepresentation was admissible although 
 a written warranty was given. 
 
 2. When a county court Judge is 
 dissatisfied with a verdict, and orders a 
 new trial, his decision will not be reversed 
 unless it can be shown that he was clearly 
 wrong. 
 
 3. It is no answer to a charge of mis- 
 representation that the deceived party 
 haid the means of verification at hand. 
 
 4. If the representation was untrue, and 
 made recklessly and without reasonable 
 ground for beUef in its truth, the contract 
 might be rescinded. 
 
 5. Generally speaking the circumstances 
 that will support an action for deceit will 
 justify a party in rescinding the contract. 
 
 6. In the county courts the rules of 
 equity as to the rescission of contracts 
 prevail, rather than the rules of law. 
 
 7. The delay in complaining of the 
 misrejjresentation was evidence only of an 
 intention to confirm the contract, and 
 did not necessarily estop the defendant. 
 
 Per KiLLAM, J. — As the jury may have 
 proceeded upon the ground that by the 
 delay the defendant had elected to aflBrm 
 the contract, the verdict should not be 
 disturbed. Watson Manufacturing Co. v. 
 Stock, 6 M. R. 146. 
 
709 
 
 MISTAKE. 
 
 710 
 
 3. Secret payment by vendor to pur- 
 chaser's agent — Sale of land — Improve- 
 ments by vendee before rescission — Occupa- 
 ptian rent. Sparling v. Houlihan, 14 M.R. 
 134. 
 
 See Murray v. Smith, 14 M.R. 125. 
 Supra III, 3. 
 
 4. Warranty or Misrepresentation— 
 
 Fraudulent concealment of unsoundness of 
 horse. 
 
 The plaintiff filed his bill setting out 
 that the defendant had, by false and fraud- 
 ulent representations as to the soundness 
 of the animal, induced the plaintiff to pur- 
 chase a stallion for $500, and to give his 
 promissory notes therefor, secured by a 
 mortgage on his farm, and claiming a res-, 
 cission of the contract and cancellation and 
 deUvery up of the notes and mortgage. 
 
 The plaintiff, during negotiations for 
 the sale, having asked for, and the defend- 
 ant having promised to give him, a war- 
 ranty as to soundness, etc., the defendant, 
 after the sale and delivery of the horse was 
 complete, sent to the plaintiff a paper 
 worded as follows: — "I certify that the 
 horse. Pride of Oxford, etc., has been an 
 average foal getter while in my possession, 
 but what he will do I cannot say, under 
 other management," and signed by himself. 
 
 Counsel for the defendant contended 
 that this was a warranty, and that the 
 plaintiff's rights were limited to whatever 
 he could claim under it; that there was no 
 warranty as to soundness, and that evi- , 
 dence could not be received of any war- 
 ranty or misrepresentation outside of the 
 written warranty deUvered. 
 
 The Judge found on the evidence in 
 favor of the plaintiff, and 
 
 Held, That all the circumstances con- 
 nected with the sale could be inquired into 
 and that the evidence fully justified the 
 conclusion that the defendant had been 
 guilty of fraudulent concealment of disease 
 from which the horse was then suffering, 
 and from which he died a few months 
 afterwards; also that the plaintiff was 
 entitled to have his contract rescinded, 
 and to a decree as asked for in the prayer 
 of the bill. 
 
 Derry v. Peek, 14 App. Cas. 837, and 
 Redgrave v. Hurd, 20 Ch. D. 1, followed. 
 Budd V. McLaughlin, 10 M.R. 75. 
 
 V. Other Cases. 
 
 1. Materiality of — FraudvlerU repre- 
 sentation — Sale of land — Rescission of 
 contract. 
 
 A representation by the purchaser of 
 land to the vendor that he was buying for 
 himself and not for a third party to whom 
 he knew the vendor would not sell, al- 
 though false, is not a representation mater- 
 ial to the contract or one resulting in any 
 damage to the vendor as its immediate 
 and direct consequence, so that a sale 
 which the vendor was induced to make 
 by such false representation cannot be 
 rescinded on the ground of fraud. 
 
 Bell V. Macklin, (1887) 15 S.C.R. 576, 
 followed. Nicholson v. Peterson, 18 M.R. 
 106. 
 
 2. As to the quality of land Action 
 
 of deceit — Contract — Representation not 
 amounting to a warranty. 
 
 The defendant, on the negotiations for 
 the sale to the plaintiff of a number of 
 parcels of wild land, represented to the 
 plaintiff's agent that they were a fairly 
 good lot of farm lands. He had not seen 
 the lands and did not state that he had. 
 It turned out that a large portion of the 
 lands was not good enough for farming 
 purposes. 
 
 Held, that the plaintiff could not succeed 
 in an action to recover damages by reason 
 of the defendant's representations, which' 
 should be considered merely as expressions 
 of opinion not amounting to a warranty. 
 
 De Lassalle v. Guildford, [1901] 2 K.B. 
 221, followed. Mey v. Simpson, 17 M.R. 
 597. 
 
 Affirmed, 42^.C.R. 230. 
 
 See Bills and Notes, VI, 3. 
 
 — Church Lands Act, 1. 
 
 CONSTITUIONAL LaW, 8. 
 
 — Contract, VII, 1, 2, 3; XI, 1; XV, 
 
 16. 
 — ■ Evidence, 28. 
 
 — Fratjd, 2. 
 
 — Injunction, III, 3, 4. 
 
 — PleadiJtg, XI, 15. 
 
 — • Principal and Agent, II, B; V, 6. 
 
 — Ratification. 
 
 — ■ Sale of Goods, IV, 1. 
 
 — ■ Sale of Land for Taxes, I, 2. 
 
 — Solicitor and Client, I, 2. 
 
 — Trustee and Cestui Que Trust, 1. 
 — ■ Undue Influence. 
 
 — ■ Vendor and Purchaser, VI, 7, 8, 17. 
 
 MISTAKE. 
 
 1. Election to afEirm voidable con- 
 tract — Rescission of contract. 
 
 1. The mistake of one party to an agree- 
 ment for the purchase of land as to the 
 
711 
 
 MISTAKE OF SOLICITOR. 
 
 712 
 
 amount of land purchased, when the mis- 
 take is not known to the other party and 
 there is nothing in the language or conduct 
 of the other party which led or contributed 
 to the mistake, does not give a right of 
 rescission unless a hardship amounting to 
 injustice would be inflicted upon the party 
 by holding him to his bargain and it would 
 be unreasonable to do so. 
 
 TampliuY. James, (1880) 15 Ch. D. 215, 
 and Miller v. Dahl, (1894) 9 M.R. 444, 
 followed. 
 
 2. If a purchaser of land enters into 
 and retains possession of the land and pays 
 two monthly instalments of the purchase 
 money after he has found out his mistake, 
 he should be held to have elected to affirm 
 his contract and cannot afterwards have 
 it rescinded. Slouski v. Hopp, 15 M.R. 
 548. 
 
 2. Money paid in mistake — Recovery 
 of, frorri, agent. 
 
 Where money was paid by the plaintiffs, 
 through a mistake of fact caused by for* 
 getfulness on the part of a clerk, to the 
 defendants as assignees of B., who was 
 not in equity and good conscience entitled 
 to retain it. 
 
 Held, that the mone^-might be recovered 
 back, but only to the extent to which it 
 would be inequit^able for B. to retain it. 
 
 The plaintiffs had agreed to make a loan 
 to B.,on mortgage of a building in course 
 of erection, arid would Jiave made an 
 advance of only $500 on account at the 
 particular time intquestion; but, owing to 
 the f orgetfulnes^ ot a clerk as to the amount 
 previously advaiiced, they issued a cheque 
 for $2,000 instead. ' It appeared, however, 
 that, considering the advanced state of the 
 building, B. was then entitled on the 
 terms of the loan to have $1,067 paid over. 
 
 Held, that., the plaintiffs could recover 
 only the difference between the $2,000 and 
 the $1,067, and not the whole of the $1,500 
 which they had overpaid by mistake. 
 
 Chambers v. Miller, 13 C.B.N.S. 125, 
 distinguished, Confederation Life Ass. v. 
 Merchants' Bank, 10 M.R. 67. 
 
 3. Unilateral mistake — Specific per- 
 formance of agreement — Mistake by one 
 party, when ground of relief. 
 
 Specific performance of an agreement 
 will not be refused on the ground of a 
 mistake of one of the parties to it, where 
 the mistake was not known to the other 
 party, and there was nothing in the 
 language or conduct of the other party 
 which led or contributed to the mistake, 
 
 unless a hardship amounting to injustice 
 would be inflicted upon the party by 
 holding him to his bargain, and it would 
 be unreasonable to hold him to it, or give 
 the other 'party an unconscionable ad- 
 vantage. 
 
 Taviplin v. James, 15 Ch. D. 215, 
 foUowed. Miller v. Dahl, 9 M. R. 444. 
 
 See,CoNTRACT, VII, 3; IX, 3, 5; IX, 3. 
 
 — Malicious Phosbcution, 1. 
 
 — Mebgeb. 
 
 — Practice, XX, B, 4. 
 
 — Rectification op Deed, 1, 2. 
 
 — Vendor and PtrBCHASER, III, 2. 
 
 MISTAKE OF SOLICITOR. 
 
 See Appeal prom Order, 4. 
 — Practice, II, 1; XII, 3. 
 
 MISTRIAL. 
 
 See Criminal Law, XIV, 1. 
 
 MIXING OF ACCOUNTS. 
 
 See Garnishment, V, 7. 
 
 MIXING OF GOODS. 
 
 See Money Had and Received. 
 
 MIXED JURY. 
 
 See Jury Trial, I, 7, . 
 
 MONEY HAD AND RECEIVED. 
 
 Recovery by cestui que trust of 
 proceeds of his property received 
 from trustee by another — Mixing of 
 
 County Court appeal. Defendant ship- 
 ped a quantity of wheat in a car from 
 Blake Siding in Manitoba to Duluth with 
 instructions that the wheat was to be 
 unloaded at Roland and cleaned and dried 
 at the plaintiff's elevator there. This 
 
713 
 
 MONEY LENDERS' ACT. 
 
 714 
 
 was done and the wheat was thereby 
 reduced in bulk to about 573 bushels. 
 The plaintiff's employees, i^ reloading it 
 into the car, supposing it to be the plaint- 
 iff's wheat, added about 260 bushels of 
 plaintiff's own wheat to make up a car 
 load and forwarded the car to its destin- 
 ation. 
 
 Defendant had obtained an advance of 
 money from one Brown, the repayment of 
 which he secured by transferring to Brown 
 the biU of lading for the wheat with the 
 agreement that Brown should sell it and, 
 after deducting the amount of the loan, 
 pay the balance to the defendant. 
 
 Brown afterwards sold aE the wheat in 
 the car including plaintiff's 260 bushels, 
 received the proceeds, paid himself and 
 accounted to defendant for the balance. 
 
 So far as appeared neither Brown nor 
 defendant knew until afterwards that any 
 of the wheat so sold belonged to plaintiff. 
 
 Plaiatiff had a verdict in the County 
 Court for the amount reaUzed by defendant 
 for the 260 bushels, and defendant 
 appealed. 
 
 Held, (1) There was a mixture of goods 
 by accident and the owners became 
 tenants in common of the whole in the 
 proportions which they severally contri- 
 buted to it. 
 
 (2) That Brown, as regards the wheat 
 in question, stood in a fiduciary relation 
 towards both plaintiff and defendant; 
 that the proceeds of property sold by a 
 trustee without the consent of the owiier 
 can in equity, when traceable, be followed 
 as fully as the property itself, if uncon- 
 verted, could have been- that, so long as 
 such money can be definitely traced, it 
 makes no difference that it has been 
 mixed with other money; and that this 
 rule applies, not only in the case of a 
 trustee in the narrow and technical sense, 
 but to any person in any kind of a fidu- 
 ciary relation to others. 
 
 Harris v. Harris, (1861) 29 Beav. 110, 
 and Tn re Hallett, Knatchbull v. Halleit, 
 (1880) 13 Ch. D. 696, followed. 
 
 (3) That an equitable claim like the 
 plaintiff's in this action can now be enter- 
 ■tained by a County Court. 
 
 (4) That no demand and refusal was 
 necessary before action. 
 
 Per Bain, J. — That at common law, 
 also, the plaintiff would have been entitled 
 to recover from the defendant as for money 
 had and received by the defendant for 
 his use. 
 
 Appeal dismissed with costs. Boblin v. 
 Jackson, 13 M. R. 328. 
 
 See Bailment, 2, 
 
 — Chose in Action, 2. 
 
 — Company, IV, 9. 
 
 — Evidence, IS. 
 
 — Infant, 7. 
 
 — Shbeipp, 5. 
 
 MONEY LENDERS' ACT. 
 
 1. Evidence— ie.S.C. 1908, c. 122— 
 Assignment of salary — Evidence of a loan — 
 Evidence that accused made a practice of 
 lending at usurious rate— Oral testimony 
 to explain written contract. 
 
 The prosecutor, on applying for a loan 
 of $35, was required by the accused to 
 sign a contract in the form of an assign- 
 ment of his monthly salary for several 
 months to commence at a later date, 
 which was not to be acted on or notified 
 to his employer in case he should make 
 the stipulated payments of $2.80 per week 
 for 20 weeks, the first of which was to be 
 made in four days. There was no cove- 
 nant to make these payments so that the 
 accused was without remedy in case the 
 prosecutor should die or fail to earn any 
 salary. 
 
 At the trial, the entries of the transac- 
 tion in the books kept by the accused and 
 oral testimony as to its nature were 
 admitted to show that it was in reality 
 a loan and not, as accused contended, a 
 mere purchase of the prosecutor's future 
 salary earnings. 
 
 Held, that the oral testimony and 
 entries in the book were admissible to 
 show the real nature of the transaction and 
 they sufficiently showed that it was a 
 loan of money within the meaning of the 
 Money-Lenders' Act, R.S.C. 1906, c. 122, 
 s. 11, and at a rate of interest greater than 
 that authorized by that Act. 
 
 Held, however, that, under section 2 of 
 the Act, the prosecutor should have given 
 evidence to show that the accused had 
 made a practice of lending money at a 
 higher rate than ten per cent, per annum, 
 and that, as no such evidence had been 
 given, the conviction must be quashed. 
 Rex v. Clegg, 18 M. R. 9. 
 
 2. Liability of salaried employee of 
 person whose money is lemt— Usury. 
 
 A person in the employment of anothor 
 person, not a resident of Canada, whose 
 money is lent, acting as the manager of 
 his business, although paid by salary^ and 
 having no share in the excessive interest 
 
715 
 
 MONOPOLY. 
 
 716 
 
 charged, may be convicted as a money- 
 lender under the Money-Lenders' Act, 
 R.S.C. 1906, c. 122, and section 69 of the 
 Criminal Code. Rex v. Glynn, 19 M. R. 
 63. 
 
 MONOPOLY. 
 
 See MiFNiciPALiTT, I, 7. 
 — ■ Street Railway. 
 
 MORTGAGE. 
 
 See Interest, 1. 
 
 — Parties to Action, 7. 
 
 MORTGAGE SUIT. 
 
 See Mortgagor and Mortgagee, V, 1; 
 VI, 2, 12, 14. 
 
 — Practice, XVII, 3; • XVIII, 2; 
 
 XXVIII, 14. 
 — - Privity of Contract. 
 
 — Rectification of Deed. 
 
 MORTGAGEE IN POSSESSION. 
 
 See MoRTGAfioB AND Mortgagee, VI, 11. 
 
 MORTGAGOR AND MORTGAGEE. 
 
 I. 
 
 II. 
 III. 
 IV. 
 
 V. 
 VI. 
 
 Foreclosure. 
 Interest. 
 Power of Sale. 
 Redemption. 
 
 Sale. 
 
 MlSCBLLANEOtrS. 
 
 I. Foreclosure. 
 
 1. Implied covenant to indemnify 
 mortgagor — Foreclqsure under Real Prop- 
 erty Act — Right of action against mortgagor 
 on covenant for payment — Liability of 
 transferee from mortgagor to indemnify him 
 against mortgagee's claim for payment — 
 Real Property Act, R.S.M. 1902, c. 148, 
 sg. 89, 114, 126. > 
 
 1. Under sections 114 and 126 of The 
 Real Property Act, R.S.M. 1902, ic. 148, 
 as they stood prior to the amendments of 
 the Act by 1 George V, c. 49, a mortgagee, 
 
 even after foreclosure under the Act, may, 
 if he still retains the property, sue the 
 mortgagor on his covenant for payment; 
 and, therefore, in such a case, a' mortgagor 
 who has transferred the property may call 
 upon his purchaser to pay the mortgage 
 money under the implied covenant to 
 indemnify him set forth in section 89 of 
 the Act. 
 
 WiUiams v. Box, (1910) 44 S.C.R. 1; 
 Piatt V. Ashbridge, (1865) 12 Gr. at p. 
 106; Campbell v. Holyland, (1877) 7 Ch. 
 D. 166, and Blunt v. Marsh, (1888) 1 
 Terr. L. R. 126, followed. 
 
 2. Payment by the mortgagor in such 
 a case is not a condition precedent to his 
 right of action on the purchaser's obUga^ 
 tion to indemnify. Protection may be 
 afforded to the purchaser by payment into 
 Court for the proper application of the 
 money. 
 
 Culliny. Rinn, (1888) 6 M.R. 8, and 
 Mewbuni v. Mackelcan, (1892) 19 A.R., 
 729, foUowed. Noble v. Campbell, 21 M. 
 R. 597. 
 
 2. Opening foreclosure — Real Prop- 
 erty Act, R.S.M. 1902, c. 148, s. 71. 
 
 Section 71 of The Real Property Act, 
 R.S.M. 1902, c. 148, must be read along 
 with the other provisions of the Act, as 
 section 92 dealing with trusts, section 76 
 declaring the cases in which an action 
 will Ue against a registered owner, and 
 section 52 giving the Court power over 
 certificates of title in any proceeding res- 
 , pecting land, and foreclosure proceedings 
 conducted by the District Registrar, in 
 the case of lands which have been brought 
 under the Act, are no more binding 
 between mortgagor and mortgagee than 
 a decree and final order of foreclosure made 
 by the Court; and, if the dealings between 
 the parties, subsequent to the foreclosure, 
 are shown to be such as would be sufficient 
 in equity to open the foreclosm-e and let 
 the mortgagor in to redeem, they should 
 in the case of lands under the Act have 
 the same effect. 
 
 Campbell v. Bank of New South Wales, 
 Torrens Australasian Digest, p. 149, not 
 followed. 
 
 Under the circumstances set out in the 
 judgment it was held that the 
 defendant was entitled to be let in to 
 redeem the property in question. Barnes 
 w.Baird, 15 M. R. 162. 
 
 Distinguished, Williams v. Box, 19 M.R. 
 560, next case. 
 
717 
 
 MORTGAGOR AND MORTGAGEE. 
 
 718 
 
 3. Equitable jurisdiction of Court — - 
 
 Opening up foreclosure proceedings — Coti- 
 struction- of statutes — Real Property Act, 
 R£.M. 1902, c. 148, ss. 71, 113, 114, 126- 
 5 & 6 Edw 7., c. 75, s. 3— Certificate of 
 title, effect of. 
 
 After a mortgagpe of land under the 
 Real Property Act has regularly obtained 
 a final order of foreclosure from the 
 District Registrar under section 113 of the 
 Act, and has had the same entered in the 
 register as mentioned in section 114, and 
 has obtained a certificate of titl^ for the 
 property, the Court has no power to open 
 the foreclosure and allow the mortgagor 
 in to redeem, although the circumstances 
 are such that a final order of foreclosure 
 made by the Court itself would be set 
 aside and the mortg3,gor let in to redeem. 
 
 Effect of section 71 of the Act as to 
 certificates of title discussed. 
 
 Bank of New South Wales v. Campbell, 
 11 A.C. 192, and Assets Company v. Mere 
 Roihi, [1905} A.C. 202, followed. 
 
 Barnes v. Baird, 15 M.R. 162, dis- 
 tinguished. 
 
 Section 126 of the Act as amended in 
 1906, c. 75, preserving to' the Court 
 jurisdiction over "mortgages," cannot be 
 construed so' as to destroy the effect of 
 the plain language of sections 71 and 114. 
 Williams v. Box, 19 M. R. 560. 
 
 On appeal to the Supreme Court, 
 Held, that, under the provisions of 
 section 126.of the Manitoba Real Property 
 Act, R.S.M. 1902, c. 148, as amended by 
 section 3 of chapter 75 of the statutes of 
 Manitoba, 5 & 6 Edw. VII, the Court 
 has jurisdiction to open up foreclosure 
 proceedings in respect of mortgages fore- 
 closed under sections 113 and 114 of the 
 Act, notwithstanding the issue of a 
 certificate of title, in the same manner 
 and upon the same grounds as in the case 
 of ordinary mortgages, at aU events where 
 rights of a third party holding the status 
 of a bona fide purchaser for value have 
 not intervened. Williams v. Box, 44 
 S.C.R. 1. 
 
 Leave to appeal to Privy Council 
 refused. 
 
 4. Relief on payment of overdue 
 part of mortgage debt, although 
 whole amount payable under accel- 
 eration clause in mortgage — King's 
 Bench Act, R.S.M. 1902, c. 40, Rules 277, 
 21%— Real Property Act, R.S.M. 1902, c. 
 148. s. 117. 
 
 Appeal from an order of the Referee, 
 in an action for foreclosure and a personal 
 order for payment, staying proceedings 
 after judgment under Rule 278 of the 
 King's BenQh Act, R.S.M. 1902, c. 40, 
 upon payment of the overdue instalment 
 of principal, interest and costs. ' 
 
 Meld, (1) The action was one for fore- 
 closure within the meaning of Rules 277 
 and 278 of the King's Bench Act, although 
 judgment for the amount of the debt was 
 also asked for. 
 
 (2) A provision in a mortgage that, 
 upon default in payment of an instalment 
 of principal or interest, the whole should 
 become due is not one against which 
 equity wiU reUeve as being in the nature 
 of a penalty: Sterne v. Beck, (1863) 1 De 
 G. J. & S. 595. 
 
 (3) Although Rule 278 says that pro- 
 ceedings may be stayed in the action after 
 judgment "upon paying into court the 
 ambunt then due for principal, interest 
 and costs," the relief ordered could not be 
 granted to the defendant under that Rule, 
 because, by virtue of the acceleration 
 clause in the mortgage, the amount then 
 due was the fuU amount of the principal 
 debt, and ecjuity will not reheve against 
 such a provision. 
 
 (4) The defendant was entitled to the 
 reUef ordered by virtue of section 117 of 
 The Real Property Act which provides 
 that a mortgagor, under the circumstances 
 appearing in this case, may "pay such 
 arrears as m^y be in default under the mort- 
 gage together with costs to be taxed by 
 the District Registrar, and he shall there- 
 upon be reheved from the consequences of 
 non-payment of so much of the mortgage 
 money as may not then have become due 
 and payable by reason of lapse of time." 
 
 (5) Said section 117 of The Real Prop- 
 erty Act, notwithstanding it is preceded 
 and followed by sections relating only to, 
 mortgages registered under the new sys- 
 tem, is not so limited, but expressly appMes 
 to aU mortgages including those registered 
 imder the old system. National Trust v. 
 Campbell, 17 M. R. 587. 
 
 5. Right to foreclosure. 
 
 A mortgage contained a proviso for 
 redemption as follows: — "Provided this 
 mortgage to be void on payment of $900 
 of lawful money of Canada, with interest 
 at eight per centimi per annum as follows: 
 — Firstly, the said principal sum to bear 
 interest at the said rate from the date 
 hereof until the first day of December next, 
 to be then paid: and thereafter, secondly, 
 
719 
 
 MORTGAGOR AND MORTGAGEE. 
 
 720 
 
 the said principal and the interest thereon 
 to be payable by an annuity of $91.80 per 
 annum for twenty years, being composed 
 of the interest on the said principal at the 
 said rate of eight per centum per annum, 
 and a sum for the progressive sinking of 
 the debt, of $2.20 per centum per annum, 
 such annuity to be paid in half yearly 
 payments of $45.90 each on the first days 
 of June and December in every year, the 
 first of such payments to be made on the 
 first day of June next." 
 
 Held, on demurrer, that the instrument 
 was simply a mortgage securing repayment 
 of a sum of money advanced by the 
 plaintiffs, in instalments extending over 
 a period of twenty years. 
 
 The fact that the plaintiffs had a power 
 of sale did not prevent an apphcation to 
 the Court for foreclosure. To obtain a 
 foreclosure of the equity of redemption, 
 upon def a;ult in the payment of a mortgage, 
 is what a mortgagee is entitled to. 
 
 In the case of a mortgage where there 
 has been default in payment, foreclosure 
 is the appropriate remedy. Credit F'oncier 
 Franco-Canadien v. Andrew, 9 M. R. 65. 
 
 II. Interest. 
 
 1. Compound Interest — Rate of inter- 
 est after maturity of mortgage — "Till the 
 whole of the principal money is paid." 
 
 A mortgage of real estate provided for 
 the p'ayment of the principal money on July 
 1st, 1888, with interest at ten per cent. 
 Half-yearly, "on so much principal money 
 as shall from time to time remain unpaid 
 till the whole of the principal money is 
 paid." There was also a proviso for com- 
 pound interest as follows: "That, in case 
 default shall be made in payment of any 
 sum to become due for interest * * * *^ 
 compound interest shall be payable, and 
 the sum in arrear for interest from time to 
 time . shall bear interest at the same rate 
 as the principal money secured by these 
 presents; and, in' case the interest and 
 compound interest are not paid in six 
 months from the time of default, a rest 
 shall be made and compound interest shall 
 be payable on the aggregate amount then 
 due, and so on from time to time." 
 
 Held, that after the 1st July, 1888, the 
 mortgagees were only entitled to six per 
 cent, simple interest. 
 
 St. John V. Bykert, 10 S.C.R. 278; 
 People's Loan Co. v. Grant, 18 S.C.R. 262, 
 and Powell v. Peck, 12 O.R. 492, 15 A.R. 
 
 138, followed. Manitoba and N.W. Loan 
 Co. v. Barker, 8 M.R. 296. 
 
 Distinguished, Credit Fonder v. Schultz, 
 9 M.R. 70. 
 
 2. Rate of interest after maturity 
 of mortgage — Contract or damages, " Un- 
 til the whole is fully paid and satisfied." 
 
 A mortgage of real estate provided for 
 the payment of the principal money at the 
 expiration of five years from the date 
 thereof, together with interest thereon at 
 the rate of nine per cent, per annum, "until 
 the whole is fully paid and satisfied." 
 
 Held, that, after the time fixed for pay- 
 ment of the principal money, the mort- 
 ga,gees were entitled to no more than the 
 statutory rate of six per cent, per annum 
 on the unpaid principal. % 
 
 The Peoples' Loan and Deposit Co. v. 
 Grant, 18 S.C.R. 262, followed. 
 
 Powell V. Peck, 15 A.R. 138, discussed. 
 
 Freehold Loan Co. v. McLean, 8 M.R. 
 116. 
 
 Distinguished. Credit Fonder v. Schultz, 
 9 M.R. 70. 
 
 3. Rate of interest after maturity of 
 
 mortgage "To be paid on all and any 
 
 payment in default." 
 
 A mortgage under ihe Act respecting 
 Short Forms of Indentures contained the 
 usual clauses, but, in addition thereto, 
 there was the following. 
 
 "The said mortgagor covenants with the 
 said Company that the mortgagor wiU pay 
 the mortgage money and interest, and 
 observe the above proviso, and in the case 
 of default, at the said rate, compounded 
 with rests each halt year, to be paid on all 
 and any payment in default, whether of 
 principal or interest or both." 
 
 Held, that interest was payable after 
 maturity, at the rate of eight per cent, 
 per annum. 
 
 The following cases distinguished: 
 
 People's Loan and Deposit Co. v. Grant, 
 18 S.C.R. 262. 
 
 FreeholdLoanCo. v. McLean, 8 M.R. 116. 
 
 Manitoba and N. W. Loan Co. v. Barker, 
 8 M.R. 296. 
 
 Credit Fonder v. Schultz, 9 M.R. 70. 
 
 III. Power op Sale. 
 
 1. Negligence in exercising. 
 
 The plaintiff claimed damages for the 
 sale of his farm by defendants at auction 
 under powers of sale contained in two 
 mortgages, interest being in arrear. The 
 
721 
 
 MORTGAGOR AND MORTGAGEE 
 
 723 
 
 property was near Portage la Prairie and 
 ~ in the centre of a district of good farming 
 land. The evidence showed, in the 
 opinion of the Court, that the property 
 was worth at least $3,500, and would have 
 brought that amount at an auction sale 
 if properly advertised. Defendants, how- 
 ever, sold it for $2,800 subject to unpaid 
 taxes. ■ 
 
 Held, that defendants were liable for the 
 difference between the two amounts, be- 
 cause they had so negligently and care- 
 lessly conducted the sale proceedings that 
 the property was sacrificed. 
 
 The objections to the advertisement 
 and sale were as follows : 
 
 1. There was no advertisement in any 
 local newspaper; but only in a newspaper 
 published in the town of Brandon, between 
 seventy and eighty miles distant, and 
 which was not shown to have any circula- 
 tion in the neighbourhood of Portage la 
 Prairie. 
 
 2. The advertisement itself made no 
 mention of any of the improvements on 
 the farm, which had valuable buildings on 
 it, and 100 acres ready for the next year's 
 ol-op, but simply described the property 
 as the N. E. i of section 22_, township 12, 
 range 7 west. It also contained a descrip- 
 tion of another property to be offered for 
 sale at the same time, as to which it stated 
 that "the vendors are informed that on 
 parcel one (1) there is a two-story dweUing 
 house," thus suggesting the inference that 
 the plaintiff's land was unimproved. 
 
 3. The sale took place at Brandon in- 
 stead of Portage la Prairie. 
 
 Aldrich v. Caraoda Permanent, (1897) 
 24 A.R. 193, and National Bank of 
 Australasia v. United Hand-^n- Hand, etc., 
 Co., (1879) 4 A.C. 391, foUowed. Carndhers 
 V. Hamilton Provident and Loan Society, 
 12 M.R. 60. 
 
 2. In mortgage registered under the 
 Real Property Act — Possession of mort- 
 gaged premises held by mortgagee for statu- 
 tory period — Real Property Limitation Act, 
 R.S.M. 1902, c. 100, s. 20— Real Property 
 Act, R.S.M. 1902, c. 148, ss. 75, 110, 111— 
 Laches — A cquiescence . 
 
 1. A mortgagee under a mortgage of 
 land registered under the Real Property 
 Act, whether the power of sale contained 
 in the mortgage may be exercised without 
 notice or after notice, can only make a 
 valid sale of the property, (1) by the direc- 
 tion or order of the district registrar under 
 -section 110 of the Act, or (2) by an action 
 in the Court of King's Bench for fore- 
 
 closure or sale; and, therefore, a, pur- 
 chaser from the mortgagee, although the 
 latter be lawfully in possession and pur- 
 ports to sell and convey the land, does not 
 acquire a title free from the mortgagor's 
 right to redeem, when such sale is not made 
 under the directions or order of the dis- 
 trict registrar or in an action in the court. 
 
 2. In such a case section 111 of the Act 
 does not apply so as to make the sale good. 
 
 3. Section 75 of the Real Property Act, 
 which provides that "After land has been 
 brought under this Act no title thereto 
 adverse or in derogation to the title of the 
 registered owner shall be acquired by any 
 length of possession merely," means the 
 same as if the word "merely" had been 
 omitted, and operates so as to prevent 
 the mortgagee and all persons claiming 
 under him from obtaining, under section 
 20 of the Real Property Limitation Act, 
 R.S.M. 1902, c. 100, a declaration of the 
 Court that the mortgagor's equity of re- 
 demption has been lost, in consequence of 
 adverse possession for more than ten years. 
 
 Belize Estate Co.. v. Quitter, [1897] A.C. 
 367, distinguished. 
 
 4. Neither can such a, declaration be 
 obtained, on the ground of the laches and 
 acquiescence of the mortgagor or his repre- 
 sentatives, in an action by the purchaser 
 asserting a title in himself and claiming to 
 be registered as the owner of the land, 
 relying only on such a sale as is referred to 
 in above paragraph 1. 
 
 Smith V. National Trust Co., 20 M.R. 
 522. 
 
 Affirmed, 45 S.C.R. 618. 
 Leave to appeal to the Privy Council 
 refused. 
 
 3. Sale by mortgagees under — Bill to 
 restrain proceedings under covenant — De- 
 murrer — Inability of mortgagees to re-convey. 
 
 A mortgagee who has bona fide exercised 
 a power of sale contained in his mortgage 
 deed, and who has thereby reaUzed only 
 part of the amount due, can proceed to 
 enforce payment of any deficiency. He 
 can so proceed against a surety as well as 
 the original debtor; but, where the power 
 of sale has not been exercised hona fide, 
 and has been used for an improper pur- 
 pose, that is a defence to an action upon 
 the covenant brought after such improper 
 exercise of the power. 
 
 The defendants, having put it out of 
 their power to re-convey to the plaintiffs, 
 upon payment of the piortgage money, and 
 having done this by an exercise of a power 
 
723 
 
 MORTGAGOR AND MORTGAGEE. 
 
 724 
 
 of sale, which was not bona fide, but 
 inteaded to cut out the equity of redemp- 
 tion, while stiU enforcing payment of the 
 debt, were restrained from enforcing a 
 judgment which they had previously re- 
 covered on the covenant in the mortgage. 
 Kelly V. Imperial Loan, &c., Co., 11 
 S.C.R. 516, commented on. Croity v. 
 Taylor, 8 M. R. 188. 
 
 4. Short Forms Act, R.S.M. 1902, 
 
 c. 167 — Qualification of langiuige of Short 
 Form — Addition of power to sell withhut 
 notice. 
 
 The insertion of the word "calendar" 
 before the word "month" in the words 
 given in column one, number 13, of the 
 second schedule to The Short Forms Act, 
 R.S.M. 1902, o.,157, does not prevent the 
 mortgagee getting the benefit of the word- 
 ing of the corresponding long form; and, 
 where the words of the short form above 
 referred to were followed by the words 
 "Should default be made for two months 
 a sale or lease may be made hereunder 
 without notice,'" 
 
 Held, that these words were effectual 
 to enable the mortgagee to make a valid 
 sale and conveyance of the whole estate 
 mortgaged without giving any notice 
 whatever of his intention to do so. Re 
 Cotter, 14 M. R. 485. 
 
 5. "Without any notice" — Private 
 sale without advertisement. 
 
 A mortgage "provided that the Com- 
 pany (the mortgagees) on default of pay- 
 ment for two months may, without any 
 notice, enter upon and lease or sell the 
 said lands." 
 
 By statute 49 Vic. (Man.), c. 42, s. 6, it 
 was enacted that any mortgage containing 
 such words should be deemed to contain 
 the long form of words in the Act respect- 
 ing Short Forms of Indenture, (C.S.M., c. 
 61, 2nd sch., 2nd col.. No. 13,) which 
 provided a method of sale involving the 
 service of a written notice on the mort- 
 gagor. 
 
 Held, that a sale without notice to the 
 mortgagor could not be upheld. 
 
 A power of sale permitted a sale "by 
 pubhc auction or private contract." 
 
 Held, that a private sale could be made 
 without previous advertisement of it. Jte 
 Shore, 6 M. R. 305. 
 
 IV. Redemption. 
 
 1. Constructive ppssession by mort- 
 gagee of vacant lands — Acknowledgment 
 
 to prevent statutory bar — Acquiescence and 
 laches — Construction of contract- — Condition 
 in power of sale protecting purchasers — 
 Exercise of power of sale by giving agreement. 
 
 Action for redemption of a mortgage in 
 fee covering several parcels of land given 
 by plaintiff's predecessor in title. The 
 mortgage became in default, 1st Jan. 1892. 
 The land was vacant and, by the terms of 
 the mortgage, the mortgagor's right to 
 possession ceased upon default, but the 
 mortgagees had not taken actual posses- 
 sion. Under the power of sale in the 
 mortgage, the company had, between 
 1899 and 1903, made sales of the different 
 parcels to three several persons who were 
 made co-defendants in the action. The 
 purchasers had not only entered into agree- 
 ments to purchase, but had paid portions 
 of their purchase money, entered \nto 
 possession and made improvements on 
 the lands. The sales had been made 
 without notice to the plaintiff, relying on 
 the provision in the mortgage that "in 
 default of payment for one mopth and 
 ten days the said mortgagees may without 
 any notice enter upon the said land and 
 proceed under and exercise the power of 
 sale or lease hereinafter conferred." There 
 was no such power referred to after that 
 provision, but the statutory power of sale 
 under the Short Forms Act was contained 
 in an earlier portion of the mortgage. The 
 plaintiff allowed over ten years to elapse 
 without making any payment on the 
 mortgage or for taxes on the land. She 
 knew of the making of two of the sales 
 two years at least before commencing this 
 action; but made no objection to any of 
 them, although the Company had sought 
 her co-operation in endeavouring to 
 realize on the lands. By the time the 
 action was commenced, the lands had so 
 increased in value that it became worth 
 while to redeem them, if possible. 
 
 Held, (1) reveirsing the decision of 
 Mathers, J., that the "possession" re- 
 ferred to in section 20 of The Real Property 
 Limitation Act, R.S.M. 1902, c. 100, means 
 actual adverse possession and not a mere 
 constructive possession of vacant lands by 
 reason of the mortgagor being in default, 
 and the plaintiff was, therefore, not barred 
 by the statute. 
 
 Smith V. Lloyd, (1854) 9 Ex. 562; Agency 
 Co. V. ShoH, (1888) 13 A.C. 799, and 
 Bucknam v. Stewart, (1897) 11 M.R. 625, 
 followed. 
 
 (2) That the plaintiff had, by her laches 
 and acquiescence in the sales made by the 
 mortgagees, lost her right to redeem. 
 
725 
 
 MORTGAGOR AND MORTGAGEE. 
 
 726 
 
 Arehbold v. Scully, (1861) 9 H. L. Gas. 
 388, and Nutt v. EasU)n, [1899] 1 Ch. 
 873, followed. 
 
 (3) That the word "hereinafter" in the 
 power of sale quoted should be construed 
 to mean "herein" or "hereinbefore" and, 
 so construed, the power of sale was 
 sufficient and had been validly exercised. 
 The Court wiU correct such an obvious 
 ml st 9. Icp 
 
 Wilson V. Wilson, (185^) 5 H. L. Gas. 
 66, and Burgough v. Edridge, (1827) 1 Sim. 
 269, followed. 
 
 (4) The defendant purchasers were in 
 any case protected by the following clause 
 in the mortgage: No purchaser under 
 said power shall be bound to inquire into 
 the legality or regularity of any sale under 
 the said power or to see to the application 
 of the purchase money." 
 
 Dickie v. Angerstein, (1876) 3 Ch. D. 
 600, followed. 
 
 It an irregular or improper sale is made 
 by the mortgagee, the mortgagor has his 
 remedy by way of an action for damages: 
 Hook V. SmUh, (1881) 17 Ch. D. 434. 
 
 (5) The agreements of sale entered into 
 between the Company and the purchasers 
 were valid exercises of the power of sale, 
 and conveyances were not necessary. 
 
 Thurlow V. Mackeson, (1868) L. R. 4 
 Q. B. 97, followed. 
 
 (6) The posting up on the lands, after 
 the making of the sales, of a notice of sale 
 prepared by the Company's soHcitors did 
 not give the plaintiff a right to redeem. 
 It was not the act of the purchasers and 
 their rights could not be prejudiced by it. 
 Campbell v. Imperial Loan Co., 18 M. R. 
 144. 
 
 2. Conveyance absolute in form, but 
 given to secure debt — Real Property Act, 
 B.S.M. 1902, c. US— Real Property Limit- 
 ation 'Act,R.S.M. 1902, c. 100, s. 20— Con- 
 structive possession by mortgagee of vacant 
 land — Acknowledgment to prevent statutory 
 bar. 
 
 The plaintiff claimed a right to redeem 
 a parcel of land which she had in January, 
 1891, caused to be vested in the defendant 
 by a certific6,te of title in fee simple under 
 the Real Property Act in security for a 
 loan of $200, payable in two months. 
 
 Plaintiff paid no taxes on the property 
 after the transfer to defendant and had 
 never paid anything on the debt, and al- 
 lowed the matter to rest until October, 
 1902, when she asked defendant for a 
 statement of his claim. Defendant "then 
 sent plaintiff a memorandum showing. 
 
 among other things, the amount claimed 
 to be due on the $200 debt. 
 
 The land in question was vacant and 
 continued to be so until this action was 
 commenced in December, 1902. 
 
 Held, 1. The transfer of the land to' de- 
 fendant, having been given only as a 
 security, had the same effect as a bare 
 mortgage under the old system of regis- 
 tration without redemise clause, coven- 
 ants, or provisoes. 
 
 2. At the date of the certificate of title, 
 the defendant became entitled to the 
 possession of the land as it was vacant, 
 and he should be deemed to have "obtained 
 possession" at that date within the niean- 
 iing of section 20 of The Real Property 
 Limitation Act, R.S.M. 1902, c. 100, and, 
 consequeiitly, under that statute, plain- 
 tiff's right of action for redemption was 
 barred by the lapsei of over ten years. 
 
 Bucknam\. Stewart, (1897) 11 M.R. 625, 
 followed. 
 
 3. An acknowledgment of the right of 
 redemption given after the lapse of the 
 statutory period is of no avail to the mort- 
 gagor seeking redemption. 
 
 Sanders v. Sanders, (1881) 19 Ch. D. 
 373, followed. 
 
 Rutherford y. Mitchell, 15 M.R. 390. 
 
 But see Campbell v. Imperial Loan Co.t 
 18 M.R. 156 (ante). 
 
 3. Deed absolute in form but intend- 
 ed only as a security — Acknowledgment 
 obtained by duress. 
 
 Plaintiff, in 1901, gave defendant a quit 
 claim deed of the land in question as 
 security for a debt. Defendant after- 
 wards paid the money required to procure 
 title to the land from the Canadian North- 
 ern Railway Company; but, up to about 
 May, 1903, he recognized the right of the 
 plaintiff to redeem the land on payment 
 of what was then against it, viz., about 
 $900. Shortly afterwards, the defendant 
 drove out to the plaintiff's farm and told 
 him that if he wanted the farm he would 
 now have to pay $2,000 for it. In the fol- 
 lowing November, the plaintiff went to the 
 defendant's office and received from him 
 a letter written by the defendant, ad- 
 dressed to the plaintiff's wife, offering to 
 sell the farm to her upon certain conditions 
 for $2,000, and the defendant at the same 
 time induced the plaintiff to sign a letter 
 agreeing to leave the place and all his 
 improvements if the option to purchase 
 was not exercised before the first day of 
 November, 1904. When this last letter 
 
727 
 
 MORTGAGOR AND MORTGAGEE, 
 
 728 
 
 was signed, the plaintiff was told b.y the 
 defendant that he must sign it or leave the 
 place. The plaintiff was then, to the 
 knowledge of the defendant, in distressed 
 circumstances financially. 
 
 Held, that this transaction was, on its 
 face, most unfair and extortionate and, 
 having been obtained by duress, the ack- 
 nowledgment could not be allowed to 
 stand in the way of the plaintiff's right to 
 redeem which, up to that time, had clearly 
 not been extinguished. 
 
 Ford V. Alden, (1867) L.E. 3 Eq. at p. 
 463, followed. Winthrop v. Roberts, 17 
 M.R. 220. 
 
 4. After sale by mortgagee — Real 
 Property Act, R.S.M. 1902, c. 148, ss. 80, 
 lQS-112— Setting aside sale for gross under- 
 value. 
 
 1 . After sale proceedings regularly taken 
 by a mortgagee of land under the Real 
 Property Act, R.S.M. 1902, c. 148, pur- 
 suant to sections 108 to 112 inclusive, 
 whereby the property is sold to a bona 
 fide purchaser who makes the first pay- 
 ment called for by the terms of the sale 
 and binds himself to complete the pur- 
 chase, it is too late for the mortgagor to 
 apply for redemption even if the pur- 
 chaser has made default in strict compli- 
 ance with his agreement. 
 
 2. The fact that, in such a case, the pur- 
 chaser has not yet received his transfer 
 from the mortgagee makes no difference. 
 
 National Bank of Australasia v. United 
 Hand in Hand Co, (1879) 4 A.C. 391, 
 distinguished. 
 
 3. A sale by auction for $4850 of a pro- 
 perty valued at $7200 is not a sale at such 
 a gross under-value that equity should 
 interfere to set it aside. Saltman v. 
 McColl, 19 M.R. 456. 
 
 6. Time to redeem. 
 
 Held, — There should be only one period 
 of six months allowed for redemption, for 
 all parties, mortgagor and subsequent 
 incumbrancers. Rice v. Murray, 2 M.R. 
 :37. , 
 
 V. Sale. 
 
 1. After foreclosure — Variation of de- 
 cree. 
 
 The Court has no power to direct a sale 
 of a mortgaged property after foreclosure 
 has been ordered, without the consent of 
 the defendant, although it be shown that 
 the iliortgaged premises are not worth the 
 .amount due under the mortgage. Credit 
 
 Fancier Franco-Canadien v. Schultz, 10 
 M.R. 158. 
 
 2. Fraud on the Couit-^Decree for 
 
 sale — Execution issued for balance due- 
 Petition to set aside proceedings. 
 
 A decree was made in a mortgage suit 
 for sale of the mortgaged premises and 
 payment of any deficiency after sale. 
 The lands were knocked down to P. The 
 Master made a seport confirming the sale 
 and found a large balance due plaintiff 
 by C. & G., for which executions were 
 issued; and the lands were vested in P. 
 Subsequently, it was alleged on petition 
 that plaintiff really held the mortgage as 
 nominee and trustee of a certain company; 
 that there was no real sale to P., to whom 
 the land was knocked down for the benefit 
 of the company; that P, transferred the 
 land to an officer of the company without 
 consideration; that this officer trans- 
 ferred it to another who subsequently 
 died, having devised the land to his 
 executors in trust for the company; that 
 these officers always admitted themselves 
 to be trustees of the lands for the com- 
 pany, and that all the proceedings in the 
 suit were conducted 'for and on behalf of 
 the company, and at its expense. 
 
 Held, that the report confirming the 
 sale and the vesting order were obtained 
 by a fraud upon the Court and the de- 
 fendants. In the absence of some of the 
 parties interested, the sale could not be 
 formally set aside; but it, and all the sub- 
 sequent proceedings, could be treated by 
 the Court as nullities ; and, as all the 
 parties concerned in the subsequent re- 
 port and fi. fa's, issued thereon were before 
 the Court, those proceedings should be 
 set aside. Taylor v. Sharp, 8 M.R. 163. 
 
 3. Fraudulent scheme of mortgagee 
 to cut out equity of redemption — Sale 
 by way of exchange — Constructive notice — 
 Costs in redemption action. 
 
 Action to set aside the proceedings 
 taken by the defendant McKinstry for the 
 sale of a farm under the power of sale in a 
 mortgage from the plaintiff and the several 
 conveyances from McKinstry to one 
 Dickerson, from Dickerson to Mrs. Mc- 
 Kinstry, and from Mrs. McKinstry to the 
 defendant Barker, and seeking to redeem 
 the land from the latter. The property 
 was worth at least $600, but was at the 
 auction knocked down to Dickerson at 
 $195.. It was conveyed to Dickerson the 
 sarnie day by deed purporting to be made 
 under the power of sale, with the usual 
 
729 
 
 MORTGAGOR AND MORTGAGEE. 
 
 730 
 
 covenants in the statutory short form, and 
 Dickerson on the same day conveyed the 
 land to Mrs. McKijistry by an ordinary 
 quit claim deed for an expressed consid- 
 eration of $200. 
 
 These two conveyances were registered 
 two days after their execution, when Mrs. 
 McKinstry conveyed to the defendant 
 Barker, by a similar quit claim deed 
 without covenants, all her estate, right, 
 title, etc., in the land for an expressed 
 consideration J of $600. Mrs. Barker, 
 however, paid, no money, but Mrs. 
 McKinstry received in exchange a con- 
 veyance of a lot in the town of Dauphin. 
 
 It was conceded that the alleged sale to 
 Dickerson and the transfer to Mrs. 
 McKinstry were merely colorable pro- 
 cefedings of the mortgagee for his personal 
 benefit, and ineffective to cut out the 
 equity of redemption, but it was contended 
 on behalf of Mrs. Barker that she was a 
 purchaser for value without notice, holding 
 under a registered instrument, and that, 
 even if she were affected with notice of the 
 invalidity of the sale proceedings, Mrs. 
 McKinstry should be considered as an 
 assignee of the mortgage and her convey- 
 ance valid and effective as an exercise of 
 the power of sale in the mortgage. 
 
 During the pendency of the said^ 
 sale proceedings, McKinstry was nego-/ 
 tiating with Mr. Barker, husband^of the 
 other defendant, for the purchase of the 
 said town lot, and informed Mr. Barker 
 that he had the mortgage in question and 
 expected to get it paid by a subsequent 
 incumbrancer and to use the mortgage 
 money in paying for the lot. Barker 
 knew, also, that^the land was being put 
 up for sale under the mortgage, and a few 
 hours after the pretended sale to Dickerson 
 he met McKinstry, who said to him 
 either, "Mrs. McKinstry got that farm," 
 or "We got that farm," and suggested the 
 exchange of the farm for the town lot, 
 which was afterwards carried out. 
 
 The solicitor who acted for McKinstry 
 in the sale proceedings, and drew the 
 several conveyances for him and Mrs. 
 McKinstry, also acted for Mrs. Barker in 
 drawing the deed from her to Mrs. 
 McKinstry, but there was nothing to 
 show that he had been instructed to 
 examine the title of the farm on behalf of 
 Mrs. Barker. 
 
 Held, (1) That Mrs. Barker was not 
 affected with notice of anything the 
 solicitor knew, but that knowledge of the 
 contents of the conveyances, and of other 
 
 facts from which a court of equity would 
 infer that there had not been an actual 
 bona fide exercise of the power of sale, 
 should be imputed to Barker and through 
 him to his wife, as he acted as her agent, 
 and that she thus had sufficient notice of 
 the plaintiff's equitable right to prevent 
 her from claiming to hold the property 
 free from it. Notice of the facts is all 
 that should be required, whether or not 
 the party understands the effect that a 
 court of equity would give them. 
 Rose v.Peterkin, 13 S.C.R. 677, followed. 
 
 (2) The conveyances from McKinstry 
 to Dickerson and from him to Mrs, 
 McKinstry operated to vest the legal 
 estate in her, and she could exercise the 
 power of sale in the mortgage which had 
 not been exhausted by the proceedings 
 which had been taken. 
 
 Henderson v. Astwood, [1894] A.C. 150, 
 followed. 
 
 (3) The conveyance to Mrs. Barker 
 could not be treated as an exercise of the 
 power of sale because it did not purport 
 to grant the whole estate in mortgage, but 
 only the interest of the grantor, Mrs. 
 McKinstry, which was that of a mort- 
 gagee merely, there having been no 
 attempt to convey the interest of the 
 mortgagor. 
 
 (4) The power of sale in a mortgage 
 cannot be properly exercised by the mort- • 
 g'agee accepting-other property in exchange 
 instead of making a sale for money, unless, 
 perhaps, in a case where it is clear that 
 there is no value in the equity of redemp- 
 tion. 
 
 Smith V. Spears, (1893) 22 O.R. 286, 
 explained and distinguished. 
 
 (5) The defendant Barker was eiititled, 
 on being redeemed, to add to her claim 
 the costs of the sale proceedings up to 
 but not including the conveyance to 
 Dickerson or any subsequent conveyances, 
 and, following Harvey v. TebbuU, (1820) 
 1 J. & W. 197, the costs of the action so 
 far as it was a suit for redemption only; 
 but that, if she insisted on these costs, she 
 should pay the costs occasioned by her 
 resisting the claim to redeem, to be set 
 off against the mortgage money and costs 
 allowed to her. 
 
 Judgment that plaintiff was entitled to 
 redeem on payment to Mrs. Barker of the 
 mortgage money and interest and costs 
 as above indicated, and that McKinstry 
 should pay the costs both of the plaintiff 
 and of Mrs.Barker, Winters v. Mc Kinstry, 
 14 M. R. 294. 
 
731 
 
 MORTGAGOR AND MORTGAGEE. 
 
 732 
 
 VI. Miscellaneous. 
 
 1. Accounts in the Master's ofiice — 
 
 Subsegumt incumbrancer — Bonus or special 
 commission on mortgage loan, when allowed. 
 On an appeal by a subsequent incum- 
 brancer from the report of the Master on 
 the taking of the account of the plaintiff's 
 claim under a mortgage given by the de- 
 fendant, the following points were decided: 
 
 1. Where the party brought in to the 
 Master's office under notice provided for 
 by rule 117, Queen's Bench Act, 1895, 
 takes no steps to have the decree varied or 
 set aside, he cannot afterwards object to 
 the plaintifi's right to a decree of fore- 
 closure. 
 
 2. Where the plaintiff has served a 
 party with such notice to come in and 
 prove his claim as a subsequent incum- 
 brancer, he cannnot afterwards raise an 
 objection that the party so served has no 
 lien on the land. 
 
 3. A mortgagee, in bringing his accounts 
 into the Master's office, should charge 
 himself with the net proceeds only of any 
 rents or, profits received by him out of the 
 mortgaged premises, leaving the incum- 
 brancer to surcharge if he considers the 
 mortgagor entitle'd to a larger credit. 
 
 4. Where, in the negotiations for a loan 
 to be secured by a mortgage, the mortgagee 
 stipulates for a bqnus or special commis- 
 sion, or other charge in consideration of 
 advancing the money and in addition to 
 the interest, he may retain it if he deducts 
 the amount at the time from the loan and 
 only advances the balance, or in case the 
 amount is afterwards paid and settled, 
 but otherwise such bonus or special ad- 
 vantage cannot be recovered or allowed in 
 equity. 
 
 Potter v.Edwards,(1857) 26 L.J. Ch. 468; 
 Mainland v. Upjohn, (1889) 41 Ch. D» 
 126, followed. 
 
 James v. Kerr, (1889) 40 Ch. D. 524; 
 Eyre v. Wynn-Mc Kenzie, (1894) 1 Ch. 
 218, and Field v. Hopkins, (1890) 44 Ch. 
 D. 524, distinguished. Phillips v. Prout, 
 12 M.R. 143. , 
 
 2. Assignment of mortgage — Mort- 
 gage suit where mortgage assigned — Coven- 
 ant by mortgagee for payment — Remedy 
 against mortgagee as surety. 
 
 On an assignment of a mortgage, the 
 mortgagees covenanted to pay the assignee 
 all moneys secured by the mortgage, 
 according to its terms, in the event of de- 
 fault being made by the mortgagors. 
 
 In a suit for sale the original mortgagees 
 were made parties, and a personal order 
 was asked as against them. 
 
 Held, 1. That no order could be made 
 against the original mortgagees for im- 
 mediate payment, but only an order for 
 payment of any deficiency after a sale. 
 
 2. That the original mortgagees were 
 entitled upon payment forthwith after 
 decree of principal, interest, and the costs 
 of an undefended action at law against 
 them upon their covenant, to be dis- 
 charged from further Uability; and to an 
 assignment of the plaintiff's securities 
 upon payment of . any costs he might 
 have against the other parties. Taylor 
 V. Sharp, 2 M.R. 35. 
 
 3. Costs — Abortive sale. 
 
 Held, That where a mortgagee had 
 offered property for sale under a power of 
 sale, and the sale proved abortive, he was 
 entitled to the costs, the attempt to sell 
 having been bona fide. Cameron v. 
 Mcllroy, 1 M.R. 242. 
 
 4. Distress for interest — Landlord and 
 tenant — Attornment qZaiise — The Distress 
 Act, R.S.M., c. 46, s. 2. 
 
 A mortgage of lands contained a special 
 , attornment clause whereby the mortgagor 
 'became tenant of the lands to the defend- 
 ants at a yearly rental equal to the inter- 
 est on the amount of the loan to be paid 
 at the times appointed for the payments 
 of interest. This mortgage was not exe- 
 cuted by the mortgagee. 
 
 Held, that the relationship of landlord 
 and tenant was validly created between 
 the parties, and that on default of any 
 payment of interest the mortgagee might 
 distrain for a year's rent under the attorn- 
 ment clause, and take any goods upon the 
 premises, whether belonging to the mort- 
 gagor or not, and make a valid sale of 
 same. 
 
 But see, now, R.S.M. 1902, c. 49, s. 5. 
 
 Held, also, that sec. 2 of the Distress 
 Act, R.S.M. , c. 46, has no reference to the 
 right of mortgagees to distrain for rent 
 under a tenancy validly created, but only 
 to the right to distrain for interest as such 
 provided for in the ordinary distress 
 clause in the short form of mortgages set 
 out in the Act respecting Short Forms of 
 Indentures. lAnstead v. Hamilton Provi- 
 dent and Loan Society , 11 M.R. 199. 
 
 5. Growing crops — Right to, when 
 mortgagee takes possession under mortgage — 
 
733 
 
 MORTGAGOR AND MORTGAGEE. 
 
 734 
 
 Bight of mortgagee talcing possession after 
 crops cut down — Priority between mort- 
 gagee of land and mortgagee of growing 
 crops. 
 
 When a mortgagee actually enters into 
 lawful possession of land under the terms 
 of his mortgage, he becomes entitled to 
 any crops growing on the land as against 
 a mortgagee of the crops under a chattel 
 mortgage executed after his mortgage and 
 before possession taken; but, if the crops 
 are cut at the time of possession taken, the 
 holder of the chattel mortgage would, have 
 priority. 
 
 Lang v. Ontario Loan , and Savings Co., 
 46 U.C.R. 114, and In re Phillips, 16 Ch. 
 D. 104, followed. Harrison v. Carberry 
 Elevator Co., 7 W.L.R. 535. 
 
 6. Implied covenant to indemnify 
 vendor — Liability of purchaser of land 
 subject to mortgage — Foreclosure, effect of, 
 upon liability of mortgagor under covenant — 
 Parties to action. 
 
 The plaintiff sold certain land to the 
 defendant subject to two mortgages under 
 the Real Property Act, so that defendant 
 was under an implied covenant to indem- 
 nify the plaintiff against the mortgages. 
 
 The mortgagees subsequently recovered 
 judgment against the plaintiff for the 
 amount due on the mortgages, and after- 
 wards foreclosed them and obtained certi- 
 ficate of title to the property. 
 
 In this action by plaintiff to enforce the 
 defendant's implied covenant of indemnity 
 defendant raised the contention that the 
 plaintiff was released from his covenant 
 by the action of the mortgagees in obtain- 
 ing the foreclosure. 
 
 Held, that this question could not be 
 decided in the absence of the mortgagees, 
 and that unless plaintiff would amend, 
 pursuant to leave, adding the mortgagees 
 as parties defendant, the action should be 
 dismissed with costs. Noble v. Campbell, 
 20 M.R. 232. 
 
 7. Lease by Mortgagor. 
 
 A garnishing creditor of the mortgagor 
 is entitled as agaiast the mortgagee to rent 
 due in respect of a lease of the mortgaged 
 premises made after the mortgage (in the 
 statutory form) by the mortgagor. Green 
 V. Cauchon, 3 M.R. 248. 
 
 8. Merger — Conveyance of equity of re- 
 demption in discharge of debt — Pleading. 
 
 To an action iipon covenant in a mort- 
 gage defendant pleaded that he had 
 conveyed the equity of redemption to B., 
 
 who conveyed it to the mortgagee in dis- 
 charge of the debt. 
 
 Held, A good equitable plea. 
 
 After the conveyance to B there was an 
 implied obligation in equity on his part 
 to indenmify the mortgagor against the 
 debt. 
 
 Quaere, Whether in such a case the 
 relation of principal debtor and surety, as 
 between the mortgagor and B., was con- 
 stituted. Forrest v. Gibson, 6 M. R. 612. 
 
 9. Money advanced to construct 
 buildings — lAen for materials supplied — 
 Payment to contractor — Transactions in 
 fraud of mortgagor's rights — Redemption — 
 
 A Building and Loan Company ad- 
 vanced money to an iUiterate woman for 
 the purpose of aiding in the construction 
 of a house to be erected upon lands 
 mortgaged to it to secure the loan. The 
 mortgage contained no provision for ad- 
 vances to contractors, etc., as the work 
 progressed, beyond the ^following: 
 
 "And it is hereby agreed between the 
 parties hereto, that the mortgagees, their 
 successors and assigns, may pay any 
 taxes, rates, levies, assessments, charges, 
 moneys for insurance, liens, costs of suit, 
 or matters relating to hens or incum- 
 brances on the said lands, and solicitors' 
 charges in connection with this mortgage, 
 and valuator's fees, together with aU costs 
 and charges which may be incurred by 
 taking proceedings of any nature in case 
 of default by the mortgagor, her heirs, 
 executors, administrators or assigns, and 
 shall be payable with interest, at the rate 
 aforesaid, until paid, and, in default, the 
 power of sale hereby given shall be forth- 
 with exerciseable. And it is further 
 agreed that monthly instalments in arrear 
 shall bear interest at the rate aforesaid 
 until paid." 
 
 In a suit for redemption. 
 
 Held, Firstly, that the clause in the 
 mortgage did not justify the mortgagees 
 in making advances to contractors and 
 persons supplying material, without the 
 express order of the mortgagor. 
 
 Secondly, that the mortgagees ought 
 not to have recognized an order in favour 
 of the contractor for the total amount of 
 the loan when they knew that the con- 
 tractor had not completed his contract 
 and was, therefore, not entitled to the 
 money, when the order contained no 
 name of a witness, and showed that the 
 mortgagor was unable to sign her name. 
 
735 
 
 MORTGAGOR AND MORTGAGEE. 
 
 736. 
 
 The payment having been made by the 
 Loan Company to a lumber company 
 supplying material to the contractors for 
 the Duilding, without the express authority 
 of the mortgagor, and the lumber company 
 having taken an assignment of the mort- 
 gage, and attempted to enforce it against 
 the mortgagor, the , transaction was de- 
 clared fraudulent as against the mort- 
 gagor, and the payment to the lumber 
 company disallowed. 
 
 Held,- also, that the only costs the 
 assignees of the mortgage were entitled 
 to add to the mortgage debt were the 
 costs of an ordinary redemption suit 
 consented to by a mortgagee. 
 
 Judgment appealed from varied, and 
 appeal dismissed with costs, Hiebert v. 
 Black, 38 S. C.R. 557. 
 
 10. Mortgagee buying at tax sale — 
 
 Action on covenant — Removal by mortgagee 
 of buildings. 
 
 After a mortgagee had taken posses- 
 sion under his mortgage, purchased the 
 land at tax sale and obtained a convey- 
 ance, and removed valuable buildings 
 from the land, he obtained judgment upon 
 the covenant in the mortgage. 
 
 Upon a motion/ to stay proceedings on 
 the ground that the judgment had been 
 satisfied. 
 
 Held,-!. A mortgagee may purchase at 
 tax sale and then resist redemption. 'The 
 effect of the purchase is the same as if he 
 had obtained a final order of foreclosure. 
 It does not satisfy the covenant, but an 
 action on the covenant would let in 
 redemption. 
 
 . 2. The removal by the mortgagee of 
 buildings does not prevent ah action upon 
 the covenant. Waste is a matter of 
 account. 
 
 3. An application to stay proceedings 
 upon a judgment on thfe ground of its 
 satisfaction can properly be made in 
 Chambers. Miller v. McCuaig, 6 M. R. 
 539. 
 
 11. Mortgagees in possession — Com- 
 mission on rents received by agent of mort- 
 gagees — Manifest error in report — Costs. 
 
 A mortgagee cannot have any allowance 
 for his personal care or trouble in receiving 
 rents. 
 
 Where the property is at a distance, or 
 where the circumstances are such that the 
 mortgagee would, if himself the owner, 
 employ a bailiff or collector, an allowance 
 may be made. 
 
 The Master, in making his report, made 
 an error in the calculation of interest, 
 manifest on the face of it. Defendant 
 gave botice of appeal, plaintiffs' soUcitor 
 on being served with the notice of appeal, 
 having had his attention directed to the 
 error, at once wrote offering to attend in 
 chambers and consent to an order amend- 
 ing the report, but the appeal was pro- 
 ceeded with. 
 
 An order was made amending the report, 
 without costs to either party. Freehold 
 Loan Co. v. McLean, 9 M. R. 15. 
 
 12. Notice of credit — New day. 
 
 Held, Where, in a mortgage suit, a pay- 
 ment is made during the time fixed for 
 redemption, and no notice of credit is 
 given, there should be an order referring 
 it to the Master to fix, or the order may 
 itself fix, a new day for payment. Mani- 
 toba and N. W. Loan Company v. Scobell, 
 2 M. R. 125. 
 
 13. Proceedings to realize on prop- 
 erty in possession of a receiver — 
 
 Parlies to suit in Equity — Receiver of mort- 
 gaged ^property — Manager of mortgaged 
 railway — Sale of mortgaged railway prop- 
 erty — Right to sale in Equity where power 
 of sale is given by mortgage — Petition or 
 motion. 
 
 The plaintiffs as judgment creditors of 
 the defendant Company having obtained 
 a decree for the appointment of a receiver 
 of the railway, and procured the appoint- 
 ment of one of themselves who was in 
 possession as, such receiver, the petitioners, 
 mortgagees of the first 180 miles of J.he 
 railway together with all the revenue 
 thereof to secure certain bonds which 
 were in default, petitioned the Court for 
 leave to file a bill in this Court for the 
 appointment of a receiver and manager of 
 the mortgaged property and for fore- 
 closure thereof. Before the fihng of this 
 petition an order had been made adding 
 the petitioners as parties to the cause in 
 the Master's oflice, but this order had not 
 been served. 
 
 Held, (1) That, under circumstances 
 similar to those set forth in this petition, 
 mortgagees are entitled as of right to a- 
 receiver; that the petitioners were not 
 bound to be satisfied with the receiver 
 appointed at the instance of the plaintiffs, 
 and that the petitioners should have leave 
 to take proceedings for a receiver and for 
 sale of the mortgaged property, 
 
 (2) That the petitioners were not en- 
 titled to the appointment of a manager of 
 
737 
 
 MOTION BY OUTSIDE PARTY. 
 
 738 
 
 the railway, there being no legislative 
 ' authority for the transfer of the responsi- 
 bility of management from the hands of 
 the Company; nor could they sue for 
 possession or foreclosure. 
 
 (3) That it was proper to proceed by 
 petition instead of by motion, notwith- 
 standing the language of General Order 
 389. 
 
 (4) That mortgagees may proceed in 
 equity for a sale of the mortgaged property 
 immediately after default in payment, 
 
 ' notwithstanding that their mortgage con- 
 tains a power of sale which could not be 
 exercised until after the lapse of a named 
 period. Allan v. Manitoba & N. W. Ry. 
 Co. Re Gray, No. 1, 10 M. R. 106. 
 
 14. Lands purchased by Railway 
 Company from mortgagor — Mortgage 
 suit. 
 
 Plaintiffs were mortgagees of land under 
 a mortgage made by defendant McL. 
 After the making of the mortgage, de- 
 fendant McL. conveyed to defendant 
 R., and R.. conveyed to the defend- 
 ants, the C.P.R. Co., a strip across the 
 land for their track. 
 
 The bill was for foreclosure, for im- 
 niediate payment by MoL., and for posses- 
 sion as against Ross and the C.P.R. Co. 
 
 The answer of the C.P.R. Co. set up that 
 they had jnade an agreement with R. for 
 the purchase of the strip of land, and that 
 they had paid into court the purchase- 
 money, and given notice by advertisement 
 as required by the statute. 
 
 Held, that the plaintiffs coiild not have, 
 as against the railway company, delivery 
 of possession. 2. That the payment into 
 court protected the railway company 
 against the claim of the plakitiffs, and 
 that the rights of the latter were confined 
 to a claim against the compensation paid 
 into court. 
 
 Held, that, as against the defendant 
 McL.jtheplaintiffswere entitled to an order 
 for immediate payment, and, as against de- 
 fendant R., to delivery of possessipn of the 
 land not embraced in the deed to the rail- 
 way company. Manitoba Mortgage and 
 Investment Co. v. C.P.R., 1 M.R. 285. 
 
 16. Real Property Limitation Act, 
 
 S. 24 — Action on covenant — Statute of 
 Limitations — Lands outside jurisdiction — 
 Decision^ of English and Ontario Courts, 
 where different, on similar- statutes. 
 
 The provisions of section 24 of The Real 
 Property Limitation Act, R.S.M. 1892, c. 
 89, that no suit shall be brought to recover 
 
 any money secured by mortgage, &c. , 
 upon any land, after ten years after the 
 right to the same accrued, or ten years 
 after the last payment of principal or 
 interest, or the last acknowledgment 
 thereof has been made or given, apply to 
 any land, as well outside as within the 
 Province. 
 
 Semble. Where the decisions of Courts 
 of sister Provinces of Canada are at 
 variance with EngUsh decisions, on 
 questions where the law is substantially 
 the same in Imperial and Provincial 
 legislation, the doctrine adopted by the 
 EngUsh courts should be followed. McLen- 
 aghan v. Hetherington, 8 M.R. 357. 
 
 See Appeal from Master on Evidence. 
 
 — Costs, XIII, 1. 
 
 — Distress for Rent, 3. 
 
 — Landlord and Tenant, I, 3; II. 
 
 — Master and Servant, IT. 
 
 — Real Property Limitation Act, 3, 7. 
 
 — Rectification of Deed, 1. 
 
 — Sale of Land fob Taxes, VII, 2. 
 
 MOTION BY OUTSIDE PARTY. 
 
 See Practice, XXVIII, 15. 
 
 MOTION FOR JUDGMENT. 
 
 See Practice, XI, 2, 3; XXIV, 2, 3. 
 
 MOTOR VEHICLE. 
 
 See Negligence, VII, 4. 
 
 MULTIFARIOUSNESS. 
 
 See Information TO Restrain Nuisance. 
 
 — Injunction, I, 8. 
 
 — Mechanics' Lien, X, 2. 
 — ■ Pledge. 
 
 — Privity op Contract. 
 
 — Registered Judgment, 6. 
 — ■ Patent of Invention, 1. 
 
 — Pleading, VI. 
 
 — Sale of Land for Taxes, V, 2. 
 
 — Solicitor and Client, III, 2. 
 
 — Will, III, 4. 
 
739 
 
 MULTIPLICITY OF SUITS. 
 
 740 
 
 MULTIPLICITY OF SUITS. 
 
 See Pleading, I, 3. 
 
 MUNICIPAL ELECTIONS. 
 
 1. Disclaimer— Afiimapa^ Act, ss. 215, 
 247-252. 
 
 Held, notwithstanding section 215 of 
 the Municipal Act, that an election peti- 
 tion should not be filed complaining of the 
 return of a candidate for a municipal 
 office after he has handed in a disclaimer 
 under section 249, unless the seat is 
 claimed for the petitioner or some other 
 candidate. Reg. v. Murray, 5 U.C.L.J. 
 O.S. 87, and Reg. v. Blizard, L.R. 2 Q.B. 
 55, distinguished. 
 
 The' words "complained of" in section 
 249 are equivalent to "petitioned against." 
 Paterson V.Brown, 11 M.R. 612. 
 
 2. Disqualification — Contestation — 
 Seat claimed by petitioner. 
 
 Held, 1. A registrar and a county court 
 bailiff are disquaUfied for the office of 
 mayor and councillor respectively. 
 
 2. A returning officer must receive 
 nqminations for any candidate who ap- 
 pears to be assessed for $100, even if he be 
 in fact disqualified upon other grounds. 
 
 3. The petitioner claimed the seat, but 
 he appeared to be largely indebted to the 
 Municipahty, and a new election was 
 directed. Reg. ex rel, Duncan v. Laugh- 
 lin^ Reg. ex rel. Stevenson v. Blanchard, 
 2 M.R. 78. 
 
 3. Injunction to restrain assump- 
 tion of Municipal OfEice. 
 
 A Court of Equity will not, upon an 
 injunction biU, try the vahdity of an elec- 
 tion to office of mayor or councillor, even 
 though the custody of the books and papers 
 of the municipality be in question; at all 
 events, not unless there be others claiming 
 the right to hold the offices. Fairbanks v. 
 Douglas, 5 M.R. 41. 
 
 4. Irregularities of officials conduct- 
 ing elections — Directory or imperative 
 requirements of statutes — Illiterate voters — 
 
 , Secrecy of the ballot. 
 
 Sections 90, 116, 118, 191 and 287 of 
 The Municipal Act, R.S.M. 1902, c. 116, 
 relating to the duties of the municipal 
 officers in connection with the holding of 
 the annual election of the mayor of a city, 
 are directory and not imperative, and 
 
 breaches of any or all of those sections by 
 the officers, not amounting to wilful mis-' 
 conduct, and not materially affecting the 
 result of the polling, will not be sufficient 
 to warrant the declaring of the election 
 void. 
 
 Woodward v. Sarsons, (1875.) L.R. 10 
 C.P. 747, followed. 
 
 The following irregularities and omis- 
 sions, therefore, were held not to be fatal 
 to the election: 
 
 1. That the clerk did not post up 
 notices giving the names of the candidates 
 in all the places pointed out by section 90, 
 but Only in two of them. 
 
 Re iVycott and Ernestovm, (1876) 38 
 U.C.R. 633, followed. 
 
 Cases arising under the Canada Temper- 
 ance Act, or under local option clauses of 
 Liquor License Acts, such as Hatch v. 
 Oattland, (1910) 19 M.R. 692; Re Mace and 
 Frontenac, (1877) 42 U.C.R. 70; Re 
 ■Hendersonand Mono, (1907) 9 O.W.R.599, 
 and Hall v. South Norfolk, (1892) 8 M.R. 
 437, distinguished. 
 
 2. That the clerk did not, as required by 
 section 287, furnish each of the deputy 
 returning officers with two copies of 
 sections 276 to 287 inclusive (the sections 
 dealing with corrupt practices) and did not 
 post up a copy in his office and one in the 
 post-office. 
 
 West GwilUmbury v. Simcoe, .(1873) 20 
 Gr. 211, followed. 
 
 3. That most of the deputy returning 
 officers, poU clerks and agents failed to take 
 the oath of secrecy as to the marking of 
 the ballots required by section 191, there 
 being nothing to indicate that the officials 
 did not, in fact, substantially maintain 
 the secrecy of the ballot or that they pre- 
 mitted any invasion of that principle. 
 
 Wynn v. Weston, (1907) 15 O.L.R. 1, 
 followed. 
 
 4. That the clerk, as returning officer, 
 reheved the deputy and acted in his stead 
 for a short time in each of three polling 
 places on the polling day, although the 
 ballots initialled by Viitti were disaUowed. 
 
 Watterworth v. Buchanan, (1897) 28 
 O.R. 352, 357, and Re Ellis and Renfrew, 
 (1910) 21 O.L.R. 74, 85, followed. 
 
 5. TThat, in taking the votes of a large 
 number of persons unable to read, the 
 deputy returmng officers went into the 
 voting compartments with the voters and 
 marked their ballots or caused thSm to be 
 marked out of the sight of the agents of 
 the candidates contrary to section 116, 
 and this without any declarations of in- 
 ability to read having been made by the 
 
741 
 
 MUNICIPAL ELECTIONS. 
 
 742 
 
 voters, as most of them were foreigners 
 unable to understand English and the 
 deputies apparently acted in good faith. 
 6. That a number of the deputies failed 
 to make the declaration prescribed by 
 section 118 as to the proper keeping of the 
 poll book. 
 
 Held, also, that it would not be proper 
 to deduct from the total vote cast for the 
 successful candidate votes to the number 
 of the assisted voters who had not made 
 the declaration of inability Jo read, as the 
 petitioner had brought out in evidence 
 that many of the latter had marked their 
 ballots for him. 
 
 Re Prangley, Re Ellis and Re Schu- 
 macher, all in 21 O.L.R., at pp. 54, 74, and 
 522 respectively, followed. 
 
 In re Shoal Lake, (1910) 20 M.R. 36, 
 dissented from. 
 
 Re Brandon Election. Wallace v. Flem- 
 ing, 20 M.R. 705. 
 
 5. Petition to declare seat vacant — 
 
 rime for presenting petition — Powers of 
 clerk — Resignation of Reeue — Subsequent 
 withdrawal of resignation, 
 
 S. was elected Reeve of a rural munici- 
 pality in December, 1892. On 18th 
 March, 1893, he resigned his seat in the 
 council in writing pursuant to the statute. 
 Afterwards, on the 6th day of May, 1893, 
 S. attended a meeting of the counc 1, he 
 proceeded to takfe part in the proceedings 
 of the council and voted on a motion to 
 amend the minutes of the previous meeting 
 declaring that the council fl,ccepted the 
 withdrawal of his resignation, and declared 
 the motion carried by his casting vote, the 
 other members of the council) being 
 evenly divided. 
 
 A petition was then filed to have the 
 seat declared vacant. On the hearing 
 before the County Court Judge, the 
 respondent took two preliminary objec- 
 tions — 1. That the provisions of section 
 178 of the Municipal Act do not apply to 
 the case of a member of the council who 
 has resigned his seat. 2. That the petition 
 was not presented within the time, pre- 
 scribed by the statute. 
 
 These objections were over-ruled. 
 
 S. then applied in the Queen's Bench 
 for a prohibition. 
 
 Held, 1. That, under the circumstances 
 alleged in the petition, the remedy by 
 petition provided for in section 178 was 
 the proper remedy. 
 
 2. That the ' 21 days mentioned in 
 section 197, within which a petition must 
 
 be presented, began to run at the time the 
 act complained of was done, and that the 
 petition was presented in time. 
 
 ,3. That, as there was a bona fide dispute 
 on a doubtful legal question concerning 
 the vacancy of the seat; the Clerk was 
 right in not assuming to determine it by 
 issuing a writ for a new election. Sex- 
 smith V. Montgomery, 9 M. R. 17^. 
 
 6. Property . qualification of candi- 
 date — Municipal Act, R.S.M., c. 100, ». 
 51 — Qualification of mayor or councUhi' — 
 Leasehold interest. 
 
 By section 51 of The Municipal Act, 
 R.S.M., c. 100, the persons eligible for 
 election as mayors or councillors of villages 
 must be the owners respectively, at the 
 time, of the election, of freehold or lease- 
 hold, or partly freehold and partly lease- 
 hold, real estate rated in their own names 
 respectively on the last revised assessment 
 roll of the village to at least the amount 
 of f 500, over and above all charges, liens 
 and incumbrances affecting the same. 
 
 The respondent hved with his wife upon 
 a property in a village that was assessed 
 in the name of the w5f e as owner at $600. 
 His name appeared on the toU as occupant 
 or tenant of the same property, and 
 opposite his name, under the heading 
 "description and valuation," were dots. 
 His name did not otherwise appear on the 
 roU. The title to the property was in 
 the wife, as appeared, by the certificate of 
 title under The Real Property Act, which 
 also showed that it was incumbered by 
 mortgages to the extent of 8550. 
 
 Held, that the respondent had, not the 
 necessary property qualification for mayor 
 of the village. Re Morden Election, 
 Ruddell V. Garrett, 12 M. R. 563. 
 
 See Injunction IV, 3. 
 
 MUNICIPAL OFFICER. 
 
 See Garnishment, V, 6. 
 
 — Mandamus, 2, 3, 6, 7. 
 
 — ■ Municipal Elections, 4. 
 
 — Negligence, IV, 1, 2. 
 
 MUNICIPAL WEIGH SCALES. 
 
 See Municipality. 
 
743 
 
 MUNICIPALITY. 
 
 744 
 
 MUNICIPALITY. • 
 
 I. By-laws and Resolutions. 
 II. Liability fob Unauthorized 
 Acts op Officials. 
 
 III. Negligence. 
 
 IV. Repair of Roads, Streets and 
 
 Bridges. 
 V. Sale of Roads and Streets. 
 VI. Solicitor, Employment of. 
 VII. Ultra Vires By-laws and Reso- 
 lutions. 
 VIII. Miscellaneous Cases. 
 
 I. By-laws and Resolutions. 
 
 1. Approval of plaxts— Conditional ap- 
 proval — Winnipeg Charter, s. 472 — In- 
 junction. 
 
 1. Notwithstanding the provision of 
 section 472 of the 'Winnipeg Charter that 
 "the powers of the council shall be exer- 
 cised by by-law when no^ otherwise 
 authorized or provided for," the approval 
 by the city council of the construction by 
 defendants of a loop line on certain named 
 streets of the city may be given by 
 resolution. 
 
 Toronto v. Toronto Ry. Co., (1906) 12 
 O.L.R. 534, foUowed. 
 
 2. It is not a valid objection to such a 
 resolution that it was one approving a 
 report of the Board of Control even if 
 such Board had no power to deal with 
 such a matter. 
 
 3. The council had power to give an 
 approval coupled with a condition that 
 the company should also construct another 
 loop line on certain other streets, although 
 the council might be unable afterwards to 
 enforce the condition. 
 
 4. Under the law governing such con- 
 struction the approval of the detailed 
 plans by the City- Council is not required, 
 so that the making of a change in the 
 plans by the City engineer which had not 
 been approved by the council was no 
 ground for an injunction. Black v. Win- 
 nipeg Electric Ry. Co., 17 M. R. 77. 
 
 2. By-law as to repairing buildings 
 within fire limits — Ultra vires — Validor- 
 tion of by-laws by subsequent legislation — 
 Prohibition to inferior Court. 
 
 1. Under sub-sections (a) and (6) of 
 section 607 of The Municipal Act, R.S.M. 
 (1892), c. 100, as amended prior to 8th 
 May, 1899, authorizing the Council of the 
 City of Winnipeg to pass by-laws for 
 regulating the erection in specified parts 
 
 of the City of wooden buildings or addi- 
 tions thereto or alterations thereof, and 
 for pi'ohibiting the erection of buildings, 
 with th§ walls other than of brick, iron or 
 stone, within denned areas, and for regu- 
 lating the repairing or alteration of roofs 
 or external walls of existing buildings 
 within the said areas, so that they might 
 be made more nearly fire-proof, also for 
 regulating the size and strength of walls, 
 beams, joists, rafters and roofs, and their 
 supports in all buildings to be erected or 
 • repaired or added to, and for compeUirig 
 production of the plans of all buildings for 
 inspection and for enforcing the observance 
 of such regulations, the Council had no 
 power to pass a by-law requiring the sub- 
 mission of plans and specifications of 
 proposed repairs to a building inspector 
 and the obtaining of his certificate before 
 the commencement of repairs to any 
 building; and the conviction of the de- 
 fendant for breach of such by-law was 
 quashed. 
 
 2. Repairs to a building do not consti- 
 tute a re-erection thereof, and it was ultra 
 vires of the Council, under the powers 
 above set out, to enact that, if the pro- 
 posed repairs to a building should cost 
 forty per cent of its actual value, they 
 should be considered a re-erection thereof, 
 subject to the terms of the by-law; and, 
 where the owner had ma|de repairs to a 
 frame building within the first class fire 
 limits, which had been damaged by fire, 
 a rule nisi to prohibit a magistrate from 
 proceeding with a prosecution as for 
 alleged unlawful re-erection of the build- 
 ing, in breach of the said by-law, was 
 made absolute. 
 
 3. The amendment by the City Council 
 of other provisions of the same by-law, 
 under powers conferred by legislative 
 amendments of the section of the Munici- 
 pal Act referred to, made after the passing 
 of the by-law, had not the effect of re- 
 enacting the provisions objected to. 
 
 4. The effect of section 6 of The Win- 
 nipeg Charter, 1 & 2 Edw. VII., c. 77, 
 which provides that the by-laws, &c., of 
 the City, "when this Act takes effect, 
 shall be deemed . . . the by-laws . . . 
 of the City of Winnipeg, as continued 
 under or altered by this Act," was merely 
 to provide that the then existing by-laws 
 should stand as they stood before the 
 passing of the Act with only such force, 
 effect or validity as they previously had, 
 and not to declare that all such by-laws 
 were legal and valid. Rexy. _Nunn. Be 
 Rogers and Nunn, 15 M. R. 288. 
 
745 
 
 MUNICIPALITY. 
 
 746 
 
 3. For Sale of Land — Contracts of 
 municipality requiring by-laws — Estoppel 
 by cond/tict — Winnipeg Charter, 1902, c. 77, 
 ss, 387, 472— i?eoi PropeHy Act, R.S.M. 
 1902, c. 148. 
 
 1. The making of a contract for the 
 sale of land vested in the corporation is 
 not one of the jjowers which the Council 
 of the City of Winnipeg, under its charter, 
 1 & 2 Edw. VII, c. 77, can exercise by 
 resolution, as section 472 says that the 
 power of the Council shall be exercised by 
 by-law when not otherwise authorized or 
 provided for^ 
 
 WaterousY. Palmerston, (1892) 21 S.C.R. 
 556, followed. 
 
 2. The defendant City was not estopped 
 from insisting on the absolute title ac- 
 quired by it, under the Real Property Act, 
 R.S.M. 1902, c. 148, of lands formerly 
 owned by the plaintiff and purchased by 
 it at a tax sale, by reason of the facts that, 
 after the issue of the final certificate of 
 title in 1902, the City Assessor assessed the 
 land to the plaintiff, the Court of Revision 
 confirmed the assessment, the usual assess- 
 ment notice was sent to the plaintiff and 
 the tax collector sent to him the usual 
 notice and demand for the taxes of that 
 year, as these steps had all been taken by 
 the city officials in accordance with their 
 statutory duties and without any special 
 authority or instructions from the City^ 
 Council. 
 
 3. Per Howell, C. J. A. Although the 
 City Council passed a resolution authoriz- 
 ing a sale of the lands to the plaintiff for a 
 named amount, and the resolution was 
 entered in the minutes which were after- 
 wards signed by the mayor and city clerk, 
 yet there was no writing signed in such a 
 manner as to be binding under the Statute 
 of Frauds. 
 
 4. Per Mathebs, J. If the City had 
 sued the plaintiff for the taxes of 1902 
 relying on section 387 of the charter, it 
 would have been a good defence to show 
 that he was not the owner of the lands at 
 the time of the return of the assessment 
 roll and its final revision, and, therefore, 
 it could not be said that the City was assert- 
 ing two absolutely inconsistent rights 
 Ponton V. City of Winnipeg, 17 M.R. 496' 
 
 Affirmed. 41 S.C.R. 18. 
 
 4. Seal of corporation — Signature of 
 head of council or presiding officer — Terri- 
 torial limits affected by quashing by-law — 
 Municipal Act, R.S.M., c. 100, s. 336— 
 Order quashing by-law bad on its face. 
 
 1. Section 336 of The Municipal Act, 
 R.S.M., c. 100, is imperative, and an instru- 
 ment not sealed with the seal of a muni- 
 cipal corporation, or not signed by its head 
 or the person presiding at the meeting at 
 which the supposed by-law was passed, 
 is no by-law of the corporation. 
 
 2. When such alleged by-law purports 
 to be passed in accordance with the local 
 option clauses of The Liquor License Act, 
 R.S.M., c. 90, the applicant is entitled to 
 a definite order quashing it, so that the 
 council of the municipality may know 
 whether to receive license fees or not. 
 
 3. The order to quash a by-law should 
 not affect territory detached from the 
 municipality whose council originally 
 passed it, and now forming parts of new 
 municipalities which were not served with 
 notice of the apphcation. Re Vivian and 
 Rural Municipality of Whitewater, 14 
 M.R. 153. 
 
 Not followed, Houghton v. Argyle, 14 
 M.R. 526. 
 
 6. By-law taking efEect on the hap- 
 pening of some contingent event — 
 
 Meaning of "passage of the by-law" — ■ 
 Winnipeg Charter, s., 708, s-s. (cl) as re- 
 enacted by 3 & 4: Edw. VII, c. 64, s. 15,— 
 Uncertainty in by-laws — Delegation of 
 powers of Council. 
 
 Under sub-section (c) of section 708 of 
 the Winnipeg Charter, as re-enacted by 3 
 & 4 Edward VII, c. 64, s. 15, the City on 
 30th September, 1907, passed a by-law, 
 No. 4264, for diverting and closing up 
 certain streets in the City and for convey- 
 ing the same to the Canadian Northern 
 Railway Company, and determining what 
 persons or classes of persons were injurious- 
 ly affected by the closing of such streets. 
 The by-law excluded the defendants from 
 any right to compensation, but provided 
 that it was not to come into force until 
 the execution of a supplementary agree- 
 ment between the railway company and 
 the City and the due ratification of the 
 same by the council. 
 
 In July, 1908, such agreement having 
 been executed, the City passed By-law 
 No. 5050, declaring that "bv-law No. 
 4264 is hereby ratified and confirmed and 
 declared to be in force." 
 
 Within ten days after the passing of 
 By-law No. 5050, the defendants appealed 
 to a Judge of the Court of King's Bench 
 under sub-section (cl) of the same section, 
 against their exclusion from the class of 
 persons entitled to compensation as being 
 
747 
 
 MUNICIPALITY. 
 
 748 
 
 injuriously affected by the closing of the 
 streets. 
 
 Held, (1) The Council could not deter- 
 mine conclusively what persons or classes 
 of persons were injuriously affected by the 
 closing of the streets by a by-law which, 
 in its terms, was not to come into force 
 until the happening of a contingent event 
 whi0h might never happfen, and such 
 persons could not appeal from such deter- 
 mination until after the by-law was 
 brought into force by the second by-law, 
 beo'kuse they could not be injuriously 
 affected by the passage of a by-law which 
 might never come into force. 
 
 (2) The expression, "within ten days 
 after the passage of the by-law," in sub- 
 section (cl), should, under the circum- 
 stances of this case, be construed to mean 
 within ten days after the coming into force 
 of the by-law, ' because the literal con- 
 struction, would work a manifest injustice 
 by arbitrarily depriving persons injurious- 
 ly affected of all remedies. 
 
 Attorney General v. Lockwood, (1842) 
 9 M. & W. 398; Becke v. Smith, (1836) 
 2 M. & W. 195, and Schneider v. Hussey, 
 (1881) 1 Pac. Rep. 343, followed. 
 
 Ex parte Rashleigh, (1875) 2 Ch. D._ 9, 
 distinguished. 
 
 (3) The defendants, therefore, came in 
 time when they brought their appeal with- 
 in ten days after the passage of the by-law 
 bringing the by-law in question into force. 
 
 Per Richards, J.A. A by-law, which in 
 its terms provided that it should only 
 Come into force on the execution by a rail- 
 way company of a certain agreement with 
 the City, is bad for uncertainty and be- 
 cause of its delegation by the council of 
 part of its power to the railway company. 
 
 Re Cloutier, (1896) 11 M.R. 220, fol- 
 lowed. City of Winnipeg v. Brock, 20 
 M.R. 669. 
 
 Affirmed 45 S.C.R. 271. 
 
 6. Motion to quash for unreason- 
 ableness and discrimination — Prohibi- 
 tion of erection of buildings within fixed 
 distance from street line in residential 
 -locality — Removal of prohibition in favour 
 of individual owner — Status of applicant — 
 Acquiescence — Winnipeg Charter, s. 703, 
 (29). 
 
 Under paragraph (29) of section 703 
 of the Winnipeg Charter, the City passed 
 a by-law prohibiting the erection of build- 
 ings on River Avenue, a residential street, 
 within 15 feet of the street line. Subse- 
 
 quently a by-law was passed in amend- 
 ment of the former by-law and permitting 
 one Milhnan to erect a building on the 
 corner of River Avenue and an intersecting 
 business street within six feet of the street 
 line on condition that he would convey 
 the six feet and a small triangle at the 
 comer to the City. On motion to quash 
 the amending by-law. 
 
 Held, on appeal froin Prbndergast, J., 
 that the by-law was within the powers of 
 the Council and was neither unreasonable 
 nor discriminatory and that there was a 
 good and sufficient consideration given 
 to the City for passing it. 
 
 Per Prbndergast, J., in the Court ap- 
 pealed from. The motion should be de- 
 nied because it had not been made until 
 about ten months after the date of the 
 by-law attacked, during which time MiU- 
 man had erected and completed his build- 
 ing at a cost of about 180,000, and the 
 applicant had been fully cognizant of the 
 work from its inception. 
 
 In re Taber and Township of Scarborough, 
 (1861) 20 U.C.R. 549; In re Grant and' 
 Township of Puslinch, (1868) 27 U.C.R. 
 154, and In re Piatt and City of Toronto, 
 (1872) 33 U.C.R. 53, foUowed. Wood v. 
 City of Winnipeg, 21 M.R. 426. 
 
 7. By-law requiring weighing of coal 
 on municipal weigh scales — Municipal 
 Act, R.S.M. 1902, c. 116, ss. 368, 632 (i), 
 654 (/) — Ultra Vires — Restraint of trade — 
 Monopoly. v 
 
 i. Under sub-section (/) of section 654 
 of the Municipal Act, R.S.M. 1902, c. 116, 
 the council of a town may pass a by-law 
 requiring that all coal sold in the town 
 shall before delivery be weighed on the 
 pubhc weigh-scales which the town is 
 authorized by sub-section (i) of section 
 632 to establish, and that the person de- 
 hvering such coal shall, at time of delivery, 
 hand to the purchaser a certificate of the 
 true weight signed by the pubMc weigh- 
 master. The power to regulate the sale 
 of coal enables the council to make the 
 above provisions. 
 
 Dillon, sec. 390; Cooley, p. 286, and 
 Tiederrmn, par, 127, followed. 
 
 2. Such provisions cannot be regarded 
 as in restraint of trade: Dillon, sec. 390, 
 and Stokes v. New York, (1835) 14 Wend. 
 88. 
 
 3. A by-law of that kind is not in con- 
 travention of section 368 of the Act as 
 creating a monopoly in the weighing of 
 coal, being only part of the machinery for 
 
749 
 
 MUNICIPALITY. 
 
 750 
 
 the administration of the pubKc affairs of 
 the town. Re Miller and Town of Virden, 
 16 M.R. 479. 
 
 II. Liability for Unauthorized Acts 
 OF Officials. 
 
 1. Arrest made by police. 
 
 The charter of the defendants provided 
 for the appointment of a poUce force, the 
 members to be appointed by, and hold 
 of&ce during the pleasure of, a board of 
 police commissioners. The defendants pro- 
 vided the pay of the men. A mjember of 
 the force arrested the plaintiff for an al- 
 leged breach of a by-law of the defendants. 
 
 Held, In an action for assault and false 
 imprisonment, that the defendants were 
 not liable. Wishart v. City of Brandon, 4 
 M.R. 453. 
 
 2. Construction of ditch by ward 
 
 committee^Diic/i constructed along high- 
 way between two municipalities — Un- 
 auihorized work. 
 
 The provisions of the Municipal Act, 
 R.S.M., c. 100, and amending Acts, re- 
 lating to highways between adjoining 
 municipalities, require the joint action of 
 the councils of the two municipalities in 
 any work upon the .same. 
 
 The plainti]^, whose lands, situated in a 
 municipality adjoining that of defendants, 
 had been over-flowed with water and his 
 crops damaged in consequence of the negli- 
 gent construction of a ditch along the 
 highway between the two municipalities, 
 claimed damages in respect thereof. It 
 was proved that the work had been done 
 by the authority of one of the ward com- 
 mittees pf the defendants' council, but the 
 council had not passed any resolution or 
 by-law or motion providing for the f'on- 
 struction of the ditch in question, and had 
 not, in any formal manner, authorized the 
 ward committee to execute such work. 
 
 Held, that the work done was wholly 
 ultra vires of the defendants' council, and 
 that the defendants were not liable for 
 the acts of their agents complained of 
 which were wholly beyond the scope of 
 their authority. 
 
 The plaintiff reHed upon two resolutions 
 of the council authorizing the treasurer to 
 pay out moneys for ward appropriations 
 on the orders of the chairman of the ward 
 committees and upon the fact that two 
 payments on account of the work had been 
 made by the council. 
 
 Held, that this was not sufficient evi- 
 dence of the adoption of the work by the 
 
 council, so as to make the defendants 
 thereby liable, although the ditch had been 
 negUgently and improperly constructed, 
 and that the plaintiff must be non-suited . 
 Atcheson v. Rural Municipality of Portage 
 la Prairie, 10 M.R. 39. 
 
 3. Work ordered by officials. 
 
 The plaintiff contracted under seal to 
 erect for the defendants a building 1o be 
 used as a police station. The contract 
 contained a clause providing for further 
 agreements in writing, in case of any 
 change or alteration in the plans or speci- 
 fications. 
 
 The plaintiff sued for the value of cer- 
 tain work, part being alterations in the 
 building, part additional work in conec- 
 tion with the building in of a boiler for 
 heating purposes, (neither the furnishing of 
 the boiler nor its fittings being part of the 
 plaintiff's contract), and part for furnish- 
 ings for the building, such as benches in 
 the cells, lockers, raiUngs, desk and other 
 articles. 
 
 The orders for the work were given 
 partly by the chief of poMce, and partly by 
 the Ucenoe and poKce committee. The 
 city took possession and made use, by its 
 PjGBcials, of the work sued for. 
 
 Held, That the defendants were not 
 liable for any part of the work. 
 
 Oral evidence of that which, upon cross 
 examination, turns out to have been in 
 writing remains vaUd as evidence. Kil- 
 patrick v. City of Winnipeg, 4 M.R., 103. 
 
 III. Negligence. 
 
 1. Contributory Negligence— iVoJtce 
 
 of action — Winnipeg Charter, ss. 722, 728 — • 
 Remedy over against third party. 
 
 The plaintiff's claim was for damages 
 caused by falling from his bicycle into a 
 deep unguarded excavation in a lot owned 
 by the defendant Luce on the comer of a 
 public street and a lane in the City of 
 Winnipeg. He was riding down an in- 
 clined part of the highway towards and 
 close to a portion of it which 'was only 
 about 30 feet wide, and which was ob- 
 structed for half its width by a pile of build- 
 ing materials in the possession of , and main- 
 tained there by. Luce, and, observing that 
 the remainder of the roadway was at the 
 moment occupied by a team with a loaded 
 wagon, he attempted to stop by back- 
 pedaUing. But the chain then came off 
 the sprocket wheel and, being unable to 
 check his speed, he tried to turn into a lane 
 on the hither side of the obstructions. 
 
751 
 
 MUNICIPALITY. 
 
 752 
 
 His speed was too great, however, and he 
 ran into the excavation a.t the edge of the 
 lane, being seriously injured. 
 
 It appeared that the proper City officials 
 had notice of the obstructions being on the 
 street for a considerable time previously 
 and that they had requested Luce to re- 
 move them. 
 
 It was contended on behalf of the City 
 that the plaintiff had been guilty of con- 
 tributory negligence, as heiiwas aware of the 
 condition of the street and of the chance 
 that it might be wholly blocked at any 
 time, and should not have run the risk of 
 the chain shpping off whilst going down 
 the incline. He was, however, an ex- 
 perienced bicycle rider, and had used the 
 same wheel for several years without thfe 
 chain having ever come off. 
 
 Held, that he was not guilty of contri- 
 butory neghgence in the matter, and that 
 the City was hable in damages to the 
 plaintiff. 
 
 The City also set up that notice of the 
 claim had not been served on the City 
 Clerk, as required by s. 722 of the Winni- 
 peg Charter, 1 & 2 Edw. VII, c. 77. The 
 notice rehed on was a letter which the 
 plaintiff delivered personally to the Chair- 
 man of the Board of Works and which 
 contained fuU particulars of the accident 
 and of the injuries received and asked for 
 payment of $350. This letter reached the 
 City Clerk within the time required by that 
 section. 
 
 Held, that the statute was sufficiently 
 complied with to enable the plaintiff to 
 recover. " 
 
 Held, also, that the City was entitled, 
 under s. 728 of the Charter, to relief over 
 against Luce for the amount of the plain- 
 tiff's judgment and aU its costs in the 
 action. 
 
 Barnes v. Ward, (1850) 9 C.B. 392, and 
 Dalton V. Angus, (1881) 6 A.C. 829, fol- 
 lowed. Mitchell V. Winnipeg, 17 M.R. 
 166. 
 
 2. In exercising statutory powers — 
 
 Municipal Act — Powers of Municipality 
 limited to its oum territory. 
 
 No action will lie for doing that which 
 the Legislature has authorized to be done, , 
 if it be done without neghgence, although 
 it does occasion damage to anyone; but 
 an action does lie for doing that which the 
 Legislature has authorized, if it be done 
 negligently. 
 
 And, if, by a reasonable exercise of the 
 powers either given by the Statute or 
 existing at common law, the damage could 
 
 be prevented, it is, within this rule, "negh- 
 gence" not to make such reasonable exer- 
 cise of the powers. 
 
 In the absence of such negligence, a 
 party injured by the acts of a Municipal 
 Council can only resort to the arbitration 
 provided for by the Municipal Act. 
 
 In declaring against a municipahty for 
 damages to plaintiff's land arising out of 
 the construction of drainage works by 
 defendants, it' is necessary to. allege that 
 such ditch or drain was within the terri- 
 torial limits of the municipality. Atche- 
 son v. Rural Municipality of Portage la 
 Prairie, 9 M.R. 192. 
 
 3. In exercising statutory powers — 
 
 By-law — Right of action — Arbitration — 
 Pleading — Municipal Act, ss. 665, 480, 
 597. 
 
 The statement of claim alleged that the 
 defendant, by constructing in a negUgent 
 and improper manner a ditch for drainage 
 purposes, had caused the plaintiff's land to 
 be overflowed with water whereby he had 
 suffered damages, but did not aUege that 
 any by-law had been passed by the council 
 of the municipahty authorizing the con- 
 struction of such drain. It was demurred 
 to on the ground that the plaintiff's remedy 
 was confined by section 665 of the Muni- 
 cipal Act to an arbitration. 
 
 Held, that it was unnecessary to decide 
 whether that section prevents a party from 
 resorting to an action in case of damage 
 resulting in the manner alleged where 
 neghgence is charged. But as, under the 
 Municipal Act, sections 480 and 597, a 
 municipahty has no power to construct 
 drainage works except under a by-law 
 duly passed, and the statement of claim 
 did not show that there had been any 
 by-law to authorize the work in question, 
 for all that appeared the work might have 
 been done without statutory authority, 
 and the demurrer should be overruled 
 with costs. Foster v. Municipality of 
 Lansdowne, 12 M.R. 42. 
 
 4. In exercising statutory powers— 
 
 Right of action — Arbitration — Municipal 
 Act, s. 665 — Ldability for negligence of ser- 
 vant. 
 
 The plaintiff claimed damages in an 
 action against the defendant munici- 
 pahty for. injury caused to his land and 
 crops by the neghgent and wrongful con- 
 struction of a ditch by the corporation 
 in consequence of which water, diverted 
 from its natural course and collected in 
 the ditch, overflowed upon the plaintiff's 
 
753 
 
 MUNICIPALITY. 
 
 754 
 
 land. This work had been done under a 
 by-law simply authorizing the expend- 
 iture of money upon the ditch in question 
 which was dug wholly upon land under 
 the control of the municipality. 
 
 Held, that such a by-law could not 
 malie lawful an act causing damage by 
 flooding private lands; and that an action 
 will lie against a corporation for doing 
 what the Legislature has authorized, if it 
 be done negligently so as to cause damage 
 to the plaintiff, the recovery by arbitration 
 under section 665 of The Municipal Act 
 being oo'nflned to any damage necessarily 
 resulting from the exercise of such powers; 
 and it makes no difference that the cor- 
 poration exercised proper care in the se- 
 lection of its servants and agents if they 
 acted within the scope of t£eir employ- 
 ment. 
 
 Geddis v. Proprietors of Barm Reservoir, 
 (1878) 3 A.C. 430; Queen v. Selby Dam 
 Drainage Commissioners, [1892] 1 Q.B. 348; 
 Mersey Docks Trustees v. Gihhs, (1866) 
 L.R. 1 H.L. 93, and Atcheson v. Portage la 
 Prairie, (1893) 9 M.R. 192, followed. 
 
 Raleigh v. Williams, [1893] A.C. 540, 
 distinguished. Foster v. Rural Munici- 
 pality of Lansdowne.SrirM.R. 416. 
 
 IV. Repair of Roads, Stbeets and 
 Bkidqes. 
 
 1. Bridge carried away by flood — Mun- 
 icipal Act, R.S.M. 1902, c. 116, s. 667— 
 Damages, from what date — Continuing 
 cause of action — King's Bench Act, Rule 
 566 — Mandamus — Remedy by indictment 
 — Costs. 
 
 1. A private individual who suffers 
 special damages caused by the neglect of 
 a municipal council to replace a bridge 
 on a public highway that had been carried 
 away by a flood is entitled to recover for 
 such damages m an action against the 
 municipality under section 667 of the 
 Municipal Act, R.S.M. 1902, c. 116. 
 
 Iveson V. . Moore, (1700) 1 Ld. Raym. 
 495, followed. 
 
 2. A mandamus to replace the bridge 
 should not be granted in such a case, as 
 there is another adequate remedy, viz: 
 to proceed by indictment, but the refusal 
 of the mandamus should be without pre- 
 judice to the plaintiff's right so to proceed. 
 
 3. Under sub-s'ection (b) of above section 
 the plaintiff's claim for damages should be 
 limited to such as he had suffered since 
 one month prior to the service of his 
 notice of action on the municipality. 
 
 4. The cause of action being a con- 
 tinuing one,* the damages should, under 
 Rule 566 of the King's Bench Act, be 
 assessed up to the date of the delivery of 
 the judgment. 
 
 5. It is proper to bring such an action 
 in this Court, even if the damages allowed 
 should be within the jurisdiction of the 
 County Court, and the plaintiff should 
 have fuU costs. Noble v. Municipality 
 of Turtle Mountain, 15 M.R. 514. 
 
 2. Bridge breaking down — Municipal 
 Ad, R.8.M. 1902, c. 116, s. &Q7— Meaning 
 of "happening of the alleged negligence" 
 — Notice of action — Misfeasance — Expecta- 
 tion of pecuniary benefit from continuance of 
 life — R.S.M. 1902, c. 31, who maij claim 
 under. 
 
 1. Under section 667 of the Municipal 
 Act, R.S.M. 1902, c. 116, a municipaUty 
 is liable for damages caused by a heavy 
 traction engine breaking through rotten 
 timbers in the approach to a bridge on 
 one of its public highways on which work 
 had been performed and improvements 
 made by it, when such engines had, to the 
 knowledge of the officials of the munici- 
 paUty, been passing over the bridge for 
 the previous two years and no attempt 
 had been made to stop such traffic or to 
 warn those in charge of it of any danger, 
 such bridge being the strongest one across 
 the river within many miles. 
 
 Manley v. St. Helens, (1858), 2 H. & 
 N. 840, and Lucas v. Moore, (1879) 3 
 O.R. 602, followed. 
 
 2. Defendants could not be held to have 
 been guilty of negligence amounting to 
 misfeasance, so as to make them Hable in 
 damages independently of the statute, by 
 reason of having failed to stop up a spike 
 hole in one of the joists in the approach in 
 consequence of which it had rotted more 
 than the others on account of water lodg- 
 ing in the hole. 
 
 Patterson v. City of Victoria, (1897) ' 
 B.C.R. 628, distinguished. 
 
 3. The notice of action required by the 
 statute to be given to the municipaUty 
 need not be signed by the claimant per- 
 sonally or show that she was claiming in 
 her capacity of personal representative 
 of the deceased. 
 
 4. The words "happening of the alleged 
 negUgence," in the section referred to, 
 should either be construed to read, "hap- 
 pening of the injury or damages resulting 
 from the alleged negUgence," or it should 
 be held that the negligence continued to 
 "happen" up to the time that the damages 
 
755 
 
 MUNICIPALITY. 
 
 756 
 
 resulted from it, otherwise no notice of the 
 action or claim could be given, in compli- 
 ance with the statute, in any case where 
 the negligence had existed for more than 
 a month before the injury resulted from 
 it. 
 
 ' 5. Plaintiff could recover nothina; on 
 behaK of a son of deceased who, in the cir- 
 cumstances and position of his father, 
 could have had no reasonable expectation 
 of pecuniary benefit from the continuance 
 of the life, nor on behalf of a nephew or 
 an adopted' child, as they do not come 
 within the provisions of R.S.M. 1902, 
 c. 31, or any other enabling Act. Curie v. 
 Brandon, 15 M.R. 122. 
 
 3. Ice and snow on sidewalk. 
 
 The plaintiff's claim was for damages 
 for an injury sustained by falling upon 
 an icy slop^ which had formed on a side- 
 walk in the City of Winnipeg adjacent 
 to a public well supplied with a pump 
 which was daily used by a large number 
 of people. The well was one of about 
 sixty provided by the corjioration and 
 maintained at its expense, and a number 
 of men were employed by the corporation 
 whose duty was to visit the wells from 
 time to time dmng the winter and re- 
 move or reduce the mounds of ice on the 
 sidewalks and around the pumps caused 
 by the freezing of the water that dripped 
 from them or was spUled from paOs while 
 being carried away. One of these em- 
 ployees was on the spot on the very day 
 of the accident and did not consider it 
 necessary to do anything for the purpose 
 of making the place more safe for foot 
 passengers, and other employees of the 
 City whose duty it was to report unsafe 
 conditions had passed the place on the 
 same day and made no report upon it. 
 
 The trial Judge found on the evidence 
 that the ice mounds and slopes on the side- 
 walk had been caused, not from the water 
 that dripped from the pump or was spilled 
 in filling paUs there, but by the spillmg of 
 water from the pails while being carried 
 along the sidewalk or in the filling of 
 other vessels, and so were the result of 
 negligence on the part of other persons 
 and not of any faulty construction of the 
 pump or its approaches; and that the 
 place where the accident happened was 
 not shown to have been at the time more 
 unsafe than many other spots on the side- 
 walks are frequently rendered by local 
 conditions, when freezing and thawing 
 follow each other at short mtervals. 
 
 Held, (1) That the mere allowance of 
 the formation and continuance of obstruc- 
 tions or dangerous spots in the highways 
 due to accumulations of snow or ice may 
 amount to non-repair for which the corpor- 
 ation would be liable, but in every such 
 case the question to be determined is 
 whether, taking all the circumstances into 
 consideration, it is reasonable to hold that 
 the municipality should have removed 
 the danger. 
 
 City o/ Kingston v. Drennan, (1896) 27 
 S.C.R. 46, foUowed. 
 
 (2) That in the present case it would 
 not be reasonable to hold the defendants 
 liable, as there were so many such wells in 
 the City, usually placed at street crossings 
 and in constant use; and to keep the side- 
 walks near them completely free from ice 
 or roughened by chopping or sprinkling 
 some substance upon them would have 
 been well nigh impossible. Taylor v. 
 City of Winnipeg, 12 M.R. 479. 
 
 4. Liability at common law^ ' 
 
 A municipality is not, by the common 
 law, answerable in damages occasioned by • 
 defective highways or bridges. 
 
 A general statute provided that "all 
 the roads and road allowances within the 
 Province shall be held to be under the 
 jurisdiction of the municipality within the 
 limits of which such roads or road allow- 
 ances are situated, and such municipality 
 shall be charged with the maintenance of 
 the same, with such assistance as they 
 may receive from time to time from the 
 Government of the Province." 
 
 Held, That this statute did not impose 
 upon municipalities any liability for such 
 damages. WaUis v. Municipality of As- 
 siniboia, 4 M.R. 89. 
 
 6. Notice of action — Negligence — 
 Municipal Act, R.S.M. 1902, c. 116, s. 667 
 
 Under section 722 of The Winnipeg 
 ' Chaf ter, which is the same in effect as 
 section 667 of The Municipal Act, R.S.M. 
 1902, c. 116, the corporation will be liable 
 in damages for injury sustained by a 
 person in consequence of a fall caused by 
 stepping on and so breaking down a rotten 
 plank in a sidewalk laid down by the cor- 
 poration on a public highway, the said 
 sidewalk being very old and decayed 
 underneath, it being shown that the defect, 
 although not apparent, would have been 
 detected if there had been a proper and 
 adequate system of inspection employed. 
 
 The notice of the action given by the 
 plaintiff, pursuant to sub-section (h) of 
 
757 
 
 MUNICIPALITY. 
 
 758 
 
 the same section, stated that she claimed 
 from the defendants $1,000 damages with 
 respect to the matters therein set out and 
 that she would commence an action in 
 the Court of King's Bench to recover that 
 sum for injuries sustained by her through 
 the omission and default of defendants to 
 keep in repair a pubUc sidewalk on the 
 east side of Main Street between Poison 
 and Bannerman Avenues in said city. 
 The accident happened at a point be- 
 tween Poison Avenue and Atlantic Avenue 
 which is between Poison and Bannerman 
 Avenues. It was given within a month 
 from the date of the injury, biit did not 
 state such date or the nature of the injury 
 or how it had occurred, or the place more 
 specifically than as above. The trial 
 judge gave plaintiff a verdict for $3,000 
 
 Held, that the statute, which only re- 
 quires "notice of any such claim or action," 
 should receive a liberal construction, and 
 requirements, not specifically stated and 
 not necessarily implied, should not be read 
 into it, and that the notice given was suffi- 
 cient. 
 
 Curie V. Brandon, (1905) 15 M.R. 122; 
 Jones V. Bird, (1822) 5 B. & Aid. 837; 
 Martins v. UTpcher, (1842) 3 Q.B. 662, 
 and Bond v. Conmee, (1899) 16 A.R. 398, 
 follow-ed. Clarkson v. Musgrave, (1882) 
 9 Q.B.D. 386, and St. John v. Christie, 
 (1892) 21 S.C.R. 1, distinguished on the 
 ground of differences in the wording of the 
 respective statutes. 
 
 Held, also, that, as plaintiff's injuries 
 had resulted much more seriously after 
 the notice was given than she anticipated, 
 she was not precluded by the terms of the 
 notice from claiming and recovering in the 
 action a larger amount than $1,000. Iveson 
 V. Winnipeg, 16 M.R. 352. 
 
 6. Pitch-holes in winter roads — 
 
 Negligence — Objections not raised at trial — 
 Municipal Act, R.S.M., u. 100, ss. 618, 619. 
 
 Appeal from the judgment of the County 
 Court of Portage la Prairie against the 
 def^ndknts. 
 
 The plaintiff's claim was for damages 
 for injury to a horse caused by non-repair 
 of a highway by reason of the continued 
 existence of a series of deep pitch-holes 
 produced by traffic in the snow-covered 
 surface of a travelled road in the defendant 
 muaicipaUty. 
 
 There were 10 or 12 of these pitch-holes 
 in almost uninterrupted succession at 
 intervals of only a few feet, varying in 
 depth from 1 to SJ or 4 feet below the level 
 
 of the travelled snow road, and the descent 
 into them was very steep. 
 
 The evidence also showed that the depth 
 of the snow outside the one beaten trail 
 was so great that it was impossible for a 
 loaded sleigh such as the plaintiff was 
 driving to turn out so as to avoid the pitch- 
 holes, and that the defects in the road had 
 existed for a considerable time and could 
 have been remedied by a small expenditure 
 of money. 
 
 Held, Bain, J., dissenting, that, under 
 section 618 of The Municipal Act, R.S.M., 
 c. 100, the defendants were liable for the 
 damages sustained by the plaintiff. 
 
 Caswell V. St. Mary's Road Co., (1869) 
 28 U.C.R. 247, and Walker v. City of Hali- 
 fax, (1883) 16 N.S.R. 371, Cias. Dig. 175, 
 followed. 
 
 The liability of the municipality for 
 non-repair being limited by section 619 of 
 the Act to that portion of a road on which 
 work has been performed or pubhc im- 
 provements made by the municipality, 
 or which had been in some way assumed 
 by it, objection was taken on the hearing 
 of the appeal that there was no direct 
 evidence that such had been done; but 
 the County Court Judge stated that it was 
 not disputed before him that the munici- 
 pahty was bound to keep the road in 
 repair, and he found that it was a road of 
 very considerable importance leading into 
 the town of Portage la Prairie and at all 
 times much used. 
 
 Held, following Proctor v. Parker, (1899) 
 12 M.R. 529,that,by not raising the objec- 
 tion at the trial, the defence had waived 
 strict proof of the circumstances rendering 
 the municipality hable to keep the road 
 in repair. Kennedy v. Portage la Prairie, 
 12 M.R. 634. 
 
 7. Work done on part of road dis- 
 tant from place where accident oc- 
 curs — Evidence of notice to the municipality 
 of non-repair. 
 
 1. If work is performed on a public road 
 by a municipahty to faciUtate travel be- 
 tween points on both sides of the place 
 where the work is done, so as to provide 
 a completed road between such points for 
 the use of the pubhc, the municipahty is 
 hable, under section 667 of The Municipal 
 Act, R.S.M. 1902, c. 116, in case an acci- 
 dent happens by reason of non-repair of 
 the road at any place between those points, 
 although no work has been done at or 
 near that particular place. 
 
 2. When an obstruction in the shape of 
 a barbed wire fence has been allowed to 
 
759 
 
 MUNICIPALITY. 
 
 760 
 
 remain across part of a highway for more 
 ^ than three months at that season of the 
 year during which road repairs would 
 naturally be made, notice of its existence 
 should be irnputed to the municipality 
 notwithstanding the absence of direct evi- 
 dence of notice. Couch v. Municipality of 
 , Louise, 16 M.R. 656. 
 
 V. Sale op Roads and Streets. 
 
 1. By-law to sell road allowance — 
 
 Statutory notices-quashing by-law. 
 
 A rural municipality passed a by-law 
 closing up an original road allowance and 
 selling it to M. who owned the land ad- 
 joining on one side. W. owned and re- 
 sided upon the land adjoining on the other 
 side. There was another road by which 
 W. had access to his land, but it was not 
 so convenient, as it required him to travel 
 a much greater distance, in going to and 
 returning from the maiket town, and 
 other lands which he owned. Compensa- 
 tion to W. was not provided for in the 
 by-law, nor did the municipality provide 
 any other convenient road or access to 
 W's land. The piiblic notices that were 
 posted up pursuant to section 436 of The 
 Municipal Act were notices of an intention 
 to close up the road allowance, but said 
 nothing about selling it. Upon an appli- 
 cation to quash the by-law, 
 
 Held, 1. That under section 440 of 
 of The Municipal Act it is only when a 
 person would be, by the closing of the road, 
 excluded from all ingress or egress to or 
 from his land that he can demand some 
 other convenient road or way of access. 
 If there is an existing road which would 
 have satisfied the requirements of the law, 
 if provided for the use of such owner in 
 heu of the highway closed, then the case is 
 not within the section. It may not be so 
 convenient, and, if so, then it is a case for 
 compensation. 
 
 2. That it is not a condition precedent 
 to the passing of the by-law that compen- 
 sation should be given, or provided for 
 in the by-law. 
 
 3. That the objection that no notice was 
 given, pursuant to section 435 of The 
 Municipal Act, of an intention to pass a 
 by-law for selling this road allowance was 
 fatal, and the applicant, by attending at 
 the meeting of the council at which the 
 by-law was passed, and objecting, was not 
 estopped from taking exception to the 
 want of notice. 
 
 4. That, considering the extensive pow- 
 ers possessed by municipal councils, and 
 
 the danger there is of these being used 
 unwisely, if not to serve the interests of 
 private individuals, they should be held to 
 a strict comphance with the statutory 
 requirements when proceeding to exercse 
 these powers. White v. Rural Munici- 
 pality of Louise. 7 M.R. 231. 
 
 2. By-law to close street and sell 
 land — Street shown on registered plan but 
 not taken over or improved by municipality 
 — By-law passed for improper object — 
 Approval of Lieutenant Governor in Council 
 — Effect of promulgation — Municipal Act, 
 R.S.M. 1902, c. 116, ss. 425, 426, 667, 693 
 (d) and 694 (c). 
 
 1. When the owner of land has regis- 
 tered a plan of sub-division of 'it into lots 
 and showing a street and has sold lots 
 lying alongside and facing on the street, 
 he is bound by the plan and cannot, with- 
 out the consent of the purchasers, close up 
 the street and retake the land composing 
 it, and what he could not do himself the 
 council of the municipality has no right 
 to do for him by passing a by-law effecting 
 that result. 
 
 2. When it clearly appears that a by- 
 law of a municipal council has been passed 
 for an improper purpose, it should be 
 quashed as being an abuse of the powers 
 conferred on the council by the Munici- 
 pal Act. Be Morton and Township of St. 
 Thomas, (1881) 6 A.R. at p. 325, followed. 
 
 3. Under section 667 and sub— section 
 (d) of section 693 of the Municipal Act, 
 R.S.M. 1902, c. 116, the power of a council 
 to sell roads stopped up by them is re- 
 stricted to original road allowances 
 and to pubUc roads which have been 
 duly dedicated as such and over which 
 the council has estabHshed its jurisdiction, 
 and is not conferre?d in the case of a street 
 simply shown on a private plan of sub-; 
 division and which the council has not 
 improved or assumed any habihty to 
 repair. 
 
 4. The approval by the Lieutenant 
 Governor in Council, pursuant to sub- 
 section (c) of section 694 of the Municipal 
 Act, has not the effect of making vaHd a 
 by-law which is unauthorized by the Act. 
 
 5. The promulgation of a by-law, under 
 the provisions of sections 425 and 426 of 
 the Act, cannot have the effect of vahdat- 
 ing a by-law which the council has not 
 power to pass. Such promulgation simply 
 cures defects in the substance or form of 
 the by-law and in the steps leading up to 
 the passing of it. Re Knudsen and Town 
 of St. Boniface, 15 M.R. 317. 
 
761 
 
 MUNICIPALITY. 
 
 762 
 
 VI. Solicitor, Employment of. 
 
 1. Contract with municipality — No 
 
 resolution or by-law — Liability of munici- 
 pality. 
 
 Plaintiff sued a rural municipality for 
 services as a solicitor, but no resollition or 
 by-law of the Council employing him was 
 produced, nor did the Council adopt or 
 derive any benefit from his services. 
 
 HeM, that he was not entitled to recover. 
 Curran v. Rural Municipality of North 
 Norfolk, 8 M.R. 256. 
 
 2. Retainer of solicitor to bring suit 
 may be made without a by-law — 
 
 Motion to dismiss action not authorized by 
 plaintiff — Subsequent ratification when suit 
 commenced vnthout authority — Practice — 
 Municipal Act, R.S.M. 1902, c. 116, s. 362. 
 
 Under section 362 of the Municipal Act, 
 R.S.M. 1902, c. 116, which provides that 
 "the powers of the Council shall be exer- 
 cised by by-law when not otherwise 
 authorized or provided for," a, by-law is 
 not necessary to authorize the commence- 
 ment of an action, but a municipal cor- 
 poration may give such authority by reso- 
 lution under the corporate seal. 
 
 Town of Barrie et al, v. Weaymouth, 
 (1892) 15 P.R. 95; Barrie Public School 
 Board v. Town of Barrie, (1899) 19 P.R. 
 33, and Brooks v. Torquay, [1902] 1 K.B. 
 601, followed. I 
 
 Where an action has been commenced 
 without authority, a subsequent ratifica- 
 tion of the proceedings by a properly 
 executed retainer will be a sufficient ans- 
 swer to an appUcation by the defendant 
 to dismiss the action, subject to the 
 question of costs. 
 
 Qucere, per Perdue, J., whether a defend- 
 ant has any locu^ standi, under the present 
 practice, to ask for the dismissal of an 
 action on the sole ground that it has been 
 brought without the authority of the 
 plaintiff. Tovm of Emerson and W. W. 
 Unsworth v. Wright, 14 M.R. 636. 
 
 VII. Ultra Vires By-laws and Reso- 
 lutions. 
 
 1. Dairy inspection — Quashing by-law. 
 
 The City of Winnipeg, relying on 
 sections 593 and 607 of the Municipal Act 
 and section 17 of 57 Vic, c. 20, passed a 
 by-law for inspecting and regulating 
 dailies and licensing vendors of milk. 
 
 Held, that a provision requiring the 
 owners of all dairies whose milk was sold 
 in the City to submit to an inspection and 
 
 to take out a license whether their dairies 
 were in the City or not, was uUra vires 
 and illegal so far as it apphed to the ow- 
 ners of dairies who did not sell their milk 
 in the City, but to other persons, who 
 might or might not sell it there. 
 
 Held, also, that section 3 of the by-law, 
 which required applicants for licenses to 
 satisfy the health officer of the City before 
 their licenses could issue, and left it in his 
 power to decide who should have a license 
 and who should- not, was also idtra vires 
 as an illegal delegation of authority which 
 the Council itself should exercise. Be 
 Elliott and City of Winnipeg, 11 M.R. 358. 
 
 2. Dairy inspection — Quashing by-law. 
 
 The City of Wnmipeg having, in assumed 
 exercise of the powers conferred by the 
 Municipal Act, s. 599, as amended by 57 
 Vic, c 20, s. 17, 58 & 59 Vic, c. 32, s. 16, 
 and 59 Vic, c 15, s. 16, passed a by-law 
 providing for the licensing, inspecting and 
 regulating of dairies and vendors of milk 
 and for preventing the sale or use of milk 
 or other food products until comphance 
 with regulations, an apphcation was made 
 to quash it under section 385 of the Muni- 
 cipal Act. 
 
 Held, following Dillon on Municipal 
 Corporations, s. 91, and Merritt v. Toronto, 
 22 A.R. 205, that all such by-laws should 
 be construed strictly, and that any ambi- 
 guity or doutjt as to the extent of 
 powers conferred on municipalities to 
 , make by-laws is to be determined in favor 
 of the general public as against the grantee 
 of the power, especially where such by-law 
 affects the rights of Uberty or property of 
 a citizen, and that the by-law in question 
 should be quashed because some of its 
 provisions were unreasonable, and others 
 exceeded the powers conferred by the Act. 
 
 The following are the provisions de- 
 clared to be objectionable by the judg- 
 ment: — 
 
 (1) The by-law is so worded that 
 some carriers of milk from points outside 
 the city, as railway companies, might be 
 required to procure Ucenses as vendors of 
 milk, or otherwise they would be subject 
 to the penalties imposed. 
 
 (2) It provides that, in case any animal 
 is found to be affected with tubercular 
 disease, it is to be separated from all others, 
 and kept apart until it is proved by inspec- 
 tion that the animal has recovered, and 
 in the meantime the owner is prevented 
 from selling the milk from the other cows 
 in the dairy until a further inspection 
 shows that they have not contracted the 
 
763 
 
 MUNICIPALITY. 
 
 764 
 
 disease. This further' inspection is to 
 made not less than two weeks, nor more 
 than eight weeks after the first, which puts 
 it in the power of the inspector arbitrarily 
 to keep the dairy closed for eight weeks. 
 
 (3) The by-law further provides for an 
 inspection of dairies and a report as to 
 whether the regulations have bee i com- 
 plied with or not, but a license is to be 
 issued only if the Market, License and 
 Health Committee gives no contrary order 
 to the health officer, which puts it in the 
 power of that committee arbitrarily to 
 deny a license even when there is a favour- 
 able report. 
 
 (4) The by-law further provides that, in 
 no case where the regulations have not 
 been complied with, shall the health officer 
 issue a hcense, but contains a provision 
 that the Council may override all that and 
 direct a Hcense to issue, which opens a wide 
 door to favoritism, and makes the by-law 
 unequal in its provisions. 
 
 (5) The by-law imposes a special tax, 
 charging so much for licenses and a further 
 fee of fifty cents for every cow contrary 
 to the provisions of sections 333 and 334 
 of the Municipal Act. 
 
 (6) It is further provided that, if a 
 Hcensee adds any cow to his stable, he 
 must bring it to the inspector's stable to 
 be inspected, and pay a fee of fifty cents, 
 whether he intends to sell her milk or not. 
 
 (7) The by-law further provides that 
 the inspector may inspect any cows or 
 cattle in the city, whether the owner is or 
 is not selhng milk or any other food pro- 
 ducts of these cows or cattle, and may col- 
 lect from the owner a fee of fifty cents per 
 head for such inspection, which is ultra 
 vires of the Act. Re Taylor and City of 
 Winnipeg, 11 M.R. 420. 
 
 3. Dairy inspection — Municipal Act, 
 B.S.M. 1892, c. 100, s. 593, and 60 Vic, c. 
 20, s. 14. 
 
 After the decision in Re Taylor and City 
 of Winnipeg, 11 M.R. 420, the Legislature 
 by 60 Vic, c. 20, s. 14, amended s. 593 of 
 the Municipal Act, R.S.M., c. 100, by 
 giving the municipalities additional powers 
 in connection with the regulation and 
 licensing of milk vendors and inspection 
 of cows and stables, and the Council of the 
 City then passed a new by-law for the 
 same purposes as the former by-law, 
 which had been quashed. Application 
 was then made to quash the new by-law. 
 
 The following objections taken to it 
 were not sustained, and it was held that 
 
 the by-lstw was not unreasonable or ultra 
 vires in respect of any of them: 
 
 (1) That, although the Council has 
 po^er to prevent and regulate the sale of 
 milk in the city, clause 3 assumed to ref- 
 late the sale of milk outside of the city 
 limits for use in the city, and to pass regu- , 
 lations which might prevent a citizen from 
 going outside the city and purchasing 
 some milk for his own use. 
 
 (2) That the by-law would enable the 
 veterinary surgeon to delay the second 
 inspection of cows found, on a first inspec- 
 tion, to be affected by disease, and thereby 
 to injure the dairymen. 
 
 (3) That, by clause 12 of the by-law,the 
 issue of a license in a disputed case is left 
 to the discretion of a committee of the 
 Council who might exercise it in an arbi- 
 trary and unfair manner. But 
 
 Held, that the CouncU has no authority 
 to pass a by-law requiring a licensed ven- 
 dor of milk, when asked by a health officer 
 or veterinary inspector, to state where he 
 obtained the milk he has sold or is about to 
 sell, along with a provision for cancellation 
 of licenses and other penalties for an in- 
 fraction of the by-law, because the effect 
 would be that, under threat of liability to 
 a penalty for not giving the information, 
 a licensee might be compelled to make a 
 discovery which would subject him to a 
 penalty. 
 
 Held, also, that it Is ultra vires of the 
 Council to pass a by-law requiring a ven- 
 dor of milk to permit a sample or samples 
 to be taken for examination without com- 
 pensation under penalties in case of refusal. 
 Re Taylor and City of Winnipeg, 12 M.R. 
 18. 
 
 4. Delegation of powers — Evidence — 
 Directory or imperative requirements of 
 statutes. 
 
 The City of Winnipeg having, under the 
 Shops Regulation Act, R.S.M., c. 140, s. 3, 
 as amended by 57 Vict., o. 42, s. 2, passed 
 a by-law requiring boot and shoe shops to 
 close at 7 p.m., except on Saturdays and 
 on the day before any civic hoUday * * * * 
 and during the days on which the exhibi- 
 tion of the Winnipeg Industrial Exhibition 
 Association is being held, the applicant 
 was convicted of a breach thereof by a 
 magistrate, when he applied for a certiorari 
 to remove the conviction in order to get it 
 quashed. 
 
 Held, that the by-law was bad for un- 
 certainty and also ultra vires because the 
 council delegated the power of fixing cer- 
 
765 
 
 MUNICIPALITY. 
 
 766 
 
 tain of the days when the shops might 
 remain open to the Exhibition Association. 
 
 Held, also, that, although it was too 
 late to move to quash the by-law, a con- 
 viction under it might be quashed, since 
 the invalidity was apparent on the face of 
 it. 
 
 Per Tatlge, C. J., When an objection 
 is taken before a magistrate that a by-law 
 under which he is asked to convict is illegal, 
 the illegality must appear on the face of 
 the by-law, and no Evidence should be 
 received to show how it came to be passed, 
 or that there were irregularities or failures 
 to comply with statutes in and about the 
 introduction and passing of the by-law. 
 The provisions of the Act requiring a 
 petition signed by three fourths of the 
 occupiers of shops of the same kind prior 
 to the passing of the by-law, that the by- 
 law should be passed within one month 
 from the receipt of the petition, and that 
 the by-law should be published before 
 the date on which it was to take effect, 
 are directory and not imperative. Re 
 Cloutier, 11 M.R. 22j. 
 
 6. By-law as to traffic on highways. 
 
 The Legislature of Manitoba having 
 enacted, by section 593 of the Municipal 
 Act as amended by 58 Vie.,c. 32, a. 14, that 
 Rural Municipalities might pass by-laws 
 "for regulating or prohibiting the passage 
 of traction engines, threshing machines, 
 or other heavy vehicles over highways or 
 bridges iipon highways, and for providing 
 the penalty in case of the violation of the 
 provisions of such by-law," the defendants 
 passed a by-law providing that no traction 
 engine, steam engine, threshing machine, 
 or water tank should pass, or be trans- 
 ported, over any of the highways within 
 the defendant's municipality, except at 
 the sole risk of the owner of such engine, 
 machine, etc. 
 
 Held, that this was not a bona fide exer- 
 cise of the power conferred by the Act, as it 
 neither regulated nor prohibited the pass- 
 age of the engines, etc.; and that the by- 
 law was uUra vires of the Council. McMil- 
 lan V. Portage la Prairie, 11 M.R. 216. 
 
 6. Requiring pool rooms to be 
 closed on Sunday — Powers of Provincial 
 Legislatures — Objection to by-law as being 
 unreasonable, oppressive or discriminating 
 between different classes. 
 
 A municipal by-law, passed under the 
 powers conferred by sub-section (o) of 
 section 640 of The Municipal Act, R.S.M. 
 
 1902, c. 116, and providing that all licensed 
 pool rooms and billiard rooms shall be 
 closed from 8-30 p.m. of every Saturday 
 until 7 a.m. of the following Monday, 
 and from 10 p.m. of every other day until 
 6 a.m. of the next day, is not ultra^vires of 
 the municipal council on the ground that it 
 may have been intended as a means of 
 enforcing Sabbath observance to that 
 extent. Such provision is within the 
 power of regulating and governing pool 
 rooms and bilhard rooms conferred along 
 with the hcensing power. 
 
 A provision in such a by-law requiring 
 the screens or other devices for obscuring 
 the view from the outside into the pool 
 rooms to be removed during the pro- 
 hibited hours is not unreasonable or op- 
 pressive, and should not be held invalid as 
 discriminating between one class of the 
 people and other classes. Re Pisher and 
 Village of Carman, 16 M.R. 560. 
 
 7. Resolutions of council passed at 
 special meeting — By-law or resolution. 
 
 It is not within the powers of the council 
 of a municipality to provide for payment 
 of the expenses of counsel and witnesses 
 ih attending upon a Royal Commission 
 appointed, under section 431 of The 
 Municipal Act, to inquire into the financial 
 affairs of the corporation, but the council 
 might properly authorize the employment 
 of counsel and payment of other expenses 
 in opposing a Bill introduced into the 
 Legislature to abohsh the mimicipality 
 and apportion its territory among the 
 adjoining municipalities. 
 
 Resolutibns of the council making such 
 provisions had been passed at special 
 meetings, but the notices calling the meet- 
 ings did not in any way specify the busi^ 
 ness to be taken up, as required by sections 
 284 and 288 of the Act. 
 
 Held, that the resolutions must be quash- 
 ed on that ground. 
 
 Semble, that, if the council had power to 
 apply the funds of the municipality for 
 any of the purposes dealt with in the reso- 
 lutions, it should have proceeded by by- 
 law. Re Rural Municipality of Mac- 
 donald, 10 M.R. 294. 
 
 8. Resolutions of Council passed at 
 special meetings. 
 
 The Council of a MunicipaMty at the 
 close of the first meeting of the year and 
 of each meeting afterwards adjourned 
 to meet again at the call of the Reeve. 
 Subsequent meetings were held through- 
 
767 
 
 MUNICIPALITY. 
 
 768 
 
 out the year upon notices issued by direc- 
 tion of the Reeve whenever it was neces- 
 sary to call a meeting. These notices 
 did not contain any mention of the subjects 
 or matters that were to be taken into 
 consideration at the meetings. 
 
 On the application of a ratepayer to 
 quash a by-law and two resolutions of the 
 Council passed at meetings called in that 
 way, 
 
 Held,~(DvBvc, J., dissenting) that the 
 meetings in question were not regular but 
 special meetings within the meaning of 
 sections 284 and 288 of The Municipal 
 Act, and that under the latter section the 
 applicant was entitled to succeed. 
 
 Re Macdonald, 10 M.R. 294 followed. 
 Re Rural Municipality of Macdonald, 10 
 M.R. 382. 
 
 9. Wages of workmen employed on 
 work for corporations, minimum rate 
 of. 
 
 It is not ultra vires or ia itself unreason- 
 able for the Council of a municipal corpor- 
 ation to provide by resolution that con- 
 tractors on corporation works should agree 
 to pay their laborers or other workmen 
 not less than a stated minimum rate of 
 wages, and that such minimum rate , 
 should be paid to all laboring men to be 
 employed on any contracts for corporation 
 work, or on any new construction work 
 undertaken by the corporation, although 
 competent workmen might be hired at a 
 lower rate of wages. 
 
 In this case it was shown that the de- 
 fendants' Council had acted on such a 
 resolution for three years, and evidence 
 was given to show that the rate provided 
 was not more than a fair living rate of 
 wages in the Ci|;y, and that the Council 
 was actuated by the belief that it was not 
 in the interest of the City to have a num- 
 ber of its citizens employed at less than a 
 fair living wage. 
 
 No evidence was given to show that 
 defendants' Council had so acted through 
 any fraudulent or improper motive. 
 
 Held, that the matter in dispute ap- 
 peared to be a question of policy in the 
 government of the City as to the exped- 
 iency of which the ratepayers and not the 
 Court should pronounce, and that the 
 plaintiff's motion for an injunction to 
 restrain the defendants from continuing 
 to act on the resolution complained of 
 should be dismissed. Kelly v. City of 
 Winnipeg, 12 M.R. 87. 
 
 ' VIII. Miscellaneous Cases. 
 
 1. Alteration of boundaries of a muni- 
 cipality— 46 & 47 Vic, c. 66, Man— De- 
 bentures — Coupon for less than $100. 
 
 After the issue of the debenture sued on 
 in this action, the boundaries of the defend- 
 ant municipaUty were changed by the 
 Legislature adding some new townships 
 and detaching the town of Gladstone. 
 
 Held, that the effect of the statutes 44 
 Vic, c. 7, s. 4, and "46 & 47 Vic, c. 66, ss. 
 1 & 4, was such that the defendant munici- 
 pality was liable for the debenture in 
 question, notwithstanding the altered 
 boundaries. 
 
 Held, also, that plaintiff could recover 
 on a coupon for $30.00 interest on the 
 debenture, notwithstanding the provision 
 in the statute, 1881, c. 3, s. 81, against the 
 issuing of any bond, biU, note, debenture, 
 or other undertaking of a municipality for 
 less than $100. 'Gillespie v. Municipality 
 of Westbourne, 10 M.R. 656. 
 
 2. Compensation for injury to land 
 caused by exercise of municipal- 
 powers when no part of the land act- 
 ually taken — Winnipeg Charter, 1 & 2 
 Edw. VII, c. 77, ss. 708 (c), 774, 775— 
 Date from which time allowed for making 
 claim is to be computed. 
 
 Section 775 of the Winnipeg Charter, 1 
 & 2 Edw. VII, c 77, provides that every 
 claim for compensation for any damage 
 necessarily resulting to an owner of land 
 entered upon or used by the City in the 
 exercise of any of its powers, or injurioiisly 
 affected thereby (the right to which 'is 
 given by the pireceding section), shall be 
 made within one year from the date when 
 the real property was so entered upon, 
 taken or used, or when the alleged dam- 
 ages were sustained or became known to 
 the claimant. 
 
 Thp defendants' claim, however, was 
 for compensation for their land injuriiDusly 
 affected by the exercise of the powers of 
 the City under sub-section(c) of section 
 708 of the Charter, as re-enacted by s. 15 
 of c. 64 of 3 & 4 Edward VII, and had been 
 expressly recognized by a by-law of the 
 council passed under that sub-section, 
 , which by-law was expressly validated and 
 confirmed by section 23 of the last men- 
 tioned Act. 
 
 Held, that section 775 of the Charter 
 had, under the circumstances, no applica- 
 tion to the claim of the defendants, and 
 that they had all the time allowed them by 
 
769 
 
 MUNICIPALITY. 
 
 770 
 
 the general law applicable to the case for 
 making their claims. 
 
 Held, also, by Macdonax.d, J., in the 
 Court below, that, in the case of real 
 property not entered upon, taken or used 
 by the City but only injuriously affected 
 by the exercise of its powers, the year 
 allowed by section 775 for making the 
 claim for compensation counts only from 
 the date of the completion of the work pro- 
 vided for by the by-law, or from the date 
 when the damages became known to the 
 claimant if that date was later, and not 
 from the date of the commencement of the 
 work, as it would in the case of land enter- 
 ed upon, taken or used. Winnipeg v. 
 Toronto General Trusts Corporation, 20 
 M.R. 545. 
 
 3. Expropriation — Prohibition — Win- 
 nipey CliarterrSS. 783, 788, 789, 796— 4 p- 
 pointment of arbitrator. 
 
 1. Under section 796 of The Winnipeg 
 Charter, 1 & 2 Edw. VII, c. 77, the 
 appointment by the City of an arbitrator 
 to determine the compensation to be paid 
 for land sought to be expropriated must be 
 signed in the same manner as a by-law, 
 that is, it must be under thS corporate seal 
 and signed by the mayor or acting mayor 
 and the clerk or acting clerk, and it is not 
 sufficient that a regularly signed by-law 
 had been passed authorizing the mayor to 
 appoint a named person as arbitrator, and 
 that the appointment had been signed by 
 the mayor alone under the corporate seal. 
 
 2. The City Charter contains no pro- 
 vision enabUng the City to carry on arbi- 
 tration proceedings to enforce the expro- 
 priation of land, unless the amount claimed 
 by the landowner does not exceed one 
 thousand dollars, and then only in the 
 manner pointed out by section 789. 
 
 Order made to prohibit the City and an 
 arbitrator appointed by it from proceeding 
 in the matter of a, proposed arbitration to 
 determine the compensation for certain 
 lots sought to be expropriated for a 
 market site. DevUt v. Citii of Winnipeg, 
 16 M.R. 398. 
 
 4. Illegality — Injunction against carry- 
 ing out illegal contract — Ultra vires — 
 Costs — Municipal Act, R.S.M., c. 100, s. 
 396. 
 
 The City of Winnipeg having by reso- 
 lution of its council proposed to enter into 
 a contract of purchase of certain land to be 
 paid for in five yearly instalments, not- 
 withstanding the provisions of section 396 
 of The Municipal Act, R.S.M., c. 100, this 
 
 action was brought by a ratepayer and a 
 motion made for an injunction to prevent 
 the proposed purchase. 
 
 After several adjournments of the 
 motion, and before it finally came on for 
 hearing, a new arrangement was entered 
 into so far varying the original prj^position 
 that the injunction was not pressed for on 
 the, argument, and the only question for 
 decision was as to the disposition of the 
 cojts. 
 
 Held, following Hoole v. The Great 
 Western Railway Co., (1867) L.R. 3 Ch. 
 262, that a suit for an injunction was 
 proper in such a case and that the defend- 
 ants should pay the costs. It is not neces- 
 sary that such a suit should be brought in 
 the name q£ the Attorney-General. 
 
 Smith V. Raleigh, (1882) 3 O.R. 405, and 
 Wallace v. Orangemlle, (ISSi) 5 O.R. 37, 
 followed. ShrirfCpton v. City of Winnipeg, 
 13 M.R. 211. 
 
 6. Quashing by-law — "Judge,'' per- 
 sona designata^R.S.M.lS92, c. 100, .■!. 385. 
 
 Section 258 of The Municipal Act, 1890, 
 (R.S.M., c. 100, s. 385), provides that: 
 "In case a resident of a municipaUty, or 
 any other person interested in a by-law, 
 order or resolution of the council thereof, 
 applies to a Judge of the Court of Queen's 
 Bench sitting in Chambers, ***** 
 the Judge, after at least ten days' service 
 on thj corporation of a summons, or rule 
 to show cause in this behalf, may quash 
 the by-law," &c. 
 
 Held, that the term "Judge" in the 
 statute is persona designata, and only the 
 Judge who issued the rule or summons can 
 hear the application on its return. Doyle 
 V. Dufferin, 8 M.R. 294. 
 
 6. "Municipal" taxes, whether in- 
 clude school taxes — Tax exemption by- 
 law — Assessment Act, R.S.M. 1892, c. 101, 
 s. 135—57 Vic. (M ), c. 21, s. 3. 
 
 The City of Winnipeg having levied 
 school taxes upon defendants' property 
 for the years 1890-1894, the defendants 
 resisted an action at law for the amount 
 relying on the terms of a by-law of the City 
 passed in 1881, by which it was enacted 
 that all property of the defendants then or 
 thereafter to be owned by them for rail- 
 way purposes within the City should be 
 exempt forever from all municipal taxes, 
 rates, levies and assessments of every 
 nature and kind. 
 
 Held, that school taxes are not included 
 in the term "municipal taxes," and that 
 under section 135 of The Assessment Act, 
 
771 
 
 MUTUAL INSURANCE. 
 
 772 
 
 R.S.M., c. 101, as amended by 57 Vic, c. 
 21, s. 3, the plaintiffs had a right to sue for 
 them, being merely constituted by the 
 Legisla);ure as the agents through whom 
 the school corporation levies the amounts 
 they require for education purposes. 
 Winnipeg v. C.P.B., 12 M.R. 581. 
 
 Reversed, 30 S.C.R. 558, where it was 
 
 Held, that the exemption included 
 school taxes." 
 
 The by-law also provided for the issue of 
 debentures to the company, and by an Act 
 of the Legislature, 46 & 47 Vic, c 64, s. 6, 
 it was provided that "by-law 148 to auth- 
 orize the issUe of debentures granting by 
 way of bonus to the C.P.R. Co. the sum 
 of $200,000 in consideration of certain 
 undertakings on the part of tlie said com- 
 pany, and by-law 195 amending by-law 
 No. 148 and extending the time for the 
 completion of the undertakings" * * * 
 "be and the same are hereby declared 
 legal and binding and valid. * .* *"' 
 
 Held, also, that, notwithstanding the 
 description of the by-law in the Act was 
 confined to the portion relating to the issue 
 of debentures, the whole by-law, including 
 the exemption from taxation, was vali- 
 dated. 
 
 C.P.R. v. City of Winnipeg, 30 S.C.R. 
 558. 
 
 7. Use of streets by electric light com- 
 pany after expiration of time limited 
 
 — Injunction — Order to remove poles and 
 wires — Estoppel. 
 
 The defendant Company had acquired 
 the rights and business of a company 
 which had in 1891 secured the right to 
 erect poles and wires, in the streets of the 
 Town of Selkirk and to carry on the busi- 
 ness of supplying electric light and power 
 in the Town for a period of ten years. 
 
 After the expiration of that period and 
 until the year 1909, the defendant Com- 
 pany and its predecessors in title continued 
 the business and erected from time to time 
 new poles and wires in the streets without 
 procuring any extension of the franchise, 
 but also without any action being taken 
 by the Town to prevent the carrying on of 
 the business. 
 
 Held, that the Town was not estopped 
 from passing a by-law in 1909 revoking and 
 terminating the rights and privileges prev- 
 iously granted and then exercised by the 
 defendant Company and requiring the 
 immediate removal of all their poles and 
 wires from the streets, and was entitled 
 to a declaration that the defendant Com- 
 
 pany had no right any longer to maintain 
 its system, an injunction to restrain it from 
 maintaining the same or erecting poles or 
 wires or transmitting electricity within the 
 Town, and an order requiring the Com- 
 pany to remove their poles and equipment 
 from the streets of the Town. 
 
 Held, also, that the Attorney General 
 was not a necessary party to the action. 
 
 Saugeen v. Church Society, (1858) 6 Gr. 
 538, BxidFenelon v. Victoria By. Co., (1881) 
 29 Gr. 4, followed. Town of Selkirk v. 
 Selkirk ElectricLight Co., 20 M.R. 461 . ' 
 
 See Appeal from County Coitrt, V, 1. 
 — • Company, IV, 14. 
 
 — Constitutional Law, 16. 
 
 cobporation, 2, 3. 
 
 — Evidence, 3. 
 
 — Expropriation op Land, 1. 
 — ■ Garnishment, V, 6. 
 
 — Highway, 1. 
 
 — Local Option By-law, I, 1. 
 
 — Mandamus, 3, 4. 
 
 — Mechanic's Lien, VII, 1. 
 
 — Negligence, IV. 
 
 — Nuisance, 1, 3. 
 
 — Public Health Act. 
 
 — Public Parks Act. 
 — ■ Railways, XI, 1. 
 
 — Real Property Limitation Act. 8. 
 
 — Receiver. 
 
 — Sale of Land for Taxes, III, 3; VI, 
 
 4; VII, 1; VIII, 1,2; X, 1, 5, 8. 
 — • Street Railway. 
 
 — Summary Judgment, II, 3. 
 
 — Taxation, 3; 
 
 MURDER. 
 
 See Criminal Law, XVII, 3. 
 
 MUTUAL INSURANCE. 
 
 1. Assessment of premium notes — 
 
 Discount for prompt payment — Mutual 
 Hail Insurance Act, R.S.M., c. 106, s. 35. 
 
 Action to recover the amount of an 
 assessment on a premium note given by 
 defendant for an insurance against loss by 
 hail. 
 
 Section 35 of The Mutual Insurance 
 Act, R.S.M., c. 106, under which the plain- 
 tiff company was incorporated, provides 
 that the assessments upon premium notes 
 
773 
 
 NAVIGABLE RIVERS. 
 
 774 
 
 or undertakings shall always be in pro- 
 portion to the amounts of such notes or 
 undertakings. 
 
 In making the assessment of five per 
 cent, upon the amount of each poUcy, the 
 directors added a proviso that all members 
 and policyholders who should pay the full 
 amount of the assessment on or before 1st 
 November, 1899, should be entitled to and 
 should receive a discount of 25 per cent, 
 upon the amount of such assessment. 
 
 Held, that the company had no power 
 to allow a discount for, or to impose penal- 
 ies for default in, prompt payment, and, 
 being a mutual company, the directors 
 must strictly observe the requirements of 
 the Act and preserve equality amongst the 
 members in assessing them; and that the 
 effect of the resolution was really to assess 
 75 per cent, of five per cent, upon those 
 who should pay before a certain date and 
 the full five per cent, upon all others, and 
 that the assessment w£is therefore void 
 under section 35 of the Act. Manitoba 
 Farmers' Mutual Hail Ins. Co. v. Lindsay, 
 13 M.R. 352. 
 
 2. Assessment of premium notes — 
 
 Mutual Hail Insurance Act, B.S.M., c. 
 106, s. 27 — Wittpdrawal from merribership — 
 Presumption of continuance of policy after 
 first year — Impossibility of performance of 
 condition — Evidence . 
 
 In an action by a company incorporated 
 under The Mutual Hail Insurance Act 
 R.S.M., c. 106, to recover the amount of 
 an assessment imposed by resolution of the 
 directors upon one of its members for the 
 second crop season after the issue of the 
 policy, it IS incumbent on the company 
 to show that by the terms of the policy the 
 person called on to pay the assessment is 
 still a member of the company; and, if no 
 evidence is given to show what the terras 
 of the pohcy were in regard to the period 
 covered by it, the action should be dis- 
 missed. 
 
 If a member of such company is entitled 
 to withdraw from membership upon cer- 
 tain conditions, including the surrender 
 of the policy issued to him, he cannot exer- 
 cise such right without surrendering the 
 policy, although the loss of it has rendered 
 it impossible for him to perform that con- 
 dition. 
 
 Croockewitt v. Fletcher, 1 H. & N. 893, 
 and Cutter v. Powell, 6 T.R. 320, followed. 
 Manitoba Farmer's Mutual Hail Ins. Co 
 V. Fisher, 14 M.R. 157. 
 
 NAVIGABLE RIVERS, 
 
 1. Obstruction to navigation — Lia- 
 bility of Bridge Company. 
 
 The defendants by their charter wer 
 empowered to erect a toU-bridge over the 
 Red River and it required that the bridge 
 should be provided with a draw or swing 
 so constructed as to aUow sufficient space, 
 not less than 80 feet, for the passage of 
 boats, rafts, etc. After the bridge had 
 been constructed the two ends were 
 carried away, leaving the swing portion 
 however uninjured. For the purpose of a 
 temporary bridge pending repairs, piles 
 were driven in the bed of the river, but no 
 obstruction was placed under the swing. 
 The plaintiff's raft in descending the river 
 was driven by the current against the 
 pUes, broken and lost. 
 
 ffeWjThat the public had no right to 
 use any other space than that provided for 
 by the charter. 
 
 2. That the Bridge Company were en- 
 titled to erect a temporary bridge and for 
 that purpose to drive piles. 
 
 3. Where both parties have equal rights 
 in a navigable river, it must be shown, in 
 order to maintain an action, that the de- 
 fendant has exercised his rights in such a 
 manner as to unreasonably impede or de^ay 
 the plaintiff. Bolston v. Red River Bridge 
 Co., 1 M. R. 235. 
 
 2. Obstructions — Reasonable use. 
 
 A declaration alleged that the plaintiffs 
 were owners of steamboats accustomed to 
 navigate the Red River; that the Red 
 River was a navigable river; that there 
 was no other route for the plaintiffs' 
 boats; that defendants, whilst the plain- 
 tiffs were so navigating, "unlawfully, 
 wrongfully and injuriously blocked up ajid 
 obstructed the said river with logs and 
 timber and thereby obstructed, impeded, 
 hindered and prevented the plaintiffs 
 from navigating v^he said river with 
 their said boats, and continued the 
 said obstruction for a lotag space of 
 time, whereby during all that time 
 the plaintiffs were hindered and ob- 
 structed from navigating the said river;" 
 and alleged special damage. 
 
 Held, bad upon demurrer. 
 
 North West Navigation Co. v. Walker, 
 3 M. R. 25. 
 
 See 4 M.R. 406 and 5 M.R. 37. 
 
 3. Obstructions — Reasonable use — 
 Negligence. 
 
 After the judgment upon the demurrer 
 as reported, 3 M.R. 25 supra, the plain- 
 
775 
 
 NEGATION OP STATUTORY EXCEPTIONS. 
 
 776 
 
 tiffs amended their declaration, alleging, 
 in addition, in effect, that the defendant, 
 using the river for the purpose of floating 
 a large quantity of logs down it, so negli- 
 gently and improperly floated the logs as 
 to cause injury to the plaintiffs, owners of 
 steamboats and barges, who were also at 
 the time lawfully using the river for the 
 purpose of navigating their steamboats 
 and barges. 
 
 The defendants again demurred. 
 
 Held, declaration as amended good. 
 
 North West Navigation Co. v. Walker, 4 
 M. R. 406. 
 
 Affirmed, 5 M.R. 37. 
 
 See Constitutional Law, 1. 
 — Injunction, I, 4, 5. 
 
 NEGATION OF STATUTORY 
 EXCEPTIONS. 
 
 See Cbiminal Law, XVII, 13. 
 
 NEGLIGENCE. 
 
 I. Contributory Negligence. 
 
 II. Fellow Servants' Negligence. 
 
 III. Fires. 
 
 IV. Liability or Municipalities. 
 V. Railway Companies. 
 
 VI. Street Railway Cases. 
 VII. Miscellaneous Cases. 
 
 I. Contributory Negligence. 
 
 1. Evidence. 
 
 The plaintiff, a contractor for construct- 
 ing and repairing roofs, came to the de- 
 fendants' premises on their invitation to 
 examine the roof and give an estimate of 
 the cost of certain repairs to it. 
 
 There was a cupola on the .roof from 
 which it could be examined. This cupola 
 was reached by a ladder going up through 
 a hole in the roof. It had two windows 
 and was well lighted. There was also 
 another hole in the floor of the cupola 
 which was there for the purpose of furnish- 
 ing light to the floor below and was un- 
 guarded. The plaintiff in broad daylight 
 ascended to the cupola, accompanied by 
 defendants' foreman, for the purpose of 
 examining the roof and, after looking 
 through one of the windows, he stepped 
 backwards and fell through the last 
 
 mentioned hole to the floor below and was 
 injured. 
 
 Held, that there was no evidence of 
 negligence on defendants' part to go to the 
 jury, and that plaintiff was properly 
 non-suited. 
 
 Johnson v. Ramherg, (1892) 51 N.W. 
 Rep. 1043, followed. 
 
 Indermaur v. Davies, (1865) L.R. 1 C.P. 
 274, distinguished. 
 
 Held, also, that, as the danger was 
 obvious, there was no duty on. the part of 
 defendants' foreman, although he was 
 present, to warn plaintiff of it. Fonseca 
 V. Lake of the Woods Milling Co., 15 
 M.R. 413. 
 
 2. Findings of jury — Damages for 
 personal injury — Que^stions to be submitted 
 to jury — New trial. 
 
 In an action for damages for personal 
 injury caused by a car of the defendants, 
 the jury found that defendants' negligence 
 was the cause of the accident, but also 
 that the plaintiff might, by the exercise 
 of reasonable care, have avoided the acci- 
 dent. There was evidence suflBcient to 
 justify both these findings. 
 
 The trial Judge dismissed the action, 
 following London Street Railway Co. v. 
 Brovm, (1901) 31 S.C.R. 642. 
 
 On appeal, the Court ordered a new trial 
 on the ground that "the jury's finding 
 that the plaintiff might have avoided the 
 accident by the exercise of reasonable care 
 was not sufl[icient without their saying 
 in what respect he failed to exercise 
 reasonable care, as the Court was unable 
 to determine from the jury's findings 
 whether the plaintiff was in law guilty of 
 contributory negligence or not. 
 
 The Court suggested that the proper 
 course for the trial Judge to take in such 
 a case would be to submit to the jury 
 two questions such as, 1. Was the 
 plaintiff guilty of negligence ? 2. If yes, 
 what was this act of negligence ? and 
 that it would probably be well to add 
 a third question : Whose negligence reaUy 
 caused the accident ? Shrondra v. Winni'^ 
 peg Elec. Ry. Co., 21 M.R. 622. 
 
 3. New trial for misdirection to 
 
 iuT!S— Railway Act, R.S.C. 1906, c. 37, 
 s. 288 — Dviy of company to pack frogs. 
 
 Contributory negUgence may be a 
 defence to an action for damages suffered 
 in consequence of a breach of a statutory 
 dijty. 
 
777 
 
 NEGLIGENCE. 
 
 778 
 
 Groves v. Wimbourne, [1898] 2 Q.B. 419, 
 and Beven on Negligence, pp. 633, 634, 
 643, and the cases there cited, followed. 
 
 In an action for damages for injuries 
 auffered_ by the plaintiff in conseqjience 
 of putting his foot in a frog which it 
 was alleged had not been properly packed 
 as required by section 288 of the Railway 
 Act, R.S.C. 1906, c. 37, the trial Judge 
 charged the jury that, if the frog was 
 unpacked, the Company would be liable, 
 whether the plaintiff was guilty of con- 
 tributory negligence or not. 
 
 Held, that this was a misdirection, and 
 that, notwithstaoading the question of 
 contributory negligence was submitted 
 to the jury and answered in plaintiff's 
 favor, there should be a new trial. 
 
 Bray v. Ford, [1896] A.C. at p. 49, and 
 Lmcas v. Moore, (1878) 3 A.R. at p. 614, 
 followed. Street v. C.P.R., 18 M.R. 334. 
 
 4. Volenti non fit injuria. 
 
 The deceased and a number of other 
 purchasers of sand and gravel from a 
 pit owned and operated by the defend- 
 ants were loading sand in an excavation 
 underneath the frozen crust two feet 
 thick. Ten or fifteen minutes before 
 the accident a man, employed by the 
 defendants for that purpose warned all 
 those working in the pit that the crust 
 was cracking. The others withdrew in 
 time, but the deceased thought he could 
 complete his loading before the crust 
 caved in, took the risk and was killed 
 in consequence of the crust falling upon 
 him. 
 
 Held, that, although it was the de- 
 fendants' duty to break down the crust 
 ds soon as it became dangerous to their 
 customers, yet the maxim " volenti non 
 fit injuria " applied in this case, and the 
 defendants were not liable in damages 
 for the death of the deceased. Roy v. 
 Henderson, 18 M.R. 234. 
 
 6. Voluntarily incurring risk — Re- 
 moteness of damages. 
 
 Defendant was the owner of a threshing 
 machine and a portable steam engine 
 and hired . from the plaintiff a team of 
 horses with a driver for use in moving 
 the engine about and in drawing straw 
 and grain during the work of threshing. 
 , While threshing for a certain farmer, 
 sparks from the engine set fire to a stack 
 of grain and, the separator being thereby 
 placed in danger, the plaintiff's driver 
 attached his horses to it for the purpose 
 of hauling it into a place of safety ; but 
 
 the fire spread so rapidly and unex- 
 pectedly before the separator could be 
 moved or the horses detached that they 
 were severely burned and had to be 
 killed. 
 
 The County Court Judge, who tried 
 the case without a jury, found that 
 the fire had been caused by negligence on 
 the part of the defendant's servants, 
 also that the horses had been attached 
 to the separator either in obedience to 
 a call from the defendant's foreman 
 or under his personal supervision, and 
 that there was no negligence on the part 
 of the plaintiff's driver. 
 
 Held, on appeal, 
 
 1. That the evidence fully warranted 
 the finding of negligence and, unless the 
 plaintiff's driver was guilty of contri- 
 butory negligence, the defendant was 
 responsible for the loss of the horses. 
 
 2. That the driver was not guilty of 
 contributory negUgence in exposing the 
 horses to danger, as it was not obvious 
 and he had acted either on the orders 
 of the defendant's foreman or in obed- 
 ience to a natural impulse to try to save 
 the defendant's property. 
 
 Connell v. Prescott, (1892) 20 A.R. 49, 
 22 S.C.R. 147, foUowed. 
 
 Thorn V. James, 14 M.R. 373. 
 
 II. Fellow Servants ' Negligence. 
 
 1. Master and servant — Defect in 
 system — Accident to workman. 
 
 The plaintiff, a structural iron worker 
 in the employ of the defendants, while 
 working under the direction of an ex- 
 perienced foreman believed by the de- 
 fendants to be a competent man, was 
 severely injured by the falling of a steel 
 column set vertically upon a cement 
 pier to which it was fastened by split 
 anchor bolts through the flanges and 
 holes drilled in the , pier. Plaintiff had 
 been senti to the top of the column to 
 assist in connecting it with a, horizontal 
 steel beam at a height of about 25 feet. 
 The case was tried without a jury by a 
 judge who was unable to find whether 
 the faUing of the column had been caused 
 by the faulty construction of the pier 
 or by defective filling in of the holes with 
 cement after the bolts had been driven 
 in or by the dropping out of the wedges 
 in the lower ends of the bolts, so that 
 the bolts did not spread oXLt at the bottom, 
 or by sending the' plaintiff to the top of 
 the column before the cement had suffi- 
 cient' time to harden properly. 
 
779. 
 
 NEGLIGENCE. 
 
 780 
 
 It was only as to the last of these 
 suggested causes that there was any 
 evidence to show knowledge on the part 
 of the defendants that the work was 
 being done improperly and, if the fall 
 of the column was from any of the other 
 causes, the negligence was that of the 
 foreman only. 
 
 Held, that, as the plaintiff's claim 
 was based wholly upon a common law 
 right of action, the rule of common em- 
 ployment applied, ajid he was bound to 
 show that the injury had resulted from 
 some negligent practice on the part of 
 the foreman of which the defendants 
 were aware and that, as he had failed 
 to show this, he could not recover. 
 
 Bartonshill Coal Co. v. Reid, (1858) 
 3 Macq. 290, followed. 
 
 Smith V. Baker, [1891] A.C. 325, Sword 
 V. Cameron, 1 Sc. Sess. Cas. 2nd Ser. 493, 
 Eind Patersons v. Wallace, [1854] 1 Macq. 
 748, distinguishfed. Lawrence v. Kelly, 
 19 M.R. 359. 
 
 2. Common employment— LiabiiKi?/ 
 
 of employer for injury to workman caused 
 by negligence of foreman — Workmen's Com- 
 pensation for Injuries Ait, R.S.M. 1902, 
 c. 178, s. 3 (6) — Duty of , persons who 
 cause others to handle specially dangerous 
 things. 
 
 The death of the deceased was caused 
 by carelessness and ignorance in the 
 handling of dynamite by the deceased 
 and a fellow workman named Anderson 
 employed by the roadmaster of the 
 defendants to look after the work. An- 
 derson and White were not competent 
 persons to be so employed, and the 
 roadmaster was aware that they were 
 not. 
 
 Held, 1. The plaintiffs could not re- 
 cover under Lord Campbell's Act, because 
 the roadmaster was a fellow workman 
 with the deceased. 
 
 2. The plaintiffs were entitled to re- 
 cover damages under the Workmen's 
 Compensation for Injuries Act— R.S.M. 
 1902, c. 178 — because, by the jury's find- 
 ■ ings, the death wa;s caused by reason 
 'of the negligence of a person in the ser- 
 %ice of the employer who had superin- 
 tendence entrusted to him, whilst in 
 the exercise of such superintendence : 
 paragraph (6) of section 3. 
 
 Dominion Natural Gas Co. v. Collins, 
 [1909] A.C. 440, 79 L.J.P.C. 16, followed 
 as to the duty of those who cause others 
 to handle specially dangerous things. 
 White V. C.N.B., 20 M.R. 57. 
 
 3. Master and servant — Injury to 
 employee caused by negligence of fellow 
 employee intrusted with superintendence — 
 lAability of employer at common law — 
 Workmen's Compensation for Injuries Act, 
 R.S.M. 1902, c. 178, s. 3.— Railway Act, 
 R.S.C. 1906, c. 37, s. 306— Limitation of 
 time for action. 
 
 The plaintiff's claim was for injuries 
 sustained by the explosion of some ' 
 dynamite while he was- thawing it for 
 use in blasting out hard pan in a gravel 
 pit under the superintendence of one 
 Campbell, a roadmaster in defendant's 
 employ. In answer to questions, the 
 jury at the trial found that the plaintiff 
 was ignorant of the material he was 
 using, that Campbell had not given him 
 proper instructions, that the injury had 
 been caused by the negligence of the 
 defendant company, that such negli- 
 gence consisted in not employing a com- 
 petent person to superintend the work 
 and in not furnishing proper apphances 
 and storage for explosives, and that 
 the defendant company had not used 
 reasonable and proper care and caution 
 in the selection of the person to super- 
 intend the work. 
 
 Held, Howell, C.J.M. dissenting, 
 the evidence at most showed that, on 
 the occasion in question, Campbell might 
 have been negUgent in his superintend- 
 ence of the work, that there was no proof 
 of his incompetency otherwise or that 
 the defendant had been negUgent in 
 appointing him, or in furnishing proper 
 apphances, the onus of proving which 
 was on the plaintiff, and, therefore, the 
 plaintiff could not recover at conunon 
 law, but was entitled, under The 
 Workmen's Compensation for Injuries 
 Act, R.S.M. 1902, c. 178, s. 3, to the 
 amount alternatively fixed by the jury 
 under section 6 of that Act. 
 
 Smith V. Howard, (1870) 22 L.T. 130 ; 
 Young v. Hoffmann, [1907] 2 K.B. 650, 
 and Cribb v. Kynoch, [1907] 2 K.B. 
 548, foUowed. 
 
 Per Howell, C.J.M. There was evi- 
 dence to submit to the jury on all the 
 questions answered by them and the 
 verdict for damages at common law 
 should not be disturbed. 
 
 Held, also, by all the Judges, that the 
 damages had not been " sustained by 
 reason of the construction or operation 
 of the railway," and therefore the plaintiff 
 was not barred by section 306 of the 
 Railway Act, R.S.C. 1906, c. 37, from 
 bringing his action after the lapse of 
 
781 
 
 NEGLIGENCE. 
 
 782 
 
 one year. Anderson v. C.N.R., 21 M.R. 
 121. 
 
 Appeal of defendants to the Supreme 
 Court of Canada dismissed and cross 
 appeal of plaintiff allowed, the Court 
 holding that the plaintiff could recover at 
 Common Law, because, according to the 
 finding of the jury, which was amply sus- 
 tained by the evidence, the defendants 
 had been guilty of negligence in not em- 
 ploying a competent person to superintend 
 the work, and in not furnishing proper 
 appliances and storage for explosives. 45 
 S.C.R. 355. 
 
 Appeal of defendants to Privy Council 
 dismissed. 
 
 IIL FlHES. 
 
 1. Prairie fire, damages for starting'. 
 A person who startg a fire on his own 
 
 property for purposes of husbandry, 
 although not bound at all hazards to 
 "prevent the spread of fire to his neighbor's 
 property, is yet bound to exercise caution 
 and care proportionate to the risk of 
 fire spreading and doing damage ; and 
 whatever falls short of taking every 
 precaution that is reasonably possible 
 under the circumstances, to prevent 
 the spread of the fire, will be held to be 
 neghgenoe — for which the person will 
 be made liable in damages. Furlong 
 V. Carroll, 7 A.R. 145, foUowed. 
 
 A Judge in appeal will seldom reverse 
 the finding of the trial Judge on any 
 question of disputed facts — but he may 
 differ from him in the inference to be 
 drawn from the facts that are really not 
 in dispute, and, thus differing, the ap- 
 pellant is entitled to the benefit of his 
 opinion. Booth v. Moffatt, 11 M.R. 25. 
 
 2. Threshing Operations — Escape of 
 sparks from engine — Condition of ^park 
 arrester — Assumption of risk. 
 
 The defendants brought their threshing 
 machine to the plaintiff's farm to thresh 
 her crop, which was stacked in 18 stacks 
 near her farm buildings. There was 
 a strong wind, but the machine was set 
 going near the stacks, and sparks from 
 the engine set fire to the stacks and 
 consumed them. In an action for neg- 
 ligence, it was contended that the plaintiff 
 had assumed the risk of fire. 
 
 Held, that, if the plaintiff assumed 
 any risk, it was no other than that oc- 
 casioned by the location of the engine, 
 and that all that could be urged against 
 
 her in this respect was that she could 
 not now be heard to say that the smoke 
 was blowing upon the stacks, or that 
 it was too windy to thresh ; and the 
 defendants were not, by reason of the 
 assumption by the plaintiff of any such 
 risk, relieved of their obligation to use 
 such care as was requisite in the cir- 
 cumstances. The circumstances required 
 a high degree of care ; and, upon the 
 evidence, due care was not taken in 
 the adjusting of the spark arrester pro- 
 vided with the engine, so that it was 
 of little or no use in preventing the 
 escape of sparks ; and this amounted to 
 actionable neghgence on the part of 
 the defendants. Fawcett v. Ferguson, 13 
 W.L.R., 572. 
 
 3. Fire on vessel — Absence of precau- 
 tions against fire spreading — Dangerous 
 conditions in furnace room — Failure to 
 warn passengers to escape — Res ipsa 
 loquitur. 
 
 In the absence of direct evidence as to 
 the cause of a fire which destroyed the de- 
 fendants' steamer while lying at her dock, 
 and in consequence of which the plaintiff 
 suffered • severe personal injury and loss, 
 proof of the existence of dangerous con- 
 ditions in the furnace room, where it was 
 probable the fire had. started, of the ab- 
 sence of means to put out an incipient 
 fire, that when the fire was first noticed it 
 had gained such headwajy that the plain- 
 tiff could only escape by jumping into the 
 lake, and that there was either no watch- 
 man on duty or, if on duty, he neglected 
 to give any warning to the passengers to 
 escape, so that some of them were burned 
 to death in their rooms, is sufficient to 
 warrant a finding of negUgenoe on the 
 part of the defendants and a verdict for 
 the plaintiff for substantial damages. 
 
 The doct' ine of res ipsa loquitur is ap- 
 plicable in this case, following Smith v. 
 Baker, [1891] A.C. 335, and Quebec, &c.. 
 By. Co. V. Julien, (1906) 37 S.C.R. 632. 
 
 Isbister v. Dominion Fish Co., 19 M.R. 
 430. 
 
 Affirmed, 43 S.C.R. 637. 
 
 IV. Liability of Municipalities. 
 
 1. For unsafe condition of polling 
 
 hootii-^Agency of corporation officer. 
 In submitting money by-laws to a vote 
 of the electors under section 486 of the 
 Winnipeg Charter, 1 & 2 Edw. VII, c. 77, 
 the City Clerk, acting as returning officer. 
 
783 
 
 NEGLIGENCE. 
 
 784 
 
 should be deemed to have acted as the 
 agent of the City, and an elector who 
 enters the polling booth to vote on the . 
 by-laws and there receives injuries caused 
 by defects in the'apai-tment provided for 
 marking ballots, the poUing booth havipg 
 been appointed by the council in the by- 
 laws, is entitled to recover damages from 
 the City for such injuries in an action for 
 negUgence, and it makes no difference 
 that the elector is at the same time voting 
 ^at a municipal election for mayor and 
 aldermen. 
 
 Mersey Docks Triistees v. Gibbs, (1866) 
 L.R. 1 H.L. at p. 110, and McSmiey v. 
 Si. John, (1881) 6 S.C.R. 531, foUowed. 
 
 Per Howell, C.J.A. If the plaintiff 
 had been injured simply because of the 
 neglect of some official in preparing 
 booths for the election of mayor and alder- 
 men, the official would have been acting 
 in a public capacity and the law of respon- 
 deat super or wovild not apply so as to 
 make the City liable : Wishart v. Brandon, 
 (1887) 4 M.R. 453; McCleave v. Moncton, 
 (1902) 32 S.C.R. 106. Garbutfv. City of 
 Winnipeg, 18 M.R. 345. 
 
 2. For negligence of employee of 
 water-works depaxtment — Agency of 
 servant of corporation. 
 
 A municipal corporation authorized by 
 the Legislature to establish and manage a 
 system of wate'-works, but not bound by 
 law to do so, will, if it does so, be liable for 
 injuries caused by the negUgence of the 
 servants employed by it therein while in 
 th# performance of their duties. 
 
 Hesketh v. Toronto, (1898) 25 A.R. 449, 
 and GarUiit v. Winnipeg, (1909) 18 M.R. 
 345, foUowed. 
 
 It is actionable negUgence if an em- 
 ployee of the waterworks department of a 
 city, having opened the trap door in the 
 floor of a kitchen for the purpose of read- 
 ing the water meter in the .basement, 
 leaves the trap door open on going away, 
 whereby an occupant of the house is in- 
 jured by faUing through the open trap 
 door. Shaw v. City of Winnipeg, 19 M.R. 
 234. 
 
 3. For non-repair of sidewalk — 
 
 Municipal Act, R.S.M. 1902, c. 116, s. 
 667 — Winnipeg Charter, s. Til. 
 
 The plaintiff was injured in consequence 
 of stepping on the end of a loose plank in a 
 comparatively new sidewalk and so being 
 thrown down. There was evidence that 
 the plank had been loose for two or three 
 weeks before the accident, but none to 
 
 show that any of the City's servants or 
 officials had knowledge of it, and many 
 persons, including an inspector of side- 
 walks in employ of the City, had walked 
 over it without noticing that there was 
 any defect there. 
 
 Held, that the defendants were not 
 liable, as negUgence on their part was not 
 proved. 
 
 Ivesan v. Winnipeg, (1906) 16 M.R. 352, 
 distinguished. 
 
 Forrest v. City of Winnipeg, 18 M.R. 
 440. 
 
 4. For non-repair of sidewalks — 
 
 Municipal Act, R.S.M. 1902, c. 116, s. 667 
 — Winnipeg Charter, s. 722. 
 
 Under section 667 of the Municipal Act, 
 R.S.M. 1902, c. 116, or under section 722 
 of the Winnipeg Charter, 1 & 2 Edw. VII, 
 c. 77, a municipaUty is not liable for the 
 consequences of an- accident caused by 
 the want of repair of a sidewalk unless 
 negUgence on its part is shown. 
 
 The plaintiff was injured by the tilting 
 up of a loose plank in a sidewalk only ten 
 years old which had been regularly inspec- 
 ted by an officer of the City "without the 
 discovery of the defect, and no notice of 
 the defect had been brought home to the 
 City in any way. It appeared that the 
 plank had got loose by the breaking of the 
 nails and not by reason of age or decay of 
 the wood. 
 
 Held, that the defendants were not 
 liable. - ' 
 
 Davies v. City of Winnipeg, 19 M.R. 744. 
 
 V. Railway Companies. 
 
 1. Burden of proof — Master and ser- 
 vant — Precautions against accidents — Con- 
 tributory negligence. 
 
 Deceased was employed by defendants 
 as a switchman in the station yards. 
 In discharging his duties his foot caught in 
 a "frog" and while held fast he was run 
 over and killed. The frog had been 
 "blocked," but the blocking had worn 
 down to some extent. 
 
 At the trial of an action by widow and 
 children, the presiding Judge at the close 
 of the plaintiffs' case held that there was 
 no evidence to go to the jury. Plaintiffs' 
 counsel decUned to take a non-suit or to 
 permit leave to be reserved to enter a non- 
 suit in Term. The Judge then told the 
 jury to bring in a verdict for defendants, 
 and aUowed no addresses by counsel. 
 The jury found a verdict for the plaintiff. 
 
785 
 
 NEGLIGENCE. 
 
 786 
 
 Upon a motion in Term to set aside the 
 verdict, 
 
 Held, 1. That neither the trial Judge nor 
 "the Court could enter a non-suit against 
 the plaintiffs' desire. 
 
 2. That the verdict would not necess- 
 arily be set aside, but would not be allowed 
 to stand if the trial Judge was plainly and 
 certainly right in point of law. 
 
 3. That, in the absence of evidence that 
 the system of blocking was defective or 
 that the blocking of this particular frog 
 was imperfect, and there being evidence 
 that the Company employed proper and 
 competent workmen to keep the frogs in 
 repair, there was no case for the jury. 
 
 4. The onus of proving the incompet- 
 tenoy of the workmen was on the plaintiffs. 
 
 5. It was for the plaintiffs to prove 
 that the deceased was ignorant of the 
 •dangerous character of the frog and that 
 the defendants were aware of it. 
 
 RajoUe v. C.P.R., 5 M.R. 365. 
 
 2. Contributory negligence — Volenti 
 non fit injuria — Evidence to go to the jury^ 
 — Non-suit — New trial — Workmen's Com- 
 pensation for Injuries Act, R.S.M. 1902, c. 
 178. 
 
 At the trial before a jury of an action 
 by a switchman to recover damages 
 against a railway company for injuries 
 alleged to have been cauped to him while 
 engaged in the execution of his duty under 
 the orders of his foreman, through 
 negligence in the operation of a train 
 by other servants of the company 
 and because there was not sufficient room 
 between the different tracks in the rail- 
 way yard to enable the plaintiff to carry 
 on his work safely, the defences of con- 
 tributory ne.ligence and volenti non fii 
 injuria are properly for the jury and, 
 when there was some evidence that the 
 beU had not been rung or the whistle 
 sounded on the train which struck the 
 plaintiff and to show that the " lay-out " 
 of the yard was defective, a verdict 
 entered for the defendants by direction 
 of the trial Judge should be set aside 
 and a new trial granted. 
 
 Toronto Railway Co. v. King, (1908) 
 A.C. 260, and Higley v. City of Winnipeg, 
 (1910) 20 M.R. 22, followed. 
 
 Wood V. C.P.R., 20 M.R. 92. 
 
 Reversed. Decision of Perdue, J. A., 
 directing a verdict to be entered for 
 defendants, restored, 47 S.C.R. 403. 
 
 Leave to appeal to Privy Council 
 refused, 45 S.C.R. 7. 
 
 3. Contributory negligence —Deo*;! 
 
 of person run over on railway track through 
 negligence of crew of engine — Railway 
 Act, 1903 (D), s. 224. 
 
 The plaintiff's husband, while in the 
 actual discharge of his duty as section 
 foreman on the defendants' railway ex- 
 amining the track, was struck by a yard 
 engine running baclyvards. No lookout 
 was on the tail board or rear of the en- 
 gine and no signal of any kind was given 
 to warn the deceased of the approach 
 of the engine. 
 
 Held, that there was ample evidence 
 to support the findings of the jury that 
 the deceased came to his death in con- 
 sequence of the negligence of the en- 
 gine crew in neither blowing the whistle, 
 ringing the bell nor keeping a proper 
 lookout, and that the deceased could 
 not, by the exercise of reasonable care 
 under the circumstances, have avoided 
 the accident, and that the appeal from 
 the verdict in favor of the plaintiff should 
 be dismissed. 
 
 Although the deceased, if he had 
 looked round, would have seen the ap- 
 proaching engine and stepped out of 
 the way, yet he was engaged at the time 
 in the discharge of a duty of an absorb- 
 ing character which would naturally take 
 his whole attention and, under the cir- ' 
 cumstances, a jury might properly infer 
 that there was no absence of reasonable 
 care on the part of the deceased. More- 
 over', even if the deceased had been guilty 
 of negligence, the defendants would 
 still be liable if the engine crew could, 
 by the exercise of reasonable care, have 
 avoided the accident. 
 
 Coyle V. G. N. Ry., (1887) L. R. 20 Ir. 
 409 ; The Bemina, (1887), 12 P. D. 89; 
 Kelly V. Union Ry. & T. Co., (1888) 
 8 S. W. R. 20; Canada R. Co. v. Jackson, 
 (1890) 17 S. C. R. 316, and London 
 &c. Co. V. ■ Lake Erie &c. Ry. Co., (1906) 
 7 O. W. R. 571. foUowed. 
 
 The omission of a Common Law duty 
 is actionable negligence equally with 
 the omission of a statutory duty, and 
 the Common Law requires the defend- 
 ants' servants, when running through 
 the yard, to take the obvious precaution 
 of watching for workmen lawfully on 
 the track and giving them timely warn- 
 ing: Canada Atlantic Ry. Co. Y. Henderson, 
 (1899) 29 S. C. R. 632. 
 
 Held, also, that the jury would have 
 been justified if they had drawn in- 
 ferences unfavorable to the defence 
 
787 
 
 NEGLIGENCE. 
 
 788 
 
 from the fact that neither the engineer 
 nor the &erhan who were in charge of 
 the engine was called to give, evidence 
 for the defence : Green v. Toronto By. 
 Co., (1895) 26 O. R. 326. 
 
 The accident occured within twenty 
 feet of a public highway crossing, but, 
 
 Qu(Bre, whether section 224 of the 
 Railway Act, 1903 (D), requiring that 
 the whistle should be sounded when 
 approaching a highway crossing and 
 that the bell should be continuously 
 rung until the highway is crossed, can 
 be invoked on behalf of any persons 
 except those using the highway crossing. 
 Wallman v. C.P.R., 16 M.R. 82. 
 
 4. Defective apparatus— Coste—^^OT- 
 dence — Railway Act, B.S.C. 1906, c. 37, s. 
 264 (c) — Brakeman injured whilst going 
 between ends of momrlg cars to uncouple. 
 
 The plaintiff, a brakeraan on duty in 
 the defendant's employ, was injured in 
 an attempt to uncouple a number of 
 cars from an engine, the train being in 
 motion. There was evidehce that the 
 lever on the engine tender failed to work 
 properly, that there was no lever on the 
 end of the car next the tender, and that 
 the plaintiff, in order to uncouple, had 
 to reach in between the ends of the cars 
 in an effort to puU out the coupling pin. 
 In so ^ doing he either tripped or was 
 knocked down and had an arm cut off 
 by the wheels of the tender. 
 
 Held, that, in view of the require- 
 ment of sub-section (c) of section 264 of 
 the Railway Act, R.S.C. 1906, c. 37, that 
 all cars should be equipped with appar- 
 atus which shall prevent the necessity 
 of brakemen going in between the ends 
 of the cars to uncouple, the plaintiff 
 had made out a prima facie case of neg- 
 ligence, and that the non-suit entered 
 at the trial should be set aside, and a 
 new trial granted. 
 
 Costs of the former trial and of the 
 appeal to be costs to the plaintiff in any 
 event of the cause. 
 
 The trial Judge had made an order 
 that, if a new trial should be granted by 
 the Court of Appeal, then, in the event 
 of either of the plaintiff's witnesses 
 being out of the country, he should have 
 the right to read the evidence such 
 witness had given at the trial on the 
 case coming up for trial again, and the 
 Court ordered this provision to be em- 
 bodied in the judgment. Scott v. C.P.R., 
 19 M.R. 29. 
 
 5. Defective apparatus — Railway Act, 
 R.S.C. 1906, c. 37, s. 2Q4^ Brakeman 
 injured whilst going between ends of moving 
 cars to uncouple. 
 
 The plaintiff, a brakeman on duty in 
 the defendants' employ, was injured 
 in an attempt to uncouple a number of 
 cars from an engine, the train moving 
 slowly biackward. There was evidence 
 that the lever on the engine tender 
 failed to lift the pin ; that there was no 
 lever on the end of the car next the 
 tender, and that the plaintiff, in order 
 to uncouple, had to reach in between 
 the ends of the cars in an effort to pull 
 out the cofipling pin. In so doing he 
 either tripped or was knocked down and 
 had an arm cut off by the wheels of the 
 tender. 
 
 Held, that, in view of the requil'ement 
 in sub-sec. (c.) of s. 264 of the Railway 
 Act, R.S.C. 1906, c. 37, that all cars 
 should be equipped with apparatus 
 which should prevent the necessity of 
 brakemen going in between the ends 
 of the cars to uncouple, the plaintiff 
 had made out a prima facie case of .neg- 
 Ugence and the verdict of the jury in 
 his favor should not be interfered with. 
 Scott V. C.P.B., 19 M.R. 165. 
 
 VI. Street Railway Cases. 
 
 1. Accident resulting from contact 
 of electric wires. 
 
 Per DuBUC, C. J. A street railway 
 company is not gJuSlty of negligence in 
 failing to take steps to prevent telephone 
 wirfes crossing above its troUey wire from 
 coming in contact, if broken, with the 
 trolley wire, unless it be at some place 
 known to be specially dangerous : Albany 
 V. Watervliet & Co. (1874) 76 Hun. 136. 
 
 Per Mathers, J. Such failure by a 
 street railway company is evidence of 
 negligence to go to the jury. The escape 
 of electricity from wires suspended over 
 streets through any other wires that 
 may come in contact with them must 
 be prevented so far as it can be done by 
 the exercise of reasonable care and 
 diligence, and the defendants should have 
 put up guards such as were shown to 
 be in use very generally in the United 
 States and England to prevent such 
 accidents. 
 
 Boyal ElectHc Co. v. Heve, (1902) 
 32 S.C.R. 462; McKay v. Southern Bell 
 Telephone Co., (1896) 19 Sou. R. 695, 
 andBtocfc v. Milwaukee, (1895) 61 N.W.R. 
 1101, followed. 
 
789 
 
 NEGLIGENCE. 
 
 790 
 
 The Court being equally divided, 
 the appeal from the County Court jury's 
 verdict in favour of the plaintiff was 
 dismissed. Hinman v. Winnipeg Elec. 
 St. Ry. Co., 16 M.R. 16. 
 
 2. Frightening horse9> 
 
 The plaintiff's claim was for damages 
 for an injury to herself arising from the 
 alleged negligence of the defendants. 
 She was sitting in a sleigh with a team 
 of horses attached standing at the side 
 of the road, when another team of horses 
 with their driver and a wagon were 
 coming off a bridge near by just as a 
 car of the defendants was approaching 
 in an opposite direction, and at a high 
 rate of speed as was alleged. This 
 latter team showed signs of terror, but 
 the motorman driving the car did not 
 slacken speed, and the frightened team, 
 as soon as it got clear of the bridge and 
 past the car, got beyond the control of 
 the driver and ran into the plaintiff's 
 team, with the result that she was thrown 
 out and injured. The jury rendered a 
 verdict for the plaintiff. 
 
 Held, that there was sufficient evi- 
 dence, if the jury believed it, to warrant 
 theu- verdict, and if their verdict was 
 right on the evidence the negligence of 
 the motor-man in not slackening speed 
 or stopping when he saw, or should have 
 seen, the frightened team was the direct 
 cause of the injury to the plaintiff ; and 
 that the verdict should not be disturbed. 
 
 Although a street railway company 
 may be permitted by its charter to run 
 its cars on the public streets at high 
 rates of speed, it is not, therefore, re- 
 lieved from the duty of exercising proper 
 care to prevent accidents. lAnes v. 
 Winnipeg Ehc. St. Ry. Co., 11 M.R. 77. 
 
 3. Liability for injury to person 
 risking bis life to save that of another. 
 
 A statement of claim alleging, in 
 effect, that a child about two years of 
 age had fallen on the track of the de- 
 fendants' street railway on a public 
 street in the City ; that one of the de- 
 fendants' cars was approaching the 
 child at a high rate of speed, and that, 
 owing to the negligence of the motor- 
 man in charge of the car in not stopping 
 it, the child's life was endangered 
 without negligence on her part ; that 
 the plaintiff, observing this, necessarily 
 rushed in front of the car in an 
 attempt to save the child, and that. 
 
 owing to the motorman's negligence in 
 not stopping the car or reducing its speed, 
 he was struck and injured by the car, 
 discloses a good cause of action. 
 
 Eckert v. LoTig Island Railroad Co., 
 (1871) 43 N.Y. 502, followed. 
 
 Anderson v. Northern Railway Co., 
 (1876) 25 U.C.C.P. 301, distinguished. 
 Seymour v. Winnipeg Elec. Ry. Co., 19 
 M.R. 412. 
 
 4. Motorman abandoning his post — 
 
 Accident caused by negligence of servant 
 of defendants — Common carriers — Duty to. 
 carry passengers safely. 
 
 While the plaintiff was being con- 
 veyed as a passenger on a car of the de- 
 fendants, he was injured in consequence 
 of the car bein'g run into from behind 
 by another car on the same track. The 
 motorman and conductor of the other 
 car had, contrary to the express rules 
 of the company, exchanged places, and 
 the conductor in operating the car, 
 either through negligence or incom- 
 petence, allowed the colhsion to take 
 place. , 
 
 Held, that the negligence of the motor- 
 man in abandoning his post to the con- 
 ductor was the effective cause of the 
 accident, and that the defendants were 
 hable in damages for the injury to the 
 plaintiff, although the conductor, whose 
 act was the immediate cause of the 
 accident, was not acting within the 
 scope of his emplosmaent at the time. 
 
 Englehart v. Farrant, [1897] 1 Q.B. 
 240, foUowed. 
 
 Gwilliam v. Twist, [1895] 2 Q.B. 84 ; 
 Beard v. London, [1900] 2 Q.B. 530 ; 
 Harris v. Fiat, (1907) 23 T.L.R. 504, 
 distinguished. 
 
 Held, also, per Pbrdtje, J.A., that, 
 in order to make the defendants as 
 carriers of passengers by the railway 
 liable to the plaintiff, it was enough 
 to show that the negligence or omission 
 which caused the accident was that of 
 the defendants' servants then in actual 
 charge of the car. 
 
 Wright v. Midland Ry. Co., (1873) 
 L.R. 8 Ex. 137 ; Thomas v. Rhymney 
 Ry. Co., (1871) L.R. 6 Q.B. 266, and 
 Taylor v. Manchester etc., Ry. Co., [1895] 
 1 Q.B. 134, followed. 
 
 Vance v. G.T.P. Ry. Co., (1910) 17 
 O.W.R. 1000, distinguished. HiU v. Win- 
 nipeg Elec. Ry. Co., 21 M.R. 442. 
 
 Appeal to Supreme Court dismissed, 
 46 S.C.R. 654. 
 
791 
 
 NEGLIGENCE. 
 
 792 
 
 5. Passenger alighting from car — 
 
 Contributory negligence. 
 
 The plaintiff was a passenger on a 
 crowded car of the defendants going west- 
 wards along Portage Avenue, in the City 
 of Winnipeg. Being near the front end of 
 the car when it stopped at the street where 
 he wished to aUght, he made his way past 
 a number of people in the passage and in 
 the front vestibule to the steps at that ehd, 
 on which another man was standing, and 
 stepped off the car in the direction of the 
 parallel track of the railway. Almost 
 instantaneously upon alighting, he was 
 struck by another car of the defendants 
 proceeding eastwards on the other track, 
 knocked down and very seriously injured. 
 
 The distances between the sides of two 
 cars, when passing one another on the' two 
 tracks, was 44 inches,^ and the height of the 
 lowest step of the car from the grdund was 
 154 inches. 
 
 There was no rule of the Company pro- 
 hibiting passengers frorn alighting at the 
 front entrance of cars, but a rule of the 
 Company required motormen, when ap- 
 proaching another car on that Avenue, 
 to slacken speed and ring the gong contin- 
 uously until the car had been passed. , 
 
 It was the custom of the company to 
 permit passengers to alight at the front 
 entrance. 
 
 The trial Judge found as facts that the 
 motorman on the eastbound par did not 
 sensibly slacken his speed or ring his gong 
 as he approached the other car. 
 
 The plaintiff was not aware of the ap- 
 proachmg car until it struck him. 
 
 Held, (1) That the motorman on the 
 car by which the plaintiff was struck was 
 guilty of negligence, rendering the defend- 
 ants liable in damages for the injury done 
 to plaintiff. 
 
 (2) The plaintiff had not been guilty of 
 such contributory negligence as to prevent 
 his recovery of damages, as he had a right 
 to expect that, as far as the acts of the 
 defendants' servants were concerned, he 
 might aUght in safety and would have a 
 reasonable time after .alighting to look 
 about so as to guard himself against injury 
 from other cars of the defendants, but was 
 not given that time. 
 
 Oldright v. G.T. Ry. Co., (1895) 22 A.R. 
 286, and Chicago M. & St. P. Ry. Co. v. 
 Lowell, (1894) 151 U.S.R 209, followed. 
 
 (3) There is no binding authority for 
 the proposition that, from the moment a 
 passenger's foot touches the ground, a 
 street railways' liability for injuries to him 
 by their other cars ceases. Statements to 
 
 that effect in some judgments cited are 
 merely obiter dicta. Bell v. Winnipeg Elec. 
 St. Ry. Co., 15 M.R.-338. 
 
 Affirmed, 37 S.C.R. 515. 
 
 6. Wheel guards — Duty of Company to 
 put on wheel guards — Damages — New trial. 
 
 1. It is negligence in a company operat- 
 ing electric cars on the streets of' a 
 city not to have such guards for the 
 front wheels as will prevent persons 
 falling on the track from being run 
 over, and the company will be hable 
 in damages to, any person injured 
 in consequence of such negligence, unless 
 there is sufficient contributory negligence 
 on the part of such persons to constitute 
 a defence. 
 
 2. No such contributory negligence 
 could be attributed to a ciuld under six 
 years old. 
 
 3. A verdict for $8,000 damages in such 
 a case, where one of the child's legs was cut 
 off, is not so excessive as to warrant the 
 Court in ordering a new trial. WaU v. 
 Winnipeg Eke. Ry. Co., 18 M.R. 134. 
 
 Affirmed, 41 S.C.R. 431. 
 
 VII. MiscELLANEotrs Cases. 
 
 1. Horses running a,wa,y— Extraordin- 
 ary occurrence — Liability of owner of horses 
 breaking loose, and injuring plaintiff on 
 highway. 
 
 The owner of a team of horses, which 
 he had left tied by a reasonably strong 
 halter and rope to a post in the street, will 
 not be hable for negUgence if the horses, 
 being frightened by some extraordinary 
 occurrence, break the fastenings, run away 
 and injure a traveller on the highway. 
 
 Moore v. Crossland, 6 'W.L.R. 199. 
 
 2. Infant — Liability of father for infant's 
 tort — Possession as evidence of title as . 
 against a wrong doer. 
 
 A father is not hable for negligence in 
 allowing his fourteen year old son to go 
 out alone with a gun to shoot game, if the 
 boy has been carefully trained in the use 
 of a gun and ordinarily exercises great care 
 in handling it; but the son will be liable 
 in damages for the consequences of care- 
 lessness in firing the gun so as to start a ■ 
 prairie fire which destroys the plaintiff's 
 property. 
 
 Part of the plaintiff's claim was for the 
 loss of a stable on land which he had 
 agreed to sell. The stable had been placed 
 on 'the land by the purchaser, but the 
 
793 
 
 NEGLIGENCE. 
 
 794 
 
 plaintiff had taken possession of the stable 
 and was using it at the time of the fire. 
 
 Held, that the plaintiff's possession of 
 the stable was evidence of title as against 
 a wrong doer and that the defendant 
 could not rely on the purchaser's rights 
 as against the plaintiff, but was liable to 
 the plaintiff for the value of the stable as 
 well as of the other property destroyed by 
 the fire. 
 
 Jefferies v. G.W.R., (1856) 5 E & B, 802; 
 The Winkfield, [1902] P. 42, and Glenwood 
 V. Phillips, 11904] A.C. 405, followed. 
 Turner v. Snider, 16 M.R. 79. 
 
 3. Landlord and Tenant — Liability of 
 employer for negligence of employee. 
 
 Plaintiff was tenant of a store owned by 
 defendant McNichol, who had agreed to 
 heat it sufficiently. The heating being 
 found deficient, the landlord's agent em- 
 ployed the other defendants, a firm of 
 plumbers, to put in an additional steam 
 radiator. Before quitting work for the 
 day, the connections not being complete, 
 the plumbers' workmen put a valve on the 
 steam pipe in the plaintiff's store and 
 closed it, so that, when the steam should 
 be turned on, it should not escape into the 
 store. When the steam was turned on at 
 the request of the caretaker of the building, 
 it was found that there was an escape of 
 steam at a defective radiator in the room 
 above and it had to be turned off again. 
 At the request of the caretaker the work- 
 men returned in the evening, made good 
 the defect in the room above, and again 
 turned on the steam. The plaintiif's 
 store was then locked up and nothing was 
 done to ascertain whether the valve was 
 still closed. It had, however, been opened 
 in the meantime, by whom the evidence 
 did not show. The result was that, during 
 the night, the plaintiff's goods were greatly 
 damaged by the escaping steam. 
 
 Held, (1) That it was no part of the 
 plumbers' work to turn the steam on after 
 putting in the additional radiator. That 
 would be a matter to be attended to by the 
 landlord or those acting for him and, as 
 between the plaintiff and the landlord, it 
 was theduty of the person in charge of the 
 heating to, make sure that the valve in 
 the plaintiff's store was closed before the 
 steam was tiurned on the second time, and 
 his failure to take such precaution was • 
 negUgence on the part of the caretaker 
 such as to make the landlord hable for the 
 damages that resulted. 
 
 (2) It was not necessary for the decision 
 of the case to determine who had opened 
 
 the valve again, as the acts of the plum- 
 bers, in turning on and turning off the 
 steam and again turning it on, should be 
 regarded as those of the caretaker who was 
 present assenting to and assisting in the 
 _ performance of them, and who was in 
 charge of the apparatus. 
 
 (3) The defendant plumbers were not 
 responsible for the neghgence of their 
 employee, if he was guUty of any, as his 
 actions in turning on tjhe steam in the 
 evening at the request of the caretaker 
 were clearly outside the scope of his em- 
 ployment. 
 
 (4) The landlord was not responsible 
 for such part of the injury to the plaintiff's 
 goods as was caused by the leakage of 
 water from the room above. Malcolm v. 
 McNichol, 16 M.R. 411. 
 
 Appeal of defendant McNichol dismissed. 
 Judgment afiirmed with variation, declar- 
 ing the plumbers jointly liable with the 
 landlord, 39 S.C.R. 265. 
 
 Leave to appeal to Privy Council re- 
 fused. 
 
 4. Motor vehicle — Duty of driver with 
 regard to pedestrians — Damages — Costs — 
 Recovery of amount within jurisdiction of 
 the County Court — King's Bench Act, Ride 
 933. 
 
 The plaintiff, when on his way to board 
 a street car which had stopped at a switch 
 point at a place where it was usual for 
 passengers to get on the cars, was knocked 
 down and injured by a motor vehicle driven 
 by the defendant's chauffeur past the 
 street car. It appeared that the chauffeur 
 was driving at a moderate rate of speed 
 on the proper side of the road behind a 
 team going in the same direction, that the 
 team when just opposite the street car 
 turned to the right to avoid hitting the 
 plaintiff, that the chauffeur then proceeded, 
 thinking the road was clear, when sudden- 
 ly the plaintiff appeared before him on the 
 pavement, that he blew his horn and 
 applied the brakes and did all he could 
 to avoid hitting, the plaintiff, but that the 
 latter appeared confused, took a step back- 
 ward and was struck, although not run 
 over. 
 
 Held, that the circumstances and the 
 situation were such as to require the chauf- 
 feur to exercise a more than ordinary de- 
 gree of care for the safety of pedestrians 
 and to anticipate the possibiUty of being 
 confronted at any time in such a situation 
 by pedestrians who- for the moment lose 
 control of their mental faculties, and are 
 
795 
 
 NEGLIGENCE. 
 
 796 
 
 overcome by a suddeil panic, although at 
 other times of healthy and rational intel- 
 lect, and that under the circumstances 
 the chauffeur was guilty of such negUgenoe 
 that the defendants were liable for the 
 damages suffered by the plaintiff. 
 
 The trial Judge assessed the plaintiff's 
 damages at $344, an amount within the 
 jurisdiction of the County Court; but, 
 being satisfied that the plaintiff's sohcitor 
 honestly believed that the plaintiff would 
 recover an amount beyond that jurisdic- 
 tion, while giving him no costs, he gave the 
 sta,tutory certificate, under Rule 933 of 
 the King's Bench Act, to prevent the de- 
 fendant setting off any costs. Rose v. 
 Clark, 21 M.R. 635. 
 
 6. Right of action by employee 
 against contractor and sub -con- 
 tractor — Recovery of judgment , in action 
 against one a bar to subsequent action 
 against the other — lAaJbilitj of several tort 
 feasors. 
 
 When a contractor employs a sub-con- 
 tractor to do work of a dangerous char- 
 acter which is liable to result in damage 
 to third persons it due precautions are not 
 taken, if the sub-contractor is guilty of 
 negligence in the performance of the work, 
 such negligence not being casual or colla- 
 teral to such performance, and one of his 
 workmen is injured in consequence of such 
 negligence, the workman has the same 
 right of action against the principal con- 
 tractor as he has against the sub-contrac- 
 tor, and he may sue either, or both. 
 
 Dalton V. Angus, 6 A.C., per Lord Black- 
 burn at p. 829, and Penny v. Wimbledon, 
 [1899] 2 Q.B. 72, followed. 
 
 But, if the workman chooses to bring 
 his action against the sub-contractor alone, 
 the recovery of judgment in such action 
 is a bar to a subsequent action against the 
 contractor for the same cause of action. 
 
 Longmore v. Mc Arthur, 19 M.R. 641. 
 
 Affirmed, 43 S.C.R. 640. 
 
 6. Liabilityof stable-keeper for injury 
 to horse kept in his stable — Contract — 
 Estoppel. ^ 
 
 Plaintiff's mare, kept for him in an open 
 stall in defendant's stable, was kicked by 
 a horse, kept in the adjoining open stall, ■ 
 which had broken his halter shank during 
 the night and got loose. This horse had 
 got loose in the stable on several previous 
 occasions, and on one of such occasions 
 the plaiiitiff's mare had received a slight 
 
 injury to one of her legs which defendant 
 supposed had been caused by the same 
 horse. 
 
 In the opinion of the majority of the 
 Court, it was not proved that the horse 
 was a vicious one, or that' he had ever 
 broken a halter shank before, or that the 
 shank he broke on that night was not as 
 strong as halter shanks usually are. Plain- 
 tiff's mare shortly afterwards died as the 
 result of the kicking. 
 
 Held, that defendant was not liable for 
 the loss. 
 
 Per Perdtte, J., dissenting. The evi- 
 dence showed that the horse in question 
 had a propensity for breaking loose at 
 night, that the defendant knew this and 
 that he had reason to believe, and did 
 believe, that the same horse had, on a 
 previous occasion, when loose, inflicted 
 some injury on the plaintiff's mare. De- 
 fendant was therefore bound to exercise 
 greater care than he had and should be 
 held liable for the loss. 
 
 After the first injury, the plaintiff's son, 
 in the absence of his father, asked defend- 
 ant to put his- father's mare in a box stall, 
 saying that his father on his return would 
 pay the extra charge. Defendant did so, 
 but, a day or two before the injury, put the 
 mare back into the same open stall with- 
 out the knowledge of the plaintiff or his 
 son. 
 
 Held, that there was no contract bind- 
 ing on defendant to keep the mare in the 
 box stall. 
 
 Per Perdue, J'., dissenting. The de- 
 fendant, after acting upon the arrange- 
 ment he had made as to the box stall, could 
 not dispute the boy's authority to act for 
 his father and should be held liable for the 
 damages caused by his breach of that 
 arrangement. Templeton v. Waddington, 
 14 M:R. 495. 
 
 7. Undertaking of mortgage com- 
 pany to keep up insurance on mort- 
 gaged property — Undertaking not under 
 seal — Setting off unliquidated damages 
 against debt — I^ight of set-off as against 
 assignee of debt — Notice of assignment — 
 King's Bench Act, s. 39. 
 
 1. If a mortgage company through its 
 manager undertakes with the mortgagor 
 ' to keep alive an insurance on the mort- 
 gaged property, and takes steps towards 
 carrying out such undertaking, but fails 
 to carry it out, it is guilty of such negli- 
 gence as to render it liable in damages to 
 the mortgagor, if ignorant of such failure, 
 
797 
 
 NEGLIGENCE. 
 
 798 
 
 for the amount of such insurance in case 
 the property is burned after the policy 
 
 Skelton v. L. & N.W.Ry. Co., (1867) 
 L.R. 2 C.P., per Willeb, J., at p. 636, fol- 
 lowed. 
 
 2. It is not necessary in such a case that 
 the company's undertaking should be 
 under seal. 
 
 3. The mortgagor has a right, under 
 section 39 of the King's Bench Act, to set- 
 off such damages against the mortgage 
 debt in the hands of an assignee in trust, 
 in the absence of proof of notice of the 
 assignment having been given to him be- 
 fore the fire. 
 
 Newfoundland v. Newfoundland, (1888) 
 13 A.C. 213, followed. Campbell v. 
 Canadian Co-operative Inv. Co., 16 M.R. 
 464. 
 
 8. Workmen's Compensation for 
 Injuries Act, R.S.M. 1902, c. 178— 
 
 Negligence of foreman or person entrusted 
 with duty of seeing that machinery and 
 plant are in proper condition — Employer 
 and workman — Defect in ways, works, 
 machinery and plant. 
 
 The plaintiff, a carpenter in the de- 
 fendant's employ under the superin- 
 tendence of a foreman, was diiected 
 to assist in doing some work which 
 necessitated the moving of a plank 
 from one position to another in a frame 
 building. The plank being above his 
 reach when standing on the floor, the 
 plaintiff, without specific directions from 
 and in the absence of the foreman, took 
 a ladder about six feet long that was 
 near by, placed it in position, stepped 
 on the lowest rung, held on to the top 
 rung with one hand and with the other 
 tried to raise the plank. In so doing 
 the rung on which he was standing 
 broke under the pressure and the plaintiff 
 feU upon some machinery underneath 
 and was severely injured. The ladder 
 was the property of the defendant. It 
 was made of cross pieces or cleats na.iled 
 to studding, but not " checked in," and 
 had been frequently used on defendant's 
 premises by the plaintiff and other 
 workmen. In answer to questions sub- 
 mitted to them, the jury found that the 
 ladder was defective, but they also in 
 effect found that the plaintiff had been 
 negUgent in not using some other and 
 safer method of reaching up to and 
 shifting the plank. 
 
 Held (Perdue, J. A., dissenting), that 
 the ladder was a part of the ways, works, 
 machinery and plant which it was the 
 duty of the foreman to see were in proper 
 condition, that there was evidence to 
 support the jury's finding that the ladder 
 was not properly constructed and that 
 the defect in it had not been remedied 
 owing to the negligence of the foreman, 
 thereby entitling the plaintiff to recover 
 damages under sections |5 (a) and 5 (a) 
 of the Workmen's Compensation "for 
 Injuries Act, R.S.M. 1902, c. 178, and 
 that the jury's finding as to the plaintiff's 
 negligence would not prevent such re- 
 covery. 
 
 Held, also, that the damages assessed 
 by the jury ($1500) being well within 
 the maximum allowed by statute, were 
 not excessive, and should not be reduced 
 on the contention that the plaintiff had 
 unreasonably neglected to follow the 
 advice of a medical speciaUst. 
 
 Marshal v. Orient Steam Navigation 
 Co., (1910) 79 L.J.K. B. 204, foUowed. 
 
 Per Peedtje, J. A. The plaintiff should 
 be non-suited because he had negli- 
 gently adopted a dangerous method 
 of reaching the plank when several 
 safer methods were open to him, without 
 ^directions from the foreman to use the 
 ladder and without taking care to see 
 that the ladder was safe. 
 
 CHpps v.. Judge, (1884) 13 Q.B.D. 383, 
 and Weblin v. Ballard, (1886) 17 Q.B.D. 
 122, distinguished. Higley v. Winnipeg, 
 20 M.R. 22. 
 
 See Animal FBRiB NATtraa;. 
 
 AlTTDMOBILE. 
 
 — Bailment, 4, 5. 
 
 — Breach op 'Trust. 
 
 — • Building Contract, 4. 
 
 constructivb notice. 
 
 — • Criminal Law, IX, 1. 
 
 — Fire. 
 
 — Hotel Keeper. 
 
 — Lord Campbell's Act, 3. 
 — ■ Master and Servant, II. 
 
 — Mortgagor and Mortgagee, III, 1. 
 
 — Municipality, III; IV, 2, 3, 5, 6. 
 
 — Navigable River, 3. 
 
 — Pleading, XI, 6, 7, 8. 
 — • Practice, XII, 1. 
 
 — Public Officer. 
 
 — Railways, II, 1; III, 2, 3, 4; IV, 3; 
 
 VI, A, B; VIII. 
 — ■ Sheriff, 6. 
 
 — Solicitor, 3. 
 
 — Workmen's Compensation for In- 
 
 juries Act. 
 
799 
 
 NEGOTIABLE I NSTRUMENT. 
 
 SOO 
 
 NEGOTIABLE INSTRUMENT. 
 
 Deposit receipt— " Not transferable"— 
 Chose in action — Assignment of debt. 
 
 The words " Not transferable " were 
 
 i printed across the face of a receipt given 
 
 by the bank to the assignor of the claimant 
 
 for a sum of money deposited by the 
 
 former with the Bank at interest. 
 
 Held, that, although this prevented 
 the instrument being considered ne- 
 gotiable, it did not prevent the depositor 
 from assigning the claim against the 
 Bank for the money deposited. 
 
 QvxBre, whether it is possible for any 
 persons to so contract as to prevent 
 a debt arising out of their transactions 
 from being assignable by the creditor. 
 Re Commercial Bank, of Manitoba. Bark- 
 well's Claim, 11 M.R. 494. 
 
 See Bills and Notes, V, 1. 
 
 — Frattdulent Conveyance,.15. 
 
 NEW ACTION. 
 
 See Railways, VI, C, 9. 
 
 NEW TRIAL. 
 
 1. Additional -evidence. 
 
 Cause heard and decree in plaintiff's 
 favor made on 27th March, 1883, when 
 defendant though absent appeared by 
 counsel ; cause re-heard by the Full 
 Court in Easter Term, 1883, and judg- 
 ment afiirming decree given 4th Feb- 
 ruary, 1884. 
 
 On 6th February, 1884, defendant 
 presented a petition, praying that the 
 decree might be set aside, and that he 
 might be allowed to adduce evidence 
 in his own behalf, and that the suit 
 might be set down again for hearing 
 and examination of witnesses, on the 
 ground that defendant was absent from 
 Manitoba and never made aware of 
 the date of hearing. 
 
 ,Held, that application must be dis- 
 missed with costs. Archibald v. Gold- 
 stein, 1 M.R. 146. 
 
 2. Appeal from Judge's findings of 
 fact — Principles on which Judge's findings 
 of fact reversed. 
 
 The plaintiff sued the executors of 
 S., deceased, to recover the amount of 
 three promissory notes made by S. for 
 
 $400, $63.25 and $101.80 respectively, 
 payable to, and endorsed by, the plaintiff. 
 The plaintiff alleged that the notes were 
 endorsed for S.'s accommodation, that 
 they were discounted by S., and that 
 the plaintiff retired them after S.'s 
 death. The cause was tried before 
 Taylob, C.J., without a jury, who entered 
 a verdict for defendant. The plaintiff 
 moved to have the verdict set aside and 
 one entered for him, on the ground that 
 the verdict was against evidence and the 
 weight of evidence. 
 
 Held, That the finding of a Judge 
 on facts is entitled to as much weight as 
 the finding of a jury, with this difference, 
 that, if the verdict should be set aside, 
 or reduced, the Court has the power 
 to enter the verdict that it thinks should 
 have been entered, without sending the 
 case to be tried over again. 
 
 Per KiLLAM, J. There is the one 
 element of difference that usually the 
 Court can ascertain the principle upon 
 whict the Judge proceeded more accur- 
 ately than in the case of a jury, and 
 the further discussion may shew that 
 principle to be so incorrect that the 
 Court should review the finding. 
 
 Per KiLLAM, J. The evidence touch- 
 ing the $400 note was insufficient, and 
 the verdict on that count should be set 
 aside. Chevrier v. Parmenter, 7 M.R. 
 194. 
 
 3. New material— FimZ judgment — 
 Order for summary judgment — Applica- 
 tion to Pull Court to reverse its own order^ 
 Special circu/mstances. 
 
 After the Full Court had affirmed an 
 order giving the plaintiff leave to sign 
 final judgment, and after the Supreme 
 Court of Canada had quashed an appeal 
 from the decision of the FuU Court, the 
 Court refused to re-open the case upon 
 new material and let in the defendants 
 to defend, although in a second action 
 between the same parties the Court upon 
 the same new material reversed an 
 order of the Referee giving the plaintiff 
 lea,ve to sign final judgment. London 
 & Canadian Loan & Agency Co. v. Muni- 
 cipality of Morris, 12 C.L.T. Occ. N. 76. 
 
 4. Objection to evidence — Motion to 
 set aside verdict. 
 
 Held, on motion to set aside a verdict, 
 no objection can be taken to the ad- 
 missibility of evidence which was not 
 objected to at the trial. Watson v. 
 Whelan, 1 M.R. 300. 
 
801 
 
 NEW TRIAL. 
 
 802 
 
 6. Surprise. 
 
 Defendant agreed to " feed and win- 
 ter " 47 young cattle tor plaintiff and to 
 be responsible for the loss of any of the 
 cattle in any other way than by death 
 from ordinary disease. 
 
 29 of the cattle died and plaintiff sued 
 for damages. 
 
 At the trial, plaintiff had a verdict 
 on the strength of evidence proving that 
 the stable in whick defendant had kept the 
 cattle was too small for so many cattle. 
 
 There was nothing in the statement 
 of claim to inform defendant upon what 
 grounds he was held liable, and he filed 
 affidavits to show that he had been 
 unable to ascertain such grounds on the 
 examination of the plaintiff for dis- 
 covery, also that the stable, which had 
 been, taken down and removed before 
 the trial, had been of quite- sufficient 
 size to accommodate the cattle. 
 
 Held, that there should be a new 
 trial on the ground of surprise in the 
 evidence produced' by the plaintiff as 
 to the size of the stable. Costs to abide 
 the result of the new trial. McLenaghan 
 v. Hood, 15 M.R. 510. 
 
 G. Weight of evidence — Verdict under 
 £20. 
 
 A new trial will not be granted, on 
 the ground that the verdict was against 
 the weight of evidence, where the verdict 
 is under £20. Cleaver v. Mun. of Blan- 
 chard, 4 M.R. 464. 
 
 See Amendment, 4. 
 
 — Appeal from CotrNTT Court, V, 2. 
 
 — Conditional Sale, 3. 
 
 — Criminal Law, XIII, 2: XIV, 1; 
 
 XYII, 12, 14. 
 
 — CoTjNTT Court, I, 6. 
 
 — Evidence, 2,^3, 6, 10, 13. 
 
 — Fi. Fa. Goods, 4. 
 
 — False Imprisonment, 3. 
 
 — Jury Trial, I, 9. 
 
 — Landlord and Tenant, I, 2. 
 
 — Libel, 5, 6. 
 
 — Lord Campbell's Act, 3. 
 
 — Misrepresentation, IV, 2. 
 
 — Negligence, I, 2, 3; V, 4; VI, 6. 
 
 — Practice, XII. 
 
 — Railways, VIII, 3; XI, 6. 
 
 — Real Property Act, 1, 7 ; II, 2. 
 
 — Trlal. 
 
 — Verdict op Jury, 1. 
 
 NEXT FRIEND. 
 
 See Infant, 10, 11, 12. 
 
 — Married Women, 3, 4. 
 
 — Real Property Act, III, 3. 
 
 NOMINAL PLAINTIFF. 
 
 See Security for Costs, VII. 
 
 NON-DELIVERY. 
 
 See Sale of Goods, II, 3. 
 
 NON-RESIDENT. 
 
 See Arbitration and Award, 7. 
 
 — Garnishment, V, 3, 7. 
 
 — Jurisdiction. 
 
 — Prohibition, I, 6. 
 
 — Security for Costs, II, 1. 
 
 NON-RESIDENT DEFENDANT. 
 
 See Examination fob Discovery, 4. 
 — Examination of Judgment Debtor, 
 9. 
 
 NON-RESIDENT LANDS. 
 
 See Sale of Land fob Taxes, IV, 1. 
 
 NON-SUIT. 
 
 See Infant. 2. 
 
 — Lord Campbell's "Act, 3. 
 
 — Negligence, V, 1. 
 
 — Practice, XV, 2. ' 
 
 — Railways, VI, C, 9. 
 
 — Real Property Act, II, 2; V, 
 
 NEWSPAPER ACT. 
 
 e Libel, 1. 
 Security for Costs, VI. 
 
 NOT GUILTY BY STATUTE. 
 
 See Landlord and Tenant, I, 2. 
 
; 803 NOTICE OF ACTION. 804 
 
 NOTICE OF ACTION. NOTICE OP MOTION. 
 
 See Municipality, III, 1; IV, 2, 5. See Practice, I, 1; V, 1; XlV. 
 
 NOTICE OF APPEAL. 
 
 See. Accident Insurance, 1. 
 
 — Appeal prom Order, 5. 
 
 — Practice, XIII. 
 
 — Time, 4. 
 
 NOTICE OF APPLICATION. 
 
 See MtTNiciPALiTT, I, 4. 
 
 — Sale of Lajstd for Taxes, V, 1. 
 
 — StTRHOGATE CoURT. 
 
 NOTICE OF ASSIGNMENT. 
 
 See Negligence, VII, 7. 
 — Set Off, 5. 
 
 NOTICE OF CANCELLATION. 
 
 See Vendor and Purchaser, II, 4, 5 ; 
 Vt, 12. 
 
 NOTICE OF CLAIM. 
 
 See Bailment, 3. 
 
 — Chattel Mortgage, III, 1; IV, 2. 
 
 NOTICE OF DISHONOR. 
 
 See Bills and Notes, X, 3, 7. 
 
 NOTICE OF PRIOR SALE. 
 
 See Vendor and Purchaser, VI, 9. 
 
 NOTICE OF RESCISSION. 
 
 See Vendor and Purchaser, IV, 2, 6. 
 
 N 5TICE OF TRIAL. 
 
 See Interpleader, VI, 1. 
 — Practice, XV. 
 
 NOTICE OF VOTING. 
 
 See Local Option By-law, II, 2; V. 
 
 NOTICE TO CONSIGNEE. 
 
 See Railway Company, III, 3. 
 
 NOTICE TO PRODUCE, 
 
 See Practice, XXVIII, 8. 
 
 NOTICE TO QUIT. 
 
 See Landlord and Tenant, III, 4. 
 
 NOTICE OF INJURY. 
 
 See Workmen's Compensation for In- 
 juries Act, I. 
 
 NOVATION. 
 
 See Contract, IV, 2. 
 — Evidence, 7. 
 
 NOTICE OF LIEN. 
 
 ... See Mechanic's Lien, VI, 2. 
 
 NOVELTY IN INVENTION. 
 
 . See Patent of Invention, 2. 
 
805 
 
 NUDUM PACTUM. 
 
 806 
 
 NUDUM PACTUM. 
 
 See Distress fob Rent, 1. 
 
 NUISANCE. 
 
 1. By-laws defining nuisances. 
 
 A by-law of the town of St. Boniface 
 provided that no stable should be built 
 and maintained at less than twenty feet 
 from any house without the permission 
 of the owner of such house and declared 
 all stables built and in use at the date of 
 the passing of the by-law, which did not 
 conform to that standard, to be nuisances 
 and as such subject to abatement. 
 
 Held, (1). The Municipality had no 
 statutory power to define what con- 
 stitutes a nuisance and its attempt to do- 
 so was idtra vires. 
 
 (2). Section 631 (o), giving power to 
 pass by-laws "for preventing and abating 
 public nuisances," gives no power to pass 
 such a by-law, as ths matters declared 
 by it to be nuisances are not shown to be 
 public nuisances and the council, in en- 
 acting it, did not deal with them as such. 
 Re Dupuis, 17 M.R. 416. 
 
 2. Injunction — Injury to landlord's 
 reversion — Damages in lieu of injunction — 
 Prospective change in nature of occupancy 
 of locality where nuisance exists. 
 
 1. A landlord is not entitled to an in- 
 junction to prevent the carrying on of a 
 hvery and feed stable business in prox- 
 imity to dweUings occupied by his ten- 
 ants in a mainly residential locality so as 
 to constitute a nuisance, without proof 
 of injury to the reversion or that one or 
 more of the tenants had left because of the 
 annoyance from the stable, but such in- 
 junction nlay be granted at the suit of 
 any tenant who proves such nuisaiice. 
 
 2. Although the nature of the occu- 
 pancy of a locaUty is a large factor in de- 
 ciding whether the carrying on of a cer- 
 tain trade there would or would not create 
 a nuisance; yet, in deciding that question, 
 no consideration need be given to the 
 probability that in the near future, owing 
 to the increase of population, the locaUty 
 will become mainly a business instead of 
 a residential district. - - .; 
 
 3. The plaintiffs being tenants from 
 month to month only, it would not be a 
 proper case for awarding damages instead 
 of granting an injunction, as it could not 
 
 be known how long the tenants might 
 remain and, besides, injuries of the kind 
 in question cannot be fully compensated 
 by damages and it would be impossible to 
 estimate such damages accurately in 
 every case. 
 
 Jones V. Chappell, L.R. 20 Eq. 539, 
 followed. 
 
 McKenzie v. Kayler, 15 M.R. 660. 
 
 3. Non-repair of highway by Muni- 
 cipality — Indictment for — Order for abate- 
 ment of — Remedy for disobedience of — 
 Writ de nocumento . amovendo. 
 
 When a municipaUty has been found 
 guilty upon indictment for a nuisance 
 for allowing a highway to remain out of 
 repair and has been ordered by the 
 Judge to abate the nuisance by a, given 
 date, the Court will, on it being shown 
 that the defendants have neglected to 
 obey the order, authorize the issue of 
 a writ de nocumento amovendo to the 
 sheriff to repair the highway at the 
 expense of the municipality. Rex v. 
 PoHage la Prairie, 2 WvL.R. 141, 10 
 Can. Cr. Cas. 125. 
 
 4. OfEensive odours — Injury to health 
 and business. 
 
 The plaintiff kept a shop on the ground 
 floor of a, . block and had her dwelling 
 apartments and Ker workroom on the 
 second floor. The defendants were tenants 
 of the cellar under the plaintiff's shop 
 and stored there potatoes and other 
 vegetables. , 
 
 During the winter months a strong 
 and offensive odour came from the 
 cellar into the premises of. the plaintiff 
 above, which caused the plaintiff and 
 some of her employees to become ill, 
 and the business carried on in the shop 
 was seriously injured in consequence. 
 
 Held, that the exercise of the de- 
 fendants' right to use the cellar for 
 storing vegetables was limited by the 
 general right of the pubhc, and that 
 they had no right to infringe upon or 
 interfere with the enjoyment of the 
 plaintiff's premises, and that the plain- 
 tiff was entitled to recover for the dam- 
 ages sustained in the business, and 
 those incurred in consequence of the 
 illness. 
 
 Robinson v. Kilvert, 41 Ch. D. 94 ; 
 Reinhardt- v. . Mentasti, 42 Ch. D. 685, 
 and Humphries v. Coiisires, 2 ■C.-P.D.. 
 2.S9, followed. Malcolm v. Brown, 16 
 C.L.T. Occ. N. 19S. 
 
807 
 
 NUL TIEL RECORD. 
 
 808 
 
 6. Right of private individual to 
 prevent infringement of municipal 
 by-law — Construction of building obstruct- 
 ing plaintiff's view — Injunction. 
 
 The plaintiff by injunction sougJit 
 to prevent the completion of a large 
 frame warehouse which the defendant 
 was erecting on ground leased by him 
 from a railway company, being part 
 of their right of way adjoining the lawn 
 of a property owned and occupied by 
 plaintiff as a dwelling in the City of 
 Winnipeg. On the other side of the 
 right of way was a strip of land, owned 
 by defendant, sloping down to the Red 
 River. 
 
 The warehouse was situated directly 
 between plaintiff's house and the river 
 and would obstruct plaintiff's view of 
 the river. It was being constructed 
 of wood in contravention of the fire 
 limit by-law of the citjr. 
 
 Held, (1) That plaintiff had no right 
 to the unobstructed view of the river. 
 
 (2) That plaintiff had no right to 
 enforce the fire limit by-law by injunc- 
 tion, as it was a by-law passed for the 
 protection of the general public and 
 providing for a penalty in case of its 
 infringement, and there was no evi- 
 dence to show that the risk of fire to 
 the plaintiff's property would be specially 
 increased by the construction of the 
 warehouse. 
 
 Atkinson v. Newcastle, &c., (1877) 
 2 Ex. D., p. 441, followed. 
 
 The plaintiff further urged that the 
 construction and intended use of the 
 warehouse would create a nuisance to 
 her which she was entitled to, have pre- 
 vented by ail injunction and gave some 
 evidence as to the use by tramps a,nd 
 others of the vacant ground on the side 
 of the warehouse next her property, 
 causing unpleasant smells, but it was 
 not shown that defendant was lessee or, 
 occupant of that vacant ground. 
 
 Held, that there was not sufficient 
 evidence to entitle the plaintiff to an 
 injunction on the ground of nuisance. 
 
 Action dismissed with costs. McBean 
 V. Wyllie, 14 M.R. 135. 
 
 NUL TIEL RECORD. 
 
 1. Issue — New Assignment. 
 
 Upon an issue of nul tiel record, the 
 only question is whether the record, 
 upon its face, shows that the present 
 
 cause of action may have been the 
 same as that for which judgment was 
 recovered. 
 
 If the plaintiff desire a closer ex- 
 amination of the former action, he should 
 file a new assignment, or a replication 
 denying the identity of the causes of 
 action. 
 
 To an action, (1) upon the common 
 counts, (2) in trover, (3, 4, 6, & 6) upon 
 a special contract for two years services, 
 at $1,000 a year, the defendant pleaded 
 to all the counts, except that in trover, 
 judgment recovered in the County Court. 
 The plaintiff repHed nul tiel record. 
 The record, when produced, showed 
 that the plaintiff had recovered for 
 debt, $83.33. 
 
 Held, that the existence of the alleged 
 record suflaciently appeared. 
 
 Per KiLLAM, J. — (1). The test as to 
 the identity of causes of action is, whether 
 the same evidence will support both 
 actions. 
 
 (2). A writ of certiorari to bring up 
 papers from the County Court should 
 be directed to the clerk of that court-n- 
 either by name, adding the name of his 
 office, or by the name of his office alone. 
 
 (3). It is no objection to a return to a 
 writ of certiorari that more papers than 
 directed are returned. 
 
 (4). The record of a judgment of the 
 County Court is the entry thereof in 
 the procedure book. Lunn v. Winnipeg, 
 2 M.R. 225. 
 
 2. Proof. 
 
 Held, (following Lunn v. Winnipeg, 
 2 M.R. 225), that the only question 
 upon an issue on a plea of nvl tiel 
 record is whether there is remaining in 
 the court in question the record of 
 such a judgment as the pleadings set up. 
 To a declaration in covenant for pay- 
 ment of money, and for use and occu- 
 pation, the defendant pleaded a number 
 of pleas, alleging that both causes of 
 action were in respect of rent, and setting 
 forth various circumstances shewing a 
 termination" of the tenancy. The plain- 
 tiff repUed that formerly he brought 
 an action in the County Court for other 
 rent under the same lease, in which 
 action the same defences were set up, 
 and the plaintiff had judgment ; a tran- 
 cript to the Court of Queen's Bench ; 
 and that the judgment thereby became 
 a judgment of the Court of Queen's 
 Bench. Rejoinder, nul tiel record. Upon 
 trial of this issue, the plaintiff produced 
 
809 
 
 a transcript of the procedure book of 
 the County Court, from which it ap- 
 peared that on a certain day the plaintiff 
 recovered against the defendant judgment 
 for $135, for debt, together with $20.10 
 for costs, and also produced the tran- 
 script of this judgment, in the statutory 
 form, from among the records of the 
 Court of Queen's Bench. 
 
 Held, the existence of the record as 
 alleged was sufficiently proved by the pro- 
 duction of the transcript filed in the Court 
 of Queen's Bench, and that the only judg- 
 ment subsisting was that recovered 
 in the Court of Queen's Bench by the 
 filing of the transcript there. Burridge 
 y. Ernes, 2 M.R. 232. 
 
 See Pleading, XI, 1. 
 
 OBJECTIONS AT TRIAL. 810 
 
 OBSTRUCTION TO NAVIGATION. 
 
 iSiee Navigable River. 
 
 OBJECTIONS AT TRIAL. 
 
 See Bills and Notes, X, 5. 
 
 — Chose in Action, 3. 
 
 — Conviction, 5. 
 
 — Costs, XIII, 21. 
 
 — Ejectment, 6. 
 
 — Evidence, 15.- 
 
 — ■ Garnishment, IV, 2. 
 
 — Jurisdiction, 2. 
 
 — 'i.iunicipalitt, iv, 6. 
 
 — New Trial, 4. 
 
 OBSTRUCTING CLERGYMAN 
 DIVINE SERVICE. 
 
 See Criminal Law, X, 1. 
 
 AT 
 
 OCCUPATION OP BUILDING BY 
 OWNER. 
 
 See Mechanic's Lien, V, 2. 
 
 OCCUPATION OF LAND AS NOTICE- 
 
 See Breach of Trust. 
 
 OCCUPATION RENT. 
 
 See Administration, 1. 
 
 OFFER AND ACCEPTANCE. 
 
 See Guaranty, 2. 
 — ■ Railways, V, 1. 
 
 OFFICER. 
 
 See County Court, II, 4. 
 
 OFFICER DE FACTO. 
 
 See BXllot Box Stuffing. 
 — Mandamus, 1. 
 
 OBSTRUCTION OF HIGHWAY. 
 
 See Information to Restrain Nuisance. 
 
 OBSTRUCTION OF STREET. 
 
 See Criminal Law, X, 4. 
 
 OFFICER OF CORPORATION. 
 
 See Company, II, 1. 
 
 — Examination of Judgment Debtok, 
 
 9, 10, 11. 
 
 — Examination for Discovery, 5, 7, 8, 
 
 9, 10. 
 
 — Production of Documents, 7, 8. 
 
 OBSTRUCTION OF VIEW. 
 
 See Nuisance, 5. 
 
 OFFICIAL ASSIGNEE. 
 
 See Fraudulent Preference. 
 
811 
 
 ONTARIO COURTS— DECISIONS OF. 
 
 812 
 
 ONTARIO COURTS— DECISIONS OF 
 
 See MOBTGAGOK AND MoBTGAGEB, VI, 15. 
 
 OPTION TO PURCHASE. 
 
 See Contract, I, 1. 
 
 — Vendor and Purchaser, VII, 5. 
 
 ORDER FOR PAYMENT OF COSTS., 
 
 See Practice, XXVIII, 17. 
 
 Held, that under this agreement, 
 when the crop came into existence, 
 the legal title to it was in the vendee, 
 and no property in it passed to the 
 vendor, but at most he had an equitable 
 right to enter and take the crop when 
 it came into existence, or to call for 
 the execution of a formal and legal 
 mortgage upon it ; and that he had no 
 title to the crop in question as against 
 an execution creditor of the vendee, 
 whose writ was placed ' in the sheriff's 
 hands before the crop was sown. Clifford 
 V. Logan, 9 M.R. 453, followed. Smith 
 V. Union Bank, 11 M.R. 182. 
 
 See Husband and Wipe, I. 
 — Trespass and Trover, 1. 
 
 ORDER OF COURT— WHEN 
 EFFECTIVE. 
 
 See Practice, XXVIII, 16. 
 
 OWNERSHIP OF GOODS. 
 
 See Company, II, 2. 
 
 — Husband and Wipe, II. 
 
 OVERHOLDING TENANT. 
 
 See Costs, V, 1, 2. 
 
 — L^^ndlord and Tenant, III. 
 
 OWNERSHIP. 
 
 <See Evidence, 15. 
 
 OWNERSHIP OF BED OF RIVER. 
 
 See Injunction, I, 5. 
 
 OWNERSHIP OF CROPS. 
 
 Agreement by vendee of land that 
 crops when grown should be the 
 property of vendor — Execution — Pri- 
 ority. 
 
 In an agreement for the sale of land 
 on credit it was provided that the crops 
 grown upon it should be and remain 
 the property of the vendor, and should 
 not be removed therefrom until the 
 then current year's payment of principal 
 money and interest should have been 
 made, without the authority of the 
 vendor. 
 
 OWNERSHIP OF OFFSPRING. 
 
 See Chattel Mortgage, I, 6. 
 
 PARENT AND CHILD. 
 
 See Negligence, VII, 2. 
 — Workmen's Compensation for In- 
 juries Act, 4. 
 
 PARLIAMENTARY AGENT. 
 
 See Solicitor and Client, III, 3. 
 
 PARLIAMENTARY ELECTIONS. 
 
 1. Recount of ballots — Mandamus 
 to County Judge — Balhis not objected to 
 before depidy returning officers. 
 
 Held, 1. That ^ mandamus will not 
 he to a county judge to compel him to 
 consider the vaUdity of ballot papers. 
 
 Be Centre Wellington Election, 44 
 U.C.Q.B. 132, followed. 
 
 Per Wallbridqe, C. J. Upon a re- 
 count, should the county judge consider 
 the vaUdity of ballot papers not objected 
 
813 
 
 PAROL AGREEMENT. 
 
 814 
 
 to before the deputy returning officers, 
 quaere. 
 
 Per KiLLAM, J. 1. The return of a 
 returning officer is not void when based 
 upon a certificate of the county judge, 
 in proper form, merely because the county 
 judge has not legally or fully discharged 
 his duties upon a recount of ballots. 
 
 2. There being another remedy, viz., 
 an application to the Legislature, a mon- 
 damus should not be granted. Regina 
 V. Prudhomme. Re Ncrrth Dufferin Election. 
 4 M.R. 259. 
 
 2. Registration of ^lectors — Mani- 
 toba Election Act, sees. 6, 7, 9, 10 — Sittings 
 of Registration Clerk — Order in Council — 
 Proclamation — Change in date — Power of 
 executive — Unauthorized change in notices 
 before amending order — Mandamus. 
 
 Pursuant to section 6 of the Manitoba 
 Election Act, 1904, an order of the 
 Lieutenant-Governor in Council was 
 passed on the 28th April, and proclaimed 
 in the Manitoba Gazette on the 30th 
 April, appointing registration clerks for 
 a certain electoral division, and fixing 
 the 23rd May as the date and A.'s house 
 as the place for receiving appUcations 
 for registration of electors. Notices as 
 provided' for in section 7 were posted 
 up as required, naming the 23rd as the 
 date. The King's Printer, for certain 
 reasons, deemed the date inconvenient, 
 and printed and on the 4th May sent 
 out new posters naming the 16th May 
 as the date, and these were posted 10 
 days before the 16th May. On the 
 10th May an order in Council was passed 
 amending the proclamation of the 30th 
 April by substituting the 16th for the 
 23rd May:— 
 
 Quoere, whether the Lieutenant-Gov- 
 ernor in Council had power to change 
 the date mentioned in the proclamation. 
 
 Semble, that, at all events, the King's 
 Printer had no authority to issue the 
 amended notices, and the notice thus 
 given was not a compliance with section 
 9, which requires the notice to be posted 
 at least 10 days before the commence- 
 ment of the registration sitting. 
 
 Upon an apphcation for a mandamus 
 to compel the registration clerk to hold 
 a sitting at A.'s house, the applicant 
 swore that he had seen the notice ap- 
 pointing the 23rd, but did not become 
 aware of the change of date until after 
 the sitting had been held on the 16th. 
 
 Semble, that it was no answer to the 
 apphcation that the applicant might 
 
 have attended at another place in the 
 electoral division on a subsequent day ; 
 his right was to have the clerk sit at the 
 places named in the proclamation. 
 
 But held, that to make a mandamus 
 effective the ' clerk must be ordered to 
 attend at some future time ; the Court 
 had no power to fix a time, and the 
 clerk was equally powerless. The Lieut- 
 enant-Governor in Council might have 
 the power under section 10, but the 
 Court had no jurisdiction to compel 
 the exercise of it ; and the Court will 
 not grant a mandamus unless it can 
 be made effective. Re Assiniboia Elec- 
 toral Division. Re Carr, 14 W.L.R. 392. 
 
 3. Return of election made by re- 
 turning officer — Jurisdiction of Court 
 of King's Bench — Injunction — Breech of, 
 by agent of defendant — Contempt of Court 
 — Manitoba Controverted Elections Act, 
 R.S.M. 1902, c. 34. 
 
 The Court of King's Bench has no 
 jurisdiction to hear and determine a com- 
 plaint against the return of a member to 
 serve in the Legislative Assembly of 
 Manitoba otherwise than in proceedings 
 under the Manitoba Controverted Elect- 
 tions Act, R.S.M., 1902, c. 34. 
 
 Reg. V. Prudhomme, (1887) 4 M.R. 
 159, followed. 
 
 The Court has power, however, to 
 deal with the defaults and misconduct 
 of election officers and compel them to 
 perform their pubhc duties. 
 
 An interim injunction had been issued 
 restraining the defendant, the returning 
 officer, his s'ervants and agents, from de- 
 livering his return to the Clerk of the Ex- 
 ecutive Council. Defendant had already 
 handed the return to an Express Com- 
 pany for transmission, and the agent of 
 the company was notified of the injunc- 
 tion, but delivered the return in spite of " 
 it. 
 
 Held, that such agent was liable to be 
 committed, not technically for a breach 
 of the injunction, but for a contempt of 
 Court tending to obstruct the course of 
 justice: Kerr on Injunctions, p. 599. 
 Davis V. Barlow, 20 M.R. 158. 
 
 PAROL AGRKEMKNT. 
 
 See Evidence, 19. 
 
 — Solicitor and Client, I, 1. 
 
815 
 
 PAROL EVIDENCE. 
 
 816 
 
 PAROL EVIDENCE. 
 
 See Evidence — Parol. 
 
 PAROL GRANT. 
 
 See Wat op Necessity. 
 
 PAROL TRUST. 
 
 See Statute op Fraitds, 6, 7. 
 
 PARTICULARITY IN PLEADING. 
 
 See Pleading, III, 1. 
 
 PARTICULARS. 
 
 See Practice, V, 3; XI, 5; XVI. 
 
 PARTIES TO ACTION. 
 
 1. To enforce agreement to pay 
 creditors — Creditors not necessary parlies. 
 
 The plaintiff filed a bill to enforce 
 the provisions of a chattel mortgage, by 
 which the defendants agreed with the 
 plaintiff to pay her creditors. The credi- 
 tors were not parties to this agreement. 
 The prayer of the bill was in the alter- 
 native — that the money found due under 
 the agreement should be paid to the 
 plaintiff, to be applied by her in paying 
 the creditors, or that it. should be paid 
 into court for the benefit of the creditors. 
 
 On demurrer for want of parties on the 
 ground that the creditors should have 
 been made parties to the suit. 
 
 Held, that the creditors were not ne- 
 cessary parties on the grounds, (1) That, 
 in case the plaintiff should succeed, if the 
 money were paid into court the creditors' 
 interests would be amply safeguarded, 
 and the defendants protected against any 
 future demand by them, (2) That, as 
 the creditors were hot parties to the agree- 
 ment on which the suit was brought, their 
 rights against the plaintiff could not be 
 barred by this suit. Gillies v. Commercial 
 Bank of Manitoba, 9 M.R. 165. 
 
 2. To set aside fraudulent convey- 
 ance — Grantor should not be made a party — 
 Allegation, that grantor has no other means. 
 
 To a bill by a; judgment creditor to set 
 aside a fraudulent conveyance made by 
 his debtor before judgment and to have 
 the land sold to pay the. debt, the debtor 
 is neither a necessary nor a proper party. 
 
 In such a bill it is sufficient to allege 
 that an execution in the district in which 
 the debtor resides has been returned nulla 
 bona by the sheriff, and it is unnecessary 
 to set up that the debtor has no other pro- 
 perty but the lands fraudulently conveyed. 
 Bank of Montreal v Black, 9 M.R. 439. 
 
 Distinguished, Shields v. Adamson, 14 
 M. R. 703. 
 
 3. Joinder of plaintiffs — Assignor and 
 assignee — Replevin — Equitable interest. 
 
 The plaintiff McMeans purchased from 
 the defendant two land scrips or certi- 
 ficates entitling the holder to locate on 
 Dominion lands. He afterwards sold 
 them to one Henderson who again sold 
 them to the plaintiff Wright. 
 
 This was an action of replevin for the 
 scrips which the defendant, as it was al- 
 leged, had wrongfully seized and kept. 
 At the commencement of the action, the 
 only interest McMeans had in the scrips 
 was to see that Wright got them and to 
 protect himself against claims by Hender- 
 son or Wright if the scrips could not be 
 recovered and used. Held, that McMeans 
 was properly joined as a plaintiff in the 
 action. 
 
 Carter v. Long, 26 S.C.R. 430, followed. 
 
 Wright v. Battley, 24 C.L.T. Dec. N. 
 278. 
 
 4. Joint covenantees — Improper use 
 of co-plaintiff's name. 
 
 If a covenant be made to two jointly, 
 either is entitled to sue in the name of both, 
 upon indemndfying the other. 
 
 The form of motion by the objecting 
 plaintiff is to stay proceedings until secur- 
 ity be given; not to have his name struck 
 out. Conley v. Wellband, 3 M.R. 207. 
 
 6. Partners — Demurrer — Allegation of 
 contract under seal — Contract signed by one 
 partner in firm's name vnthout authority 
 from co-partner — Warranty of avihoriiy. 
 
 The plaintiff declared, against the de- 
 fendant upon a contract alleged to have 
 been made betVeeh Martin and Curtis of 
 the one part and David Wark of the other 
 part. The agreement, as given verbatim in 
 
817 
 
 PARTIES TO ACTION. 
 
 818 
 
 the declaration, concluded with the words, 
 "In witness whereof the said parties here- 
 to have hereunto set their hands and 
 seals," and the signatures were copied with 
 the letter "-S" after each, but the de- 
 claration did not otherwise allege that the 
 defendant contracted by deed or under 
 seal. 
 
 Held, on demurrer, that it could not be 
 inferred from the use of the words quoted 
 that the agreement had been executed 
 under seal. 
 
 Martin was not a party to the suit, and 
 the declaration alleged that the defendant 
 executed the agreement in the firm name 
 of Martin & Curtis, of which he was a 
 member, but had no authority from Mar- 
 tin to use his name in making and execut- 
 ing it, of which want of authority Wark 
 . had. no knowledge, but that the defend- 
 ant acted therein on his own authority 
 Qnly. 
 
 Held, that the defendant might be 
 sued on such contract separately from 
 Martin. 
 
 The alleged contract contained a pro- 
 viso that Martin & Curtis might retain 
 the whole or any part of said contract 
 moneys, and pay the wages of said Wark's 
 employees and for supphes for him and 
 his men, and on the argurnent of the 
 demurrer it was objected that the declara- 
 tion did not show that the defendant had 
 not applied the moneys earned in accord- 
 ance with such proviso. 
 
 Held, that the proviso in question was 
 merely for a particular mode of payment 
 in discharge of the obligation and, if the 
 defendant had paid in that way, he 
 should have pleaded it. Wark v. Curtis, 10 
 M. R. 201. 
 
 6. Prior incumbrancers should not 
 be made parties — VariaMon nf decree. 
 
 The plaintiffs, judgment creditors of 
 the Railway Company, having obtained 
 a decree for appointment of a receiver, 
 etc., which decree directed the Master 
 among other things to inquire as to incum- 
 brances, and to settle the rights and pri- 
 orities of the several incumbrancers and 
 to add them as parties in his ofiBce, the 
 Master issued an order making the peti- 
 tioners parties to the cause in his oflBce. 
 
 The petitioners were mortgagees hold- 
 ing the first lien and charge upon the first 
 180 mUes of the defendants' railway in 
 trust for certain bond holders. 
 
 Held, On their petition, that they 
 should not have been made parties, and 
 that the decree should not have been 
 
 taken out as it was, but should have con- 
 fined the inquiry in the Master's office to 
 the liens and charges of subsequent in- 
 cumbrances. Allan V. Manitoba & North- 
 Western Railway Co. Re Gray, No, 2, 10 
 M.R. 123. 
 
 7. Redemption — Purchasers from mort- 
 gagee — King's Bench Act, Rule 40 — 
 Mortgage. 
 
 Whep, after default in payment of a 
 mortgage of lands, the mortgagee has sold 
 the lands under the power of saie in the 
 mortgage, the purchasers niust be made 
 parties to an action brought by the mort- 
 gagor for redemption, unless the plaintiff 
 is satisfied with judgment for redemption 
 subject to the several agreements of sale, 
 as the sales could not be set aside or in- 
 quired into without having the purchasers 
 before the Court. 
 
 It would not be sufficient to make the 
 purchasers parties in the Master's Office 
 under Rule 40 of the King's Bench Act, as 
 that rule appUes only to cases where no 
 direct relief is sought against the parties 
 to be added. 
 
 Rolph V. Upper Canada Building So- 
 ciety, (1865) 11 Gr. 276, and Hopper v. 
 Harrison, (1880) 28 Gr. 22, followed. 
 Campbell v. Imperial Loan Co. 15 M.R. 
 614. 
 
 8. Striking out parts of statement 
 of claim in which some of the defend- 
 ants are not interested- 
 
 Joinder of causes of action. 
 
 If the statement of claim in an action 
 against a number of defendants contains 
 paragraphs setting up matters in which 
 Some of the defendants are not interested, 
 such paragraphs should be struck out on 
 application of any of those defendants, 
 but not on the application of any of the 
 others. 
 
 Gower v. Couldridge, [1898] 1 Q. B. 348, 
 , and Sadler v. G. W. Ry., [1896] A. C. 450, 
 followed. 
 
 As incidental to the matters which led 
 up to the main cause of action against all 
 the defendants including an incorporated 
 company, plaintiffs' statement of claim 
 asked for judgment for a sum of money 
 alleged to be due to them by the com- 
 pany. 
 
 Held, that this did not constitute a 
 separate and distinct cause of action 
 against this company alone so as to bring 
 the case within the principle of the above 
 cited authorities. 
 
819 
 
 PARTNERSHIP 
 
 820 
 
 Kent Coal Company v. Martin, (1900) 
 16 T. L. R. 486, and Frankenburg v. Great 
 Horseless Carriage Co., [1900] 1 Q.B. 504, 
 followed. Martel v. Mitchell, 16 M.R. 266. 
 
 9. By survivor of three trustees, 
 mortgagees — Demurrer — Want of parties'. 
 
 On a bill for foreclosure filed by the 
 survivor of three trustees, who were 
 mortgagees, but had ho beneficial in- 
 terest in the mortgage moneys, 
 
 Held, on demurrer, that the repre- 
 sentatives of the deceased joint mort- 
 gagees were not necessary parties to the 
 suit. Landale v. McLaren,^ 8 M.R., 322. 
 
 10. Transfer of interest of owner — 
 
 Mechanic's lien — Suit by sub-contractor 
 against contractor. 
 
 A, an owner of property, who has 
 employed a contractor to build a house 
 for him and, before the filing of a hen 
 under the Mechanics' and Wage Earners' 
 Lien Act by a sub-contractor for his 
 claim against the contractor, has sold 
 and conveyed all his interest in the 
 land to a purchaser, is neither a necessary 
 nor a proper party to the action after- 
 wards commenced to reaUze the lien, as 
 , the plaintiff could not have any relief 
 against him. 
 
 Although the plaintiff's, claim would 
 be hmited to the amount due by A. to 
 the contractor and he would have to 
 prove what that indebtedness was, yet that 
 would not justify making A. a party, 
 as the plaintiff could prove that in- 
 debtedness at the trial or on a reference 
 to the Master without having A. before 
 the court. Christie v. McKay, 15 M.R. 
 612. 
 
 See Amendment, 8. 
 
 compant, iv, 14. 
 
 — Deed op Settlement. 
 
 — Dbvoltition op Estates, 2. 
 — - Election Petition, IV, 4. 
 
 — Fences. 
 
 — ^ Fratjditlent Conveyance, 13, 16, 18. 
 
 — Fraudulent Prbpbrbnce, II; III, 6. 
 
 — Garnishment, VI, 8. 
 — ■ Indemnity, 1. 
 
 — Misrepresentation, III, 2. 
 
 — Mortgagor and Mortgagee, V, 2; 
 
 VI, 6, 13. 
 
 — Municipality, VIII, 4, 7. 
 
 — Partnership, 7. 
 
 — Patent op Invention, 1. 
 
 J- Pleading, III, 1; IV, 1; VI, 1; 
 XI, 13. 
 
 — Practice, II, 3, 4; XVII. 
 
 See Principal and Agent, V, 2. 
 
 — Privity op Con pr act. 
 
 — Railways, IX, 1. 
 
 — Right of Action. 
 
 — Real Property Act, II, 3. 
 
 — Rectification of Deed, 1. 
 
 — Registered Judgment, 8. 
 
 — Solicitor's Lien for Costs, 1, 4. 
 
 — Statutes. Construction op, 2. 
 
 — Title to Land, 1, 2. 
 
 'irustees, 2. 
 
 — Vendor and Purchaser, IV. 5 ; VI, 
 
 3,16. 
 
 PARTNERSHIP. 
 
 1. Accommodation note signed by 
 one partner — Renewal with notice. 
 
 One partner is bound by the acts of 
 his co-partner in all acts referable to 
 the partnership trade ; but where a man 
 takes a security from one partner in 
 the name of the partnership, in a trans- 
 action not in the usual course of trade, 
 he takes such security at his peril. 
 
 One partner, without the knowledge 
 of his co-partner, signed a note in the 
 firm's name as accommodation for A. 
 The plaintiffs discounted this note 
 without notice of the irregularity. When 
 the note fell due the plaintiffs were made 
 aware of the facts, but took a renewal 
 signed in the same way. In an action 
 upon the renewal, 
 
 Held, that the above principle ap- 
 plied, and the plaintiffs could not re- 
 cover. Union Bank v. Buhner, 7 C.L.T., 
 Occ. N., 277. 
 
 2. Admissions by one partner — 
 
 Books as evidence — Ooods for private use. 
 
 S. was a member of the firm of S. 
 & Co. He purchased goods for the use 
 of the firm, but said that they were for 
 J. S. & Co., of which firm he said that 
 his partners were members. 
 
 Held, That the firm was liable. 
 
 It was alleged that some of the goods 
 were purchased by Stewart for his own 
 use. He having admitted, however, the 
 correctness of accounts delivered to 
 the firm, including these goods, and 
 the books of the firm, which he kept, 
 having recognised the indebtedness as 
 of the firm. 
 
 Held, that the onus was on the de- 
 fendants of proving that goods were so 
 purchased by S. 
 
 A partner has power to borrow money 
 for the purposes of the firm, but if bor- 
 
821 
 
 PARTNERSHIP. 
 
 822 
 
 rowed upon his own credit, even if ap- 
 plied for the purposes of the firm, he 
 alone is liable. Hudson's Bay Co. v. 
 Stewart, 6 M.R. 8. 
 
 3. Authority to sign partnership 
 name — Liability on notes signed by co- 
 partner. 
 
 Held, 1. The implied authority of 
 one partner to sign the partnership 
 name, or to make and indorse notes, 
 is limited to doing so for the purposes 
 of the partnership. 
 
 2. When a person takes a note 
 made or indorsed by a partnership, 
 knowing that it was not made or in- 
 dorsed for the purposes of the partner- 
 ship, the onus is cast upon him 
 of proving that the partnership sig- 
 nature was given with the knowledge or 
 assenfr of every member of the firm. 
 Union Bank v. Bulmer, 2 M.R. 380. 
 
 4. Discharge of retiring partner 
 by agreement with creditor inferred 
 from course of dealing — Partnership 
 Act, R.S.M. 1902, c. 129, s. 20 (6). 
 
 The plaintiff company was a creditor 
 of a firm composed of the defendant 
 and one McDonald. This firm was 
 dissolved in 1902, McDonald taking 
 over the assets, assuming the liabilities 
 and continuing the business. 
 
 The ' plaintiff's manager took part 
 in bringing about these arrangements, 
 and the company continued to sell goods 
 and give credit to McDonald and sub- 
 sequently to McDonald & Simmons. 
 It took renewal notes from McDonald to 
 cover the entire Uability of the old partner- 
 ship and the notes sued on were entered 
 in the bill book as paid by these re- 
 newals. The balance due by the firm 
 was charged up to McDonald in the new 
 account opened for him in the books 
 and the plaintiff, while persistently 
 urging McDonald for payment during 
 a period of nearly six years, never asked 
 the defendant for payment, although 
 it held the original notes of McDonald 
 and Bowser now sued on. It sought 
 security for this debt from McDonald. 
 Payments made by McDonald were 
 credited directly to him in the plaintiff's 
 ledger. Plaintiff allowed one of the 
 notes sued on to become barred by the 
 Statute of Limitations. 
 
 Held, that, from these acts and con- 
 duct of the plaintiff, there should be 
 inferred an agreement by the plaintiff 
 to discharge the defendant from his 
 
 hability as a member of the firm, and 
 that the case came within -sub-section 
 (b) of section 20 of the Partnership Act, 
 R.S.M. 1902, c. 129. 
 
 HaH V. Alexander, (1837) 7 C. & P. 
 746 2 M. & W. 484, foUowed. Watson 
 Manufacturing Co. v. Bowser, 21 M.R. 
 21. 
 
 5. Dissolution not registered — Con- 
 linuation of business by one partner — 
 ToH. 
 
 A partnership was dissolved, but the 
 dissolution was not registere'd. One of 
 the partners continued the business 
 under the partnership name and com- 
 mitted a tort. 
 
 Held, that the retiring partner was 
 not liable, there being no evidence that 
 he consented to, or knew of, the con- 
 tinuance of the firm name. Burt v. 
 Clarke, 5 M.R. 150. 
 
 6. Execution against goods of one 
 partner — Interpleader between execution 
 creditor and other partners — Priority as 
 between vendor of land sold on crop pay- 
 ments and execution creditor of purchaser 
 — Growing crops — Bills of Sale and Chattel 
 Mortgage Act, R.S.M. 1902, c. 11, s. 39. 
 
 When several persons are tenants 
 in common of a farm and jointly raise 
 crops on it, they are partners in such 
 farming operations and the crops when 
 harvested are the property of the partner- 
 ship. Such crops carmot be sold by 
 the sheriff under an execution against 
 one partner. All the sheriff can sell 
 is the share and interest of the execution 
 debtor in such of the chattels of the 
 partnership as are seizable under a fi. 
 fa., and all the purchaser gets is the 
 right to have the accounts of the partner- 
 ' ship taken to ascertain what that share 
 o: interest is, and then to realise 
 it in proceedings to wind up the partner- 
 ship. 
 
 Manitoba Mortgage Co. v. Bank of 
 Montreal, (1889) 17 S.C.R. 692, and 
 Helmore v. Smith, (1887) 35 Ch. D. 447, 
 followed. 
 
 Christie, one of the claimants in the 
 interpleader proceedings, had sold the 
 farm in question, on deferred payments, 
 to the defendant and two other persons 
 who had agreed that all the wheat grown 
 upon it should, when threshed, be de- 
 livered at an elevator or in cars in the 
 joint names of vendor and purchasers 
 and that half of the proceeds should 
 be applied, first, in paying the interest 
 
823 
 
 PARTNERSHIP. 
 
 824 
 
 due, second, in paying taxes and other 
 charges against the crop, and the balance 
 towards the purchase pricfe of the farm, 
 the remaining half to be paid to the 
 purchasers. 
 
 Held, that the plaintiff, as execution 
 creditor of one of the purchasers, could 
 reap no advantage against Christia frpm 
 section 39 of the Bills of Sale and Chattel 
 Mortgage Act, R.S.M. 1902, c. 11, which 
 makes void a security taken upon grow- 
 ing crops or crops to be grown, even 
 if that section would apply in such a 
 case as to wtich no opinion was ex- 
 pressed. The plaintiff, claiming the pro- 
 ceeds of the crops which were partner- 
 shij) funds, must fail an the issue as 
 against another partner claiming the 
 fund and also as against Christie, as 
 that partner conceded Christie's right 
 to it. Smith v. Thiesen, Christie et al. 
 Claimants, 20 M.R. 120. 
 
 7. Holding out oneself to public 
 as partner. 
 
 Action against A., B. and C, as mem- 
 bers of C. & Co., for money had and 
 received to the use of the plaintiff. In 
 truth B., C. & X. were the partners. 
 ■ A. had to the knowledge of B., but not 
 to the knowledge of C, held himself 
 out as a member of the firm. 
 
 Held, that a verdict against A., B. 
 and C. was right. 
 
 That X. was not a party was an 
 objection that could be taken by a plea 
 in abatement only. (a). Camion v. 
 Cameron, 3 M.R. 308. 
 
 . (a) Pleas in abatement having been 
 abolished, a motion to add X. would 
 now be necessary. Ed. 
 
 8. talaxA-^Beyresentations. ' 
 The law aS to the circumstances 
 
 under which an infant may be liable 
 as a member of a partnership stated. 
 Woods V. Woods, 3 M.R. 33. 
 
 9. Limited partnership — Partnership 
 Act, B.S.M. 1902, e. 129, ss. 61-81. 
 
 The defendant Rosenthal bought an 
 interest in a partnership business carried 
 on by his co-defendants under the name 
 Winnipeg Shirt and Overall Manufac- 
 turing Company and contributed $4000 
 in cash to the funds of the partnership. 
 Rosenthal intended that he should be 
 only a special partner with liability 
 limited to the amount he paid in and 
 the' three signed a certificate in the form 
 
 set out in section 66 of the Partnership 
 Act, R.S.M. 1902, c. 129, using the same 
 firm name. The certificate was filed 
 in the office of the Prothonotary who 
 noted it in a book he kept, pursuant to 
 > section 54, but it was not recorded " at 
 large " as then required by section 68. 
 
 Held, (1) That, under section 69, 
 the intended limited partnership failed 
 of formation because the certificate 
 had not been recorded at large, and, 
 also, under section 72, because the firm 
 name did not contain the nime of any 
 of the general partners. 
 
 2. That Rosenthal, having thus failed 
 to form a limited partnership under the 
 Act, was liable to the creditors of the 
 firm as a general partner. 
 
 3. To render himself liable as a general 
 partner, it is not necessary that one 
 should be clothed with authority to bind 
 his fellow partners as their agent. He 
 may be a silent or dormant partner and 
 yet liable as a general partner. 
 
 Poole V. Driver, (1877) 5 Ch. D. 
 474, foUowed. 
 
 Slingsby Manufacturing Co. v. Oeller, 17 
 M.R. 120. 
 
 Appeal by Rosenthal to the Supreme 
 Court dismissed. 
 
 10. Profits made by one partner 
 in private speculations with partner- 
 ship funds — Partnership Act, B.S.M. 
 1902, c. 129, ss. 22, 24, 32. 
 
 The defendant was the master mind 
 of the partnership, a firm of builders 
 and contractors. He possessed great 
 executive and organizing abihty, and 
 contributed from time to time nearly 
 all the capital with which in a period 
 of 25 years large profits were made in 
 carrying on that business,. The plain- 
 tiffs were his brothers, men with little 
 education or ability, competent only to 
 act as foremen on the works. They 
 always acted on the defendant's orders, 
 and only drew money from the firm for 
 their own use when and as permitted 
 by the defendant. He allowed Martin 
 Kelly to share equally with him in the 
 profits and Michael got one fourth, 
 but this was because they were his 
 brothers, and from motives of gener- 
 osity and ties of affection. There had 
 never been any written articles of the 
 partnership which was one at wiU ; but 
 after its dissolution the plaintiffs claimed 
 to share in the profits made by the de- 
 
825 
 
 PARTNERSHIP. 
 
 •826 
 
 fendant in speculations, mostly in real 
 estate, with moneys drawn by him from 
 the partnership funds before any as«er- 
 tainment of the respective shares of the 
 partners in, or any division of, the pro- 
 fits. The total amount so drawn out 
 by the defendant wa? much less than he 
 would have been entitled to had such 
 division been made. Entries were made 
 from time to time in the books of the 
 firm by direction of the defendant show- 
 ing particulars of the transactions in 
 question. The plaintiffs, though they 
 were aware of some of the speculations, 
 made no inquiries about them and ap- 
 peared to have taken at the time no 
 interest in them. The defendant never 
 made the firm hable for postponed pay- 
 ments on his purchases, but gave his 
 own covenants only ; and, in cases where 
 he made losses, they were never charged 
 to the firm. Each of the plaintiffs had 
 on several occasions, without the know- 
 ledge of the other, obtained the defend- 
 ant's consent to draw out money for 
 private speculations on his own account. 
 The defendant had, from the beginnihg, 
 followed the practice of paying his own 
 money into the firm so as to improve 
 its position financially and to allow it 
 the use of the money. 
 
 Held, (Cameron, J. A., dissenting) 
 applying section 22 of The Partnership 
 Act, R. S. M. 1902, c. 129, that the 
 course of dealing between the partners 
 had been such that there should be in- 
 ferred from it a consent of all the part- 
 ners that their mutual rights and duties, 
 as defined in sections 24 and 32 of the 
 Act, should be varied so as to aUow the 
 defendant full liberty of action in respect 
 of any funds which he would have been 
 entitled to . withdraw on a division of 
 the profits, that the entries in the books 
 had Jjeen made as they were only for 
 convenience and not as showing partner- 
 ship tra,nsactions, and that the plain- 
 tiffs had no right to share in the profits 
 of speculations clearly intended by the 
 defendant as private ones of his own. 
 
 Ex parte Harris, (1813) 2 V. & B. 210, 
 followed. 
 
 Helmore v. SmUh, (1886) 35 Ch. D. 
 456, distinguished. 
 
 The contrary intention which, by 
 section 24 of the Act, would prevent 
 property bought with money belonging 
 to the firm from being deemed to have 
 been bought on account of the firm, 
 sufficiently appeared from the evidence. 
 
 Per Perdue, J. A, 1. The intention 
 to be considered in this case is that pf 
 the defendant alone, and it is not neces- 
 sary to show that it must i)e that of all 
 the partners. 
 
 Ex parte Hinds, (1849) 3 De G. & Sm. 
 613, followed. 
 
 2. The plaintiffs had constructive notice 
 or means of knowledge of what the de- 
 fendant was doing and their qonsent 
 may be implied from that : Ex parte 
 Yonge, (1814) 3 V. & B. 36. 
 
 Kelly V. Kelly, 20 M.R. S79. 
 
 Reversed on appeal to the Privy 
 Council, [1913] A.C. 
 
 11. Liability for goods bought by 
 partner — Ratification. 
 
 Where one of two partners, without 
 the knowledge of the other, purchases 
 goods in his own name or in the name of 
 a firm which he expects to form after- 
 wards in partnership with some other 
 person, intending to exclude the other 
 partner from the contract, the latter 
 cannot be made liable upon the contract 
 by ratification afterwards, although the 
 old partnership is continued and the 
 goods are subsequently taken into stock 
 and disposed of for the benefit of the 
 firm. 
 
 A man cannot be made a party to a 
 contract unless he who assumes to contract 
 does so on behalf of that man ; and no 
 ratification can be effectual unless the 
 act has been done by the agent on be- 
 half of the party who ratifies, or, in other 
 words, there can be no binding ratifi- 
 cation by a person not contemplated 
 by the agent as his principal at the time 
 of entering into the contract. 
 
 Watson V. Swanri, (1862) 11 C. B. N. S. 
 771, and Vere v. Ashby, (1829) 10 B. 
 & C. 288, foUowed. 
 
 Durant v. Roberts, [1900] 1 Q. B. 629, 
 distinguished. Eraser v. Sweet, 13 M.R. 
 147. 
 
 See Amendment, 9. 
 
 — Banks and Banking, 4. 
 
 — Bills and Notes, III, 2. 
 
 — Contract, IX, 4. 
 
 — Costs, XIII, 17. 
 
 — Examination for Discovert, 12. 
 
 — Parties to Action, 5. 
 
 — Principal and Surety, 5. 
 
 — Rectification of Deed, 1. 
 
 — Registered Judgment. 
 
827 
 
 PART PERFORMANCE. 
 
 828 
 
 PART PERFORMANCE, 
 
 See Vendor and Pukchasbr, VI, 10. 
 
 PARTY APPEARING IN PERSON. 
 
 See Pbactice, XXVIII, 18. 
 
 PATENT FROM THE CROWN. 
 
 See Crown Patent. 
 
 PATENT OF INVENTION. 
 
 1. Action for infringement of patent 
 l^ights — Parties to action — Service out 
 of the jurisdiction — Patent Act, B.S.C. 
 1886, c. 61, as amended hy 53 Vic., c. 13. 
 
 To an action by the holder of a patent 
 of invention against parties resident 
 within the jurisdiction for an injunction 
 against infringement of the patent and 
 damages, other parties not within the 
 jurisdiction, who make and sell to the 
 defendants the goods which are the 
 subject of the' plaintifE's complaint under 
 another patent which the plaintiff claims 
 to be null and void, are neither necessary 
 nor proper parties, and service upon 
 them of an amended statement of claim 
 asking for damages and an injunction 
 against them, and for a declaration that 
 their patent is null and void, will be 
 set aside, with costs. 
 
 The statement of claim did not allege 
 that the non-resident parties had done 
 anything as to which an injunction 
 could be asked against them in Manitoba, 
 and upon its allegations the only relief 
 the plaintiffs could possibly claim against 
 them would be a declaration that their 
 patent was null and void, thus raising 
 two distinct and separate causes of 
 action, one against the parties within 
 the jurisdiction and the other against 
 the non-resident parties, both of which 
 issues should not be tried in one action. 
 
 Under the Patent Act, R.S.C., c. 61, 
 as amended by 53 Vicy c. 13, this Court 
 has no jurisdiction tWimpgaeh 'a ■ patent t 
 held by a person whose domicile is in 
 another province, but could only, on 
 the application of a defendant sued in 
 this Pr vince for an infringement of 
 
 such a patent, declare it to be void as 
 against him, leaving it prima "facie valid 
 as against every one else. Maw v. Massey- 
 Harris Co., 14 M.R. 252. 
 
 2. Novelty — New combination of well- 
 known devices. 
 
 Although aU the individual parts 
 of a machine may lack novelty, yet if, 
 by a new combination of them, a de- 
 cided improvement in the working is 
 attained, that is suflBcient to support 
 a patent of invention, and the courts 
 look with favor upon any slight change 
 whereby an improvement is effected 
 and find invention in it if they can. 
 
 The plaintiff's patented grain pickling 
 machine was constructed upon lines 
 similar to those of two other such mach- 
 ines that had been previously patented. 
 In all these the grain was fed into a 
 hopper on the top of a box containing a 
 revolving worm or screw, and the pick- 
 ling liquid was in a box so placed that 
 it would fall into the box containing the 
 worm so as to mix with the grain in its 
 progress to the discharging end of the 
 box ; but in the plaintiff's machine the 
 hquid.was conveyed through a lead tube 
 into the side of the box containing the 
 worm to a point underneath the opening 
 in the hopper so that the liquid and the 
 grain ran through together and much 
 space was saved. The mixing of the 
 grain and the pickling fluid was, owing 
 to the use of the lead tube and the peculiar 
 arrangements of the parts, more thorough- 
 ly done by the plaintiff's machine than 
 by either of the others ; and, though 
 of the same size as they, its capacity 
 was considerably greater. 
 
 Held, that there was sufficient novelty 
 and improvement in the plaintiff's ma- 
 chine to support his patent and that he 
 was entitled to the usual order for an 
 injunction and damages against the 
 defendants for infringing upon it. Mattice 
 V. Brandon Machine Works Co., 17 M.R. 
 105. 
 
 PAYMENT. 
 
 See Interest, 4. 
 
 — Vendor and Purchaser, V, 2. 
 
 PAYMENT AFTER NOTICE. 
 
 See Garnishment, VI, 8. 
 
829 
 
 PAYMENT BY CHEQUE. 
 
 830 
 
 PAYMENT BY CHEQUE. 
 
 Dishonor — Pleading. 
 
 Defendants, being indebted to plain- 
 tiffs, sent them the cheque of B. for a 
 portion of the amount. Subsequently 
 the plaintiffs rendered accounts showing 
 a credit of the amount of the cheque, 
 but stating that it had not been paid, 
 and still later rendered other accounts 
 showing the amount charged back. The 
 defendant in an earlier letter said that 
 he had not seen B. since getting the 
 cheque, but " will go and see him to- 
 morrow, and when I see him will remit 
 to you at once." His later letters made 
 no objection to the re-charging of the 
 amount. 
 
 Held, 1. That the conduct of the 
 
 Earties shewed that the cheque had not 
 een received as payment. 
 
 2. That, under a plea of payment, 
 the plaintiff was not bound to prove pre- 
 sentment of the cheque and dishonor. 
 
 3. That the' correspondence might be 
 considered as an admission that every- 
 thing had been done to entitle the plain- 
 tiff to sue. Campbell v. Heaslvp, 6 M.R. 
 64. 
 
 PAYMENT INTO COURT. 
 
 See Costs, XI, 2. 
 
 — Interpleader, II, 6. 
 
 — Pleading, X. 8. 
 
 — Practice, XXVIII, 19, 31. 
 — • Summary Judgment, I, 2. 
 
 — Trustees, 1. 
 
 PAYMENT TO AGENT. 
 
 See Landlord and Tenant, I, 8. 
 
 PAYMENT UNDER PROTEST. 
 
 See Sale of Land for Taxes, X, 2. 
 
 PEACE OFFICER. 
 
 See Criminal Law, IX, 2. 
 
 PECUNIARY BENEFIT. 
 
 See Lord Campbell's Act, 3. 
 
 — Municipality, IV, 2. 
 
 — Workmen's Compensation for In- 
 
 juries Act, 4. 
 
 PENALTY. 
 
 See Liquor License Act, 10. 
 — • Vendor and Purchaser, II, 4; VI, 
 15, VII, 6. 
 
 PENALTY OR LIQXnDATED DAM- 
 AGES. 
 
 See Building Contract, 3. 
 — Contract, XV, 12. 
 
 PAYMENT OF MONEY ON DEPOSIT 
 IN BANK. 
 
 See Winding-up, IV, 10. 
 
 PAYMENT ON ACCOUNT. 
 
 See Limitation of Actions, 7. 
 
 — • Real Property Limitation Act, 2. 
 
 PAYMENT OUT OF COURT. 
 
 See Practice, XXVIII, 16. 
 — Security for Costs, II, 2. 
 
 PENDING BUSINESS. 
 
 See Practice, XXVIII: 29. 
 
 PENITENTIARY. 
 
 See Criminal Law, XVII, 19. 
 — Ticket of Leave Act. 
 
 PERFORMANCE OF CONTRACT. 
 
 See Building Contract, 5, 6. 
 
 — Contract, VIII, 1, 2, 3, 4, 5; X, 3: 
 
 XII, 2; XV, 9, 13. 
 
 — Pleading, VIII, 2; XI, 4. 
 
 — Sale of Goods, VI, 5. 
 
831 
 
 PERJURY. 
 
 832 
 
 PERJURY. 
 
 Criminal Code, 1892, s. liS— Dom- 
 inion Elections Act, R.S.C. 1886, c. 8, 
 s. 45 — Authority to administer oath — 
 Personation. 
 
 The prisoner was convicted on an 
 indictment for perjury, in having sworn 
 ■before the Deputy Returning Officer 
 at an election for member of the House 
 of Cdmmons for the City of Winnipeg, 
 that he was the person whom he re- 
 presented himseK to be, named on the 
 list of electors for the polling sub-division. 
 He was not an elector, or entitled to vote 
 in the constituency. > 
 
 At the trial, prisoner's counsel con- 
 tended that there was no' authority 
 for the Deputy Returning Officer, under 
 s. 45 of the Dominion Elections Act, 
 R.S.C. 1886, c. 8, to administer an oath 
 to any. person but an elector, and the 
 Judge reserved a case for the opinion 
 of the Court as to whether the prisoner 
 had been properly convicted. 
 
 Held, that the statute must receive 
 a reasonable construction, that authority 
 was intended to be conferred, upon the 
 officer to administer the oath to any 
 person presenting himself and claiming 
 to be an elector entitled to vote, and that 
 under s. 148 of the Criminal Code, 1892, 
 prisoner had been properly convicted 
 of perjin-y. 
 
 Tribunals of limited jurisdiction have 
 implied authority to jeceive proof of 
 the facts on which their right to exer- 
 cise their jurisdiction depends. 
 
 Reg. V. Proud, L.R. 1 C.C. 71, followed. 
 Beg. V. Chamberlain, 10 M.R. 261. 
 
 PERMIT TO CUT HAY. 
 
 See CoNTKACT, V, 2. 
 
 PERSONA DESIGNATA. 
 
 See Contempt op CotrET, 1. 
 
 — Municipality, VIII, 5. 
 
 — Railways, I, 1. 
 
 PERSONATION. 
 
 See Pebjury. 
 
 PETITION. 
 
 See Homestead, 1. 
 
 — Local Option By-Law, VI. 
 
 — Pbactice, XXVIII, 20. 
 
 PETITION UNDER REAL PROP- 
 ERTY ACT. 
 
 See Real Property Act, I, 3, 6, 7, 8; 
 III; IV, 1;X, 7. 
 
 PICKETTING AND BESETTING. 
 
 See Trade Unions. 
 
 PITCH HOLES IN WINTER ROAD. 
 
 See Municipality; IV, 6. 
 
 PLAINTIFF A PUPPET. 
 
 See Injunction, I, 10. 
 
 PLEA IN ABATEMENT. 
 
 See Pleading, XI, 1. 
 
 PLEA OF NON EST FACTUM. 
 
 See Principal AND Surety, 4. 
 
 PLEADING. 
 
 I. Amendment. 
 
 II. Counterclaim. 
 
 III. Fraud. 
 
 IV. Fraudulent Conveyance. 
 
 V. Joinder of Causes op Action. 
 VI. Multifariousness. 
 Prolixity. 
 
 Puis Darrein Continuance. 
 Sale of Land Under Registered 
 Judgment. 
 X. Striking Out as Embarrassing. 
 XI. Miscellaneous Cases. 
 
 VII 
 
 VIII, 
 
 IX, 
 
833 
 
 PLEADING. 
 
 834 
 
 I. Amendment. 
 
 1. Departure in replication — Costs. 
 When a plaintiff is not entitled to 
 
 relief on the case made by his bill, but 
 may be so entitled on facts set up or 
 partly set up in the answer, he should 
 amend the bill instead of making admis- 
 sions in the repHcation. 
 
 The plaintiffs sought rehef at the 
 hearing on a case or state of facts different 
 from that set forth in their bill of com- 
 plaint, but which was partly set up in 
 the answer. In their repljcation they 
 admitted these allegations in the answer, 
 but did not amend their bill, and brought 
 the case on for hearing. The evidence 
 failed to estabUsh the case made by the 
 bin, and the plaintiffs did not ask leave 
 to amend. 
 
 Held, without deciding' whether the 
 plaintiffs were entitled to any relief on 
 the evidence submitted, that the biU 
 should be dismissed with costs unless 
 the plaintiffs wished leave to amend, 
 which they might have on payment of 
 costs. Boijle V. Wilson, 9 M.R. 180. 
 
 2. Illegality — Amendment — Dispute 
 note — Weights and Measures Act. 
 
 At the trial of an action in the County 
 Court to recover the price of a quantity 
 of Ume, the defendant objected that the 
 plaintiffs had not shown that the Hme 
 was measured by a standard measure 
 according to the Dominion Weights 
 and Measures Act, and th^t they could 
 not recover without showing this. The 
 defendant had not in his dispute note 
 set up the provisions of this Act or 
 claimed the benefit of it or alluded to 
 it in any way. 
 
 Held, on appeal to the Queen's Bench, 
 that the defendant could not avail him- 
 self of the fjrovisions of the Act as against 
 the plaintiff's claim without having 
 set up such defence in his dispute note, 
 and the Court would not interfere with 
 the discretion of the County Court 
 Judge in refusing to allow the defend- 
 ant's dispute note to be amended for the 
 purpose of setting up such defenfce. 
 Such a defence based on a statute must 
 be set up in the dispute note or the de- 
 fendant cannot avail himself of it. 
 
 Illegality, whether it arises on a statute 
 or at common law must be pleaded, 
 and it makes no difference whether the 
 illegality appears from the plaintiffs' 
 proofs or otherwise, and the onus of 
 
 proving it rests upon the defendant. 
 Haribury v. Chambers, 10 M.R. 167. 
 
 3. Action for recovery of possession 
 of land — Joinder of causes of action — 
 Multiplicity of suits — King's Bench Act, 
 s. 38 (k). Rule 258. 
 
 The plaintiff Lee, being the assignee 
 of a contract of sale of land by the de- 
 fendants P. and M. to the defendant G., 
 paid the balance due under the contract 
 to P. and M. and received from them a 
 transfer under the Real Property Act. 
 He then discovered that one L. was in 
 possession of part of the land, claiming 
 title by prescription. 
 
 This prevented Lee from getting his 
 transfer registered and he brought .this 
 action for recovery of possession from L., 
 joining, by leave of a Judge obtained 
 under Rule 258 of the King's Bench Act, 
 a claim for specific performance of the 
 contract as against G. and damages by 
 way of compensation or otherwise. 
 
 This was an application for leave to 
 amend the statement of claim by adding 
 a claim against P. and M. for specific 
 performance of the contract alleged to 
 have been made by them directly with 
 Lee when he paid his money to them and ' 
 they gave him the transfer, or for com- 
 pensation in default. 
 
 Held, that, under sub-seetion (&) 
 of section 38 of the King's Bench Act, 
 the amendments asked for should be 
 allowed. 
 
 Krut V. Spence, (1887) 36 Ch. D. 770, 
 followed. 
 
 The test as to whether an amendment 
 ought to be allowed is whether or not 
 the other party would be placed in such 
 a position that he could not be compen- 
 sated by an allowance for costs or other- 
 wise. 
 
 Stewart v. Metropolitan Tramway Co., 
 (1885) 16 Q.B.D. 180 ; Annual Practice, 
 1905, p. 350, followed. 
 
 That the amendment asked for set 
 up a new cause of action is not of itself 
 a sufficient ground for refusing to allow 
 it. 
 
 Budding v. Murdoch, (1872) 1 Ch. D. 
 42 ; Huhbock v. Helms, (1887) 56 L.J. 
 Ch. 539, followed. 
 
 The contention that leave to join 
 another cause of action with one for 
 the recovery of land can only be granted 
 before the commencement of the action 
 is not supported by the authorities 
 which show that such leave is granted 
 
835 
 
 PLEADING. 
 
 836 
 
 whenever the Court thinks it reasonable 
 to do so. 
 
 Rushbrooke v. Farley, (1885) 52 L.T. 
 572 ; Hunt v. Tensham, 28 Sol. J. 253, 
 and White v. Ramsay, (1888) 12 P.R. 626, 
 followed. Lee v. Gallagher, 15 M.R. 677! 
 
 II. COUNTBECLAIM. 
 
 1. Strikinsr out defence. 
 
 In an action for possession of land 
 by a landlord against his tenant, the 
 defendant may counter-claim apainst 
 the plaintiff for damages for illegal 
 seizure, distress and sale of his goods 
 under an alleged claim for rent of the 
 same land; and the paragraph of the state- 
 mer^t of defence setting up' such counter 
 claim will not be struck out on the grtjund 
 that it raises an issue which should be 
 tried by a jury. Dockstader v. Phipps, 
 
 9 P.R. 240, and Goring v. Cameron, 
 
 10 P.R. 496, followed. Oowenlock v. 
 Ferry, 11 M.R. 257. 
 
 2. Practice — Third party— King's 
 Bench Act, Rules 294, 295. 
 
 Action by the registered owner of 
 land to remove a caveat filed by de- 
 fendant. 
 
 Held, that the defendant had, under 
 Rule 294 of the King's Bench Act, R.S.M. 
 1902, c. 40, the right to set up by way 
 of countet'-claim that a third party had 
 agreed in writing to sell the land to the 
 defendant, that such third party was a 
 co-owner with the plaintiff and, in ex- 
 eoiiting the agreement, had acted on 
 behaK of himself and the plaintiff and was 
 authorized to do so, and to claim specific 
 performance of the agreement against 
 both ; but there was nothing in the rules 
 to permit the defendant to set up a claim 
 in the alternative against such third 
 party alone for damages for breach of 
 warranty of authority to make the 
 agreement. Femie v. Kennedy, 19 M.R. 
 207. 
 
 III. Fraud. 
 
 1. Allegations of fraud or error — 
 
 Parties — Fraudulent vendor — Attorney- 
 General — Costs. 
 
 It is not sufficient to allege that a 
 patent was issued through fraud, or in 
 error or improvidence, without setting 
 out in what the fraud or error or im- 
 providence consisted ; or to allege that 
 it was issued upon the faith of certain 
 statutory declarations which were untrue,- 
 
 without showing what the declarations 
 contained. 
 
 The original patentee was made a 
 party to . an information to set aside a 
 patent, although the information alleged 
 that he had conveyed the land to his 
 co-defendant. The information charged 
 fraud as against the patentee's vendor, 
 but none against himself. 
 
 Held, that the patentee could not 
 demur for want of equity. 
 
 The Attorney-General will not be 
 ordered to pay costs ; the Imperial 
 Statute 18 and 19 Vic, c. 90, not being 
 in force in this province. Atty.-Gen. v. 
 Richard, 4 M.R. 336. 
 
 2. Election to rescind contract for 
 
 — Allegation of rescission and restituiion 
 — Amendment of plea of fraud. 
 
 1. A plea setting up fraud in the sale 
 of a horse to the defendant should contain 
 allegations that, on discovering the 
 fraud, he rescinded the contract and 
 restored the horse, or — in case the horse 
 was dead — that it had died before dis- 
 covery of the fraud from disease or acci- 
 dent without defendant's fault and that, 
 for that reason, restitution was im- 
 possible. 
 
 2. There is not the same objection 
 to amending a plea of fraud by adding 
 such allegations as there would be to 
 amending the defence by setting up 
 a plea of fraud. 
 
 3. Such allegations may be allowed 
 to be added by way of amendment to 
 a plea of fraud so as to make it a good 
 plea, even after all the evidence has been 
 heard, when the whole question of re- 
 scission -and restitution has been fully 
 gone into in the evidence. Moore v. 
 Scott, 5 W.L.R. 8. 
 
 IV. Fbaudtjlbnt Conveyance. 
 
 1. Certificate of Judgment — Judg- 
 ments Act, R.S.M. 1892, c. 80, s. 6. 
 
 In a bill to reahze on a decree of the 
 Court of Queen's Bench on its equity 
 side, ordering money to be paid, and 
 relying upon the registration of a certi- 
 ficate of such decree as creating a charge 
 and incumbrance on lands of the de- 
 fendant under section 6 of tjie Judgments 
 Act, R.S.M. c. 80, it is essential to allege 
 precisely that the decree referred to was 
 one ordering money, costs, charges or 
 expenses to be paid to some person, 
 or into Court or otherwise; and, where 
 the. bill alleged only that, in certain pro- 
 
837 
 
 PLEADING. 
 
 838 
 
 ceedings in this Court against a debtor, 
 a decree was made, that in pursuance 
 of the decree the master made a report, 
 and the plaintiEf recovered a judgment 
 against the debtor for $ , and he 
 
 was ordered, not stating by what, to pay 
 to the plaintiffs forthwith the said sum 
 of money, and that, in pursuance 6f such 
 decree, report and proceedings there- 
 under, the plaintiffs caused a certificate 
 of the said decree to be issued and re- 
 gistered in the Registry Office for the 
 proper Land Titles District, a demurrer 
 for want of equity was allowed with 
 costs. 
 
 The biU also sought to set aside certain 
 conveyances as fraudulent, and plaintiffs' 
 counsel contended that, notwithstanding 
 the defective allegations of a lien and 
 charge, a sufficient case was made out 
 for a declaration that the deeds were 
 fraudulent ; but, as the bill was not filed 
 on behalf of the plaintiffs and all other 
 creditors, this contention was held un- 
 tenable. 
 
 Beese River Mining Co. v. Atwell, 
 L.R. 7 Eq. 347, and Longeway v. Mitchell, 
 17 Gr. 190, explained. Credit Fonder ' 
 Franco-Canadien v. Schultz, 10 M.R. 417. 
 
 2. Action to restrain debtor from 
 transferring his property before judg- 
 nient — Injunction — Allegations necessary 
 to show right — Evidence to show that trans- 
 fer fraudulent. 
 
 In the statement of claim in an action 
 brought by the plaintiff on behalf of 
 himself and aU other creditors of the 
 defendant to recover a debt and for an 
 injunction to prevent the debtor from 
 making further transfers of his property 
 and for a declaration that transfers 
 aheady made are fraudulent and void, it 
 must be clearly alleged: 
 
 (a) That the defendant is indebted 
 to the plaintiff, showing in what way and 
 that the debt existed at the time of the 
 transfer. 
 
 (b) That there were at the time other 
 creditors of the defendant, and 
 
 (c) That, after parting with the assets 
 in question, the debtor had not enough 
 property left to meet his HabUities. 
 
 An interim injunction based upon a 
 pleading lacking these allegations was 
 dissolved. 
 
 The only evidence brought forward 
 upon the motion for the injunction to 
 prove the alleged fraudulent nature of 
 the transfers was that the debtor had 
 stated to the plaintiffs' manager in reply 
 
 to a demand for security that he had 
 no security to give, whereas a short 
 time before he was proved to have been 
 the owner of a large number of shares 
 in different companies. 
 
 Per HowELi., C. J. A. This was not 
 sufficient evidence of the fraud charged 
 to warrant the issue of an injunction. 
 
 Traders Bank of Canada v. Wright, 
 8 W.L.R. 208. 
 
 V. Joinder of Causes op Action. 
 
 1. Distinct causes of action. 
 
 The declaration stated that in con- 
 sideration that the plaintiff would let 
 to the defendant a certain house and 
 furniture therein for a certain period, 
 at $60 a month, the defendant promised 
 to enter on the said premises and occupy 
 the same, and keep the same in tenant- 
 able repair, and to use and take care 
 of the said furniture for and during the 
 said period, and to deUver the same 
 up at the end of the said period in good 
 repair, reasonable wear and tear excepted, 
 and to pay to the plaintiff the said sum 
 of 160 a month, at the end of each and 
 every month. The breaches alleged were 
 that " the defendant, after having en- 
 tered on and taken possession of the said 
 premises and furniture, and occupied 
 and used them for a portion of the said 
 term, wilfully and without reasonable 
 cause or excuse, left the said premises 
 and furniture unoccupied and uncared 
 for for a long time, and during the re- 
 mainder of the said term, and refused 
 to pay the plaintiff the said rent of $60 
 per month, whereby the plaintiff lost 
 the use and profit of the said money 
 and the said premises and furniture, 
 and was put to great expense, cost and 
 trouble, in caring for and storing the 
 said furniture, and in insuring the same 
 from injury and damage, and was other- 
 wise greatly damaged." • 
 
 Held, that the count could not be 
 objected to on the ground that it em- 
 braced two distioct causes of action. 
 Hagel v. Starr. 2 M.R. 92. 
 
 2. Joinder of defendants — Joinder 
 of cause of action arising out of tort with 
 one arising out of contract — King's Bench 
 Act, Rule 219. 
 
 A plaintiff may, under Rule 219 of 
 the King's Bench Act, proceed in the 
 same action against one defendant for 
 a breach of a contract and against other 
 defendants for mahciously and wrong- 
 
839 
 
 PLEADING. 
 
 840 
 
 fully procuring and inducing the breach, 
 there being such a unity in the matters 
 complained of as . entitles the plaintiff 
 to join all the defendants. 
 
 Campania v. HovMer, [1910] 2 K.Ej. 
 3^4; Frankenburg v. Great Horseless 
 Carnage Co., [1900] 1 Q.B. 504 ; Bullock 
 V. London Omnilms Co., [1907] 1 K.B. 
 264, &TxAEvans v. Jafray, (1901) 1 O.L.R. 
 614, followed, 
 
 Smurthwaite v. Hannay, [1894] A.C. 
 494, and Sadler v. Great Western Ry. 
 Co., [1896] A.C. 450, not foUowed, be- 
 Qause they were decided under English 
 Order XVI, rule 1, before it was amended 
 so as to make it the same as our Rule,218. 
 Gas Power . Age v. Central Garage Co., 
 21 M.R. 496. 
 
 VI. MTJLTIFARIOUSlSrESS. 
 
 1. Parties to suit — Demurrer — Setting 
 aside release given by trustee in fraud 
 of cestuis qvs trustent — Allegation that 
 release under seal -^ Fraud, if relied on, 
 must be sufficiently alleged. 
 
 A number of creditors of defendant 
 M., having assigned their claims to 
 defendant S. so that he might sue upon 
 all in one action at law, fUed a bill in 
 equity to set aside a release of their 
 claims given by S. to M., and to prevent 
 M. from setting up the release as a de- 
 fence in the action at law. The plain- 
 tiffs alleged that it had been procured 
 by M. in Collusion with S., with know- 
 ledge of S.'s position, and with the intent 
 and design of defeating and defrauding 
 the plaintiffs. The alleged release was 
 set out verbatim in the biU, and purported 
 to have been executed under seal, but 
 there was no specific allegation that the 
 release had been executed under seal. 
 The bill also asked for payment by M. 
 of the plaintiffs' several claims. 
 
 ffeld, on demurrer, 
 
 ^). That the biU was not multifarious. 
 
 (2). That there is jurisdiction in equity 
 to set aside such a release for fraud, 
 even if the same relief could have been 
 obtained by motion in the action at law ; 
 and, although the Coiut now has power 
 to give equitable relief in actions at law, 
 the plaintiffs are not confined to seeking 
 it there. 
 
 (3). But that the demurrer should be 
 allowed, because ^he biU did not suffici- 
 ently allege that the release complained 
 of had been executed under seal, and 
 there were no sufficient charges of fraud 
 or breach of trust to«warrant the inter- 
 
 ference of a court of equity. Dougan 
 v. Mitchell, 9 M.R. 477. 
 
 2. Want of Equity — Demurrer. 
 
 The bill filed prayed for an account 
 against defendant S., payment of the 
 amount which might be found due the 
 plaintiffs, and in default a sale of certain 
 chattels upon which they claimed' a 
 right to possession until payment. It 
 alleged that the defendant S. had given 
 a mortgage to the defendants the I. 
 Bank upon the chattels and prayed an 
 injunction against the Bank, to restrain 
 it from taking possession of, and selling, 
 the chattels. 
 
 Held, the demurrer of the defendants, 
 the I. Bank, for multifariousness and 
 want of equity should be allowed. Ward 
 V. Short,^ 1 M.R. 328. 
 
 VII. Peolixitt. 
 
 1. King's Bench Act, Rules 306, 326. 
 
 1. Mere prolixity in a pleading, not 
 such as will embarrass or delay the fair 
 trial of an action, does not warrant 
 the striking out, imder Rules 320 or 326 
 of the King's Bench Act, of any portions 
 of it and there is no power under any of 
 the Rules for the Court to revise plead- 
 ings which are merely over-lengthy by 
 striking out or amending particular 
 paragraphs in whole or in part. 
 
 Millington v. Loring, (1880) 6 Q.B.D. 
 195, followed. 
 
 2. In a statement of claim making 
 out a case for an injunction to prevent 
 an infringement of the plaintiffs trade 
 name, they may either allege in terse 
 and general terms the acquisition of title 
 by long user, or they may set out such 
 facts in detail to prove the user, as they 
 might have furmshed by way of par- 
 ticulars, if demanded, in case they had 
 confined themselves in the first instance 
 to a general allegation of title acqviired 
 by user. Theo. Noel Co. v. yiUs Ore Co., 
 17 M.R. 319. 
 
 2. Striking out pleadings as em- 
 barrassing — King's Bench Act, Rules 
 306, 326. 
 
 Notwithstanding the requirement of 
 Rule .306 of the King's Bench Act that 
 " pleadings shall contain a concise state- 
 ment of the material facts upon which 
 the' party pleading relies, but not the 
 evidence by which they are to be proved," 
 and notwithstanding the amendment 
 of Rule 326 by 7 <Sc 8 Edw. VII, c. 12, 
 
841 
 
 PLEADING. 
 
 842 
 
 s. 6, by inserting the words "unneces- 
 sary or " before the word " scandal- 
 ous " therein, if pleadings are merely 
 proUx by reason of containing passages 
 setting out facts which are immaterial 
 and unnecessary and passages which 
 are merely recitals of the evidence pro- 
 posed to be adduced, such passages should 
 not be struck out under Rule 326 as they 
 are neither embarrassing nor tending 
 to prejudice or delay the fair trial of 
 the action. 
 
 Theo. Noel Co. v. Vit(e Ore Co., (1907) 
 17 M.R. 319, and dictum of Bowen," 
 L. J., in Knowles v. Roberts, 38 Ch.D. 
 at p. 270, followed. MacLean v. King- 
 don Printing Co., 18 M.R. 274. 
 
 VIII. Puis Darrein Continuance. 
 
 1. Amendment-r-De/ences arising after 
 delivery of statement of defence — King's 
 Bench Act, Rule 339. 
 
 Defences arising after the delivery of 
 the statement of defence should be 
 allowed on the defendant's application 
 to amend if they are such that they may 
 be fuUy met by facts set up by the plain- 
 tiff in reply. 
 
 If, howevery an amendment' sought 
 to be made to the statement of defence 
 is of such a nature that it would, if made, 
 put the plaintiff in such a position that 
 he could not be compensated by costs 
 or otherwise, it should be refused upoii 
 an application made for leave to make 
 it after the lapse of the eight days from 
 the delivery of the statement of defence 
 within which, by Rule 339 of the King's 
 Bench Act, the defendant may of right 
 make such an amendment. 
 
 Steward v. North Met. Tramways, 
 (1885) 16 Q.B.D. 180, 558 ; Lee v. Gall- 
 agher, (1905) 15 M.R. 677, and cases 
 collected in Annval Practice, 1909, p. 
 370, followed. City of Winnipeg v. 
 Winnipeg Elec. Ry. Co.. 19 M.R. 279. 
 
 2. Evidence in diminution of dam- 
 ages — New contract — Estoppel by judg- 
 ment or payment — Adding new pleas — ■ 
 Discretion. 
 
 1, Leave may be given to withdraw 
 pleas, and plead de novo to enable a de- 
 fendant to plead matter arising subse- 
 quent to the last pleading, without 
 thereby waiving his former pleas. 
 
 2. In actions upon quantum meruit for 
 wort and labor, defective workman- 
 ship may be proved in mitigation of 
 damages, although not pleaded. Secus 
 if the action be upon a special contract. 
 
 3. In an action upon a sjjecial contract 
 for the sale of a specific article, for goods 
 sold and delivered, e'ndence of a breach 
 of a warranty may be given in reduction 
 of the contract price, although not pleaded. 
 
 4. In an action for goods sold and 
 delivered, or for work and labor, evi- 
 dence of damage for delay cannot be 
 given unless under a counter-claim. 
 
 5. Semble. — In an action by a carrier 
 for freight, evidence of damage to the 
 goods cannot be given unless under a 
 counter claims 
 
 6. If the terms of a special contract 
 be not fully complied with, a new con- 
 tract to pay for the woik actually done 
 at its true value may be implied from 
 the defendant's accepting the benefit 
 of it. 
 
 7. A judgment against a contractor 
 and his surety may be pleaded, as an 
 estoppel, against the contractor alone 
 in an action by him against the other 
 parties to the contract and their sureties. 
 
 8. Payment for work and labor after 
 action brought is no estoppel in an 
 action by the employer for non-com- 
 pletion of the contract, or- for delay. 
 
 9. A judge has no discretion to shut 
 out a defendant from a bona fide defence, 
 or a plaintiff from a right bona fide to 
 press a claim upon a mere sUp of a party 
 or his attorney, unless other rights 
 intervene, or there are aggravating cir- 
 cumstances. 
 
 10. The discretion of a judge as to 
 admitting new pleas not interfered with. 
 Smith V. Strange, 2 M.-R 101. 
 
 IX. Sale of Land Under Reqistbrbd 
 Judgment. 
 
 1. Exemptions — Certificate of judg- 
 ment — Bill to enforce — Allegations in bill. 
 
 A bill in equity to enforce a lien created 
 by a registered certificate of judgment 
 upon the lands of a judgment debtor 
 need not allege that the lands are not 
 exempt from such proceedings. 
 
 Fqnseca v.. Macdonald, 3 M.R. 413, 
 distinguished. Keewatin Lumber Co. v. 
 Wisch, 8 M.R. 365. 
 
 2. Jurisdiction of the Court — Re- 
 troactive legislation — Queen's Bench Act, 
 1895, Rules 803-807—60 Vic., c. 4. 
 
 Everjrthing is intended in favor of 
 the jurisdiction of a Superior Court : 
 Peacock v. Bell, (1678) 1 Wm. Saund, 
 96 ; Mayor of London v. Cox, (1866) 
 L.R. 2 H.L. 239. 
 
843 
 
 PLEADING. 
 
 844 
 
 Therefore, where the statement of 
 claim in an action for possession of land 
 aUeged the recoveiy of a judgment in 
 a County Court, the registration of a 
 certificate thereof, the making of an 
 order of the Court of Queen's Bench for 
 the sale of the land under the judgment, 
 and an order vesting the land in the 
 plaintiff as purchaser. 
 
 Held, on demurrer, that, for anything 
 that appeared in the statement of claim, 
 the order for sale might have been re- 
 gularly made in an action in thisi Court, 
 although, at the date of the order, there 
 was no j-urisdiction to make such an 
 order except after an action commenced 
 for that purpose, and that the demurrer 
 should be overruled. ' 
 
 Held, also, per Dubuc, J., (1) that the 
 amendment to Rule 807 of the Queen'S- 
 Bench Act, 1895, made by 60 Vic, c. 
 4, although made after the orders relied 
 on, had the effect of validating them, 
 if they had not been regular, as they 
 had not been attacked in any way prior 
 to its passing; (2), following In re ^Pad- 
 slow, etc., Association, (1882) 20 Ch. D. 
 137, that an order made by a coUrt of 
 competent jurisdiction which has author- 
 ity to decide as to its own competency 
 must be taken to be a decision by the 
 Court that it has jurisdiction to make 
 the order, and the proper way to get 
 rid of it, if it is erroneous, is to appeal 
 against it, as in Proctor v. Parker, 11 
 M.R. 485. mtz V. Froese, 12 M.R. 346. 
 
 See, however, Ritz v. Schmidt, 31 S.C.R. 
 602. 
 
 X. Striking Out as Embarrassing. 
 
 1. Exceptions to the declaration 
 
 — Demurrer 'to defendant's pleas al- 
 lowed — Subsequent application to strike 
 out count in declaration. 
 
 Although a count of the declaration 
 may be double, setting out two separate 
 things, if the defendant pleads over 
 and his pleas are held bad on demurrer, 
 it is too late for him to move to strike 
 out the count in the declaration as em- 
 barrassing. Livingstone v. Rowand, 12 
 C.L.T. Occ. N. 30. 
 
 2. As embarrassing — Counterclaim 
 — Matter pleaded in anticipation of de- 
 fence. 
 
 A counterclaim should not contain 
 allegations set up only by way of anti- 
 cipating the defence that the defendant 
 
 supposes the plaintiff will make to it, 
 and such allegations will be struck out 
 as embarrassing. City of Winnipeg v. 
 Toronto General Trusts Corp., 19 M.R. 
 420. 
 
 3. Embarrassing pleas — Equitable de- 
 fence-. 
 
 The defendant's 13th plea alleged that . 
 the promissory notes sued on were made 
 by the defendant for the accommodation 
 of the payees to the knowledge of the 
 plaintiffs, and that the plaintiffs were 
 indebted to the payees in certain sums 
 of money which the defendant and the 
 payees desired to set off against the plain- 
 tiffs' claim. The payees had indorsed 
 the notes to the plaintiffs, but were not 
 parties to this action. 
 
 Held, that this could only be a defence 
 in equity, and should have been intro- 
 duced, with the words, "for a defence 
 on equitable grounds," in accojrdance 
 with the Administration of Justice Act, 
 section 11, and, as it was not, it should 
 be struck out. 
 
 The 14th plea was similar to the 13th, 
 and commenced with the statement that 
 it was pleaded on equitable grounds, 
 but in addition to the statement of the 
 set-off it contained allegations relating 
 to a deed or agreement that had been 
 made between the payees and the plain- 
 tiffs which raised issues altogether colla- 
 teral to the main question of the set-off. 
 
 Held, that such plea in such form 
 should be struck out as embarrassing. 
 Union Bank of Canada v. McBean, 10 
 M.R. 211. 
 
 4. Embarrassing defences — King's 
 Bench Act, Rules 290, 306, 309, 313 and 
 326. 
 
 The plaintiffs sued for the price of 
 goods alleged to have been sold and 
 dehvered to the defendant, and, in the 
 alternative, claimed damages for non- 
 acceptance of the goods and non-payment 
 for same. 
 
 By the third paragraph ftf the state- 
 ment of defence, the defendant denied 
 that she had purchased or received the 
 goods, and then proceeded as follows : 
 — " And the defendant is informed that 
 the aUeged claim of the plaintiffs for the 
 said brushes (part of the goods), if any, 
 arose prior to the time when the defendant 
 started in business, and if the same 
 exists at all, which the defendant does 
 not admit, it is against the estate of the 
 
845 
 
 PLEADING. 
 
 846 
 
 defendant's late husband and not against 
 the defendant." 
 
 Held, that the part of the paragraph 
 quoted was embarrassing, and should 
 be struck out because it was not stated 
 positively but only on information, 
 and was thus in violation of Rule 306 
 of The King's Bench Act, and also 
 because it sought to raise an immaterial 
 issue. 
 
 Odgers on Pleading, 103, 106, and 
 Jones V. Turner, (1875) W.N. 239, re- 
 ferred to. 
 
 Paragraph 5 was in part as follows ; 
 — " The defendant says that she never 
 agreed to purchase mufflers from the 
 plaintiffs for the price and sum of £129 
 15s. Id., as alleged by the plaintiffs." 
 
 Held, that this was an evasive or am- 
 biguous denial containing a " negative 
 pregnant," and was not in compliance 
 with Rule 290, which requires a specific 
 denial, if any is made, as the statement 
 would be true even if the fact was that 
 the defendant had purchased the goods 
 for £129 15s., and that this paragraph 
 must be amended or in default struck 
 out. 
 
 Paragraph 7 alleged that some of the 
 goods rrferred to in the statement of 
 claim, if ordered at aU, which was not 
 admitted, were ordered under a con- 
 tract set out in another paragraph setting 
 up a counter-claim, a contract which 
 was in no way identified with that sued 
 upon, and alleged a breach of such other 
 contract and went on to set up two qmte 
 different defences. 
 
 Held, that this paragraph also was 
 embarrassing and should be amended, 
 or in default struck out as conflicting 
 with Rule 309. 
 
 Davy V. Garrett, (1878) 7 Ch. D. 489, 
 and Re Morgan, (1887) 35 Ch. D. 497, 
 followed. Ahis Schweiger & Co. v. 
 Vineherg Co., 15 M.R. 536. 
 
 6. Embarrassing' defences on 
 motion under Rule 318 of the Queen's 
 Bench Act, 1896. 
 
 Questions of substantial difficulty or 
 importance raised by the statement of 
 defence should not be disposed of on 
 motion in chambers, under Rule 318 of 
 the Queen's Bench Act, 1895, to strike 
 out paragraphs of the statement of de- 
 fence as embarrassing, but should be 
 left to be dealt with at the trial of the 
 action. 
 
 The defences set out in the statement 
 of defence printed in the report were held 
 
 to present questions of such substantial 
 difficulty and importance ' that they 
 should not be struck out on motion in 
 chambers. 
 
 ^trw, Life Insurance Co. v. Sharp, 
 (1896) 11 M.R. 141, discussed and 
 explained. Long v. Barnes, 14 M.R. 427. 
 
 6. Embarrassing pleas — Falsity. 
 
 A false plea cannot, merely on the 
 ground of its falsity, be assumed to have 
 been filed for embarrassment or delay 
 if there be other vaUd pleas upon the 
 record. . ' 
 
 The rule as to striking out embarrassing 
 pleas appUes to affirmative pleas. It 
 is not necessarily unreasonable that a 
 defendant should put a, plaintiff to the 
 proof of his case. 
 
 Upon a motion to strike out a plea, 
 although the plaintiff give prima fade 
 evidence of its falsity, the defendant 
 is not bound to swear to its truth in 
 order that it may not be struck out. 
 
 Although there be direct Manitoba 
 authority against the validity of a de- 
 fence, the plea will not, merely upon 
 that ground, be struck out. Woods v. 
 Tees, 5 M.R. 256. 
 
 7. Action for malicious prosecu- 
 tion — Striking out paragraphs of defence 
 as embarrassing — Queen's Bench Act, 1895, 
 Rules 280, 283, 293, 298, 301 and 318. 
 
 1. In the statement of defence in an 
 action for malicious prosecution a simple 
 traverse of the plaintiff's allegation of 
 the want of reasonable and probable 
 cause is sufficient. 
 
 2. In such an action, when the defend- 
 ant in separate paragraphs of his state- 
 ment of defence alleges certain facts 
 tending to show reasonable ground for 
 his belief in the plaintiff's guilt, but 
 leaves it open for hfmseU to prove other 
 and distinct facts for the purposes of 
 this defence at the trial, so that the 
 plaintiff might be' misled into assuming 
 the 'allegations on the record to be all 
 he has to meet, such paragraphs should, 
 under , Rule 318, Queen's Bench Act, 
 1895, be struck out as embarrassing. 
 
 3. In such a defence it is not sufficient 
 to allege that the defendant received 
 certain information without showing the 
 source or that it was reliable, or to allege 
 possession by the plaintiff of the animals 
 which he had been accused of steahng 
 without showing that it was recent 
 possession, or that all the information 
 received had been laid before the magis- 
 
847 
 
 PLEADING. 
 
 848 
 
 trate before whom the charge had been 
 laid and before counsel who advised the 
 prosecution complained of, without show- 
 ing what facts had been laid before 
 them ; and paragraphs of the defence 
 setting up such matters without showing 
 absolutely reasonable and probable cause 
 should be struck out. Rogers v. Clark, 
 13 M.R. 189. 
 
 8. Payment _irito Court— Equitable 
 defences. 
 
 Held, 1. To an action upon a 
 covenant in a mortgage, a, plea of pay- 
 ment into court may be joined with a 
 plea of non est factum. 
 
 2. In such an action an equitable 
 plea as to the amount sued for, except 
 a certain sum, and, as to that sum, pay- 
 ment into court, was struck out as em- 
 barrassing, not being contemplated by 
 the form of plea prescribed by the C.L.P. 
 Act. 
 
 3. A plea of payment into court must 
 be an answer to the whole count to which 
 it is pleaded, or if to a part only of the 
 money claimed, then it must be con- 
 fined to answering that part, and any 
 answer, legal or equitable, to any other 
 portion of the cause of action must be 
 set up in a separate plea. Pratt v. Wark, 
 2 M.R. 213. 
 
 9. Traverse — Defences settin'g up righf 
 to do things not complained of by plain- 
 tiff — Injunction against members of trade 
 union — Declaratory judgment — King's 
 Bench Act, R.S.M. 1902, c. 40, s. 38 (e). 
 
 1. Pleadings in defence are confined 
 to denials, (a) of the jurisdiction of the' 
 Court, (6) of the plaintiff's charges, or 
 (c) of ' the sufficiency in law of those 
 charges, and pleas by way of confession 
 and avoidance. ^ 
 
 2. A denial by a defendant that he 
 has been gxiilty of any improper con- 
 duct is not a proper traverse of the 
 plaintiff's charges complaining of specified 
 acts of the defendant, and should* be 
 struck out. 
 
 3. Defences setting up merely argu- 
 mentative claims of right to do certain 
 things which the defendants do not 
 admit having done, and which do not 
 clearly appear from the^ pleadings to 
 be the acts charged against them, should 
 be struck out, not being pleas by way 
 of traverse or by way of confession and 
 avoidance. 
 
 4. This Court would have no juris- 
 diction, under sub-section (e) of section 
 
 38 of the King's Bench Act, to give a 
 declaratory judgment interpreting an 
 Act of the Parliament of Canada on 
 hypothetical facts, even if it could so 
 interpret a Provincial statute on the 
 application of a defendant. Vulcan Iron 
 Works Y: Winnipeg Lodge, No. 122, 
 IntematioTMl Association of Machinists, 
 16 M.R. 207. 
 
 XI. Miscellaneous Cases. 
 
 1. Fleas in abatement and bar to 
 ?ame count — R.P. Act — Instrument sub- 
 stantially inform given by Act — Non-Regis- 
 tration — Action on covenant in unregistered 
 instrument. 
 
 After a plea in abaternent had been filed 
 and issue joined upon it, pleas in bar were, 
 by leave, added, 
 
 Held, That the plea in abatement was 
 waived; and after trial of the issues it was 
 disregarded. . 
 
 The defendant, owner of land subject tp 
 the Real Property Act, executed a lease 
 of it to plaintiff, using the form given in the 
 Act respecting Short Forms of Indentures. 
 It purported, however, to be made in 
 respect of the Act respecting Short Forms 
 of Leases. The lease contained the statu- 
 tory covenant for quiet enjoyment. The 
 lease was not registered or filed. After- 
 wards the lessor conveyed the land to X. 
 by a conveyance which made no mention 
 of the lease. 
 
 In an action upon the covenant for quiet 
 enjoyment, after ouster by X. 
 
 Held, 1. That the covenant in the lease 
 could be sued upon. 
 
 2. That the instrument was within the 
 Act respecting Short Forms of Indentures. 
 
 3. Costs of an action of ejectment by 
 plaintiff against X. were allowed as part 
 of the damages, but not costs of some 
 Police Court proceedings stated in evi- 
 dence to have arisen out of an endeavour 
 by the plaintiff's husband to obtain 
 possession, but the nature of which did 
 not clearly appear. 
 
 Per KiLLAM, J. 
 
 1. The instrument was substantially in 
 conformity with the form given in R.P. 
 Act, and could have been registered. 
 
 2. Not having been registered it could 
 not take effect as a lease. 
 
 3. Even without registration the coven- 
 ant might be sued upon. 
 
 4. The neglect of the lessee to register 
 his lease was not, but the transfer by the 
 lessor without mention of the lease, was. 
 
849 
 
 PLEADING. 
 
 850 
 
 the proximate cause of the damage to 
 plaintiff. 
 
 Per Bain, J. 
 
 Qucsre, whether the lease was one which 
 could have been registered under the R.P. 
 Act. Shvre v. Green, 6 M.R. 322. 
 
 2. Admissions — Proof of deed by Regis- 
 trar's certificate. 
 
 The bill aUfeged, as the plaintiff's title 
 to the lands in question, the existence of a 
 patent and certain deeds. The answer, 
 altough not expressly admitting the patent 
 and deeds, charged that the latter were 
 procured by fraud and deception; that 
 they were never read over to the grantor, 
 and that the parcels were not those in- 
 tended by the grantor to be conveyed; 
 and prayed by way of cross-relief that the 
 patent and the deeds set forth in the bill 
 should be declared to be clouds upon the 
 defendant's title. 
 
 Held, aflBrming the judgment of Wall- 
 BEIDQE, C.J., that the patent and deeds 
 were admitted by the answer. 
 
 Held, that the production of a deed 
 from the registry office with the usual certi- 
 ficate of the registrar indorsed was suffi- 
 cient proof of the deed. 
 
 Canada Permanent Loan and Savings 
 Co., V. Page, 30 U.C.C.P. 1, approved. 
 Pritchard v. Hanover, 1 M.R. 366. 
 
 3. Alternative relief— The bill alleged 
 that, the defendants having proceeded to 
 expropriate certain lands of the plaintiff 
 and a certain award having been made, 
 an agreement was come to whereby the 
 City was to give certain other lands and a 
 certain sum of money for the land of the 
 plaintiff. 
 
 Held, that there were not two oppos- 
 ing claims alleged, and that no part 
 of the bill was demurrable upon that 
 ground. In such a case, the Court being of 
 opinion that the agreement was proved 
 and the award good, and the City being 
 unable to give title to its lands, a decree 
 was made for payment to the plaintiff of 
 the amount due upon the footing of the 
 award. Wright v. Winnipeg, 3 M.R. 349. 
 
 4. Conunon Counts — Special agree- 
 ment. 
 
 Where a special agreement is substan- 
 - tiaJly performed, though not in the exact 
 terms thereof, the plaintiff may recover 
 on the common counts; but not where 
 there is a condition which he must comply 
 with before recovery, and no new contract 
 
 can be implied. 
 peg, T.W., 56. 
 
 Clarke v. City of Winni- 
 
 5. Allegation of completed contract. 
 
 The declaration alleged that, "in con- 
 sideration that the plaintiff would haul for 
 the defendant the blocks that would be 
 required for paving," &c., "the defendant 
 promised to allow and permit the plaintiff 
 to haul all the said blocks and to pay him 
 therefor,"&c. ' (Then followed allegations 
 of partial performance of the work.) . "Yet 
 the defendant refused to allow the plaintiff 
 to haul the remaining portion of the said 
 blocks," &c. 
 
 Upon demurrer, held, that the count 
 disclosed a completed agreement, and not, 
 merely an unaccepted offer of the defend- 
 ant. Veitch V. McLennan, 3 M.R. 383. 
 
 6. Contract or tort. 
 
 Plaintiff, having sustained personal in- 
 jury and loss of baggage in a railway acci- 
 dent, obtained leave to proceed in an action 
 provided he declared in contract. His 
 declaration contained the following counts : 
 
 1 & 2. Allegation of contract to carry; 
 breach, that defendants did not safely 
 carry, but owing to negligence goods lost. 
 
 3 & 4; Allegation of contract to safely 
 and secm"ely carry; breach, that defend- 
 ants did not safely and securely carry, but 
 owing to negligence plaintiff was injured. 
 
 5 & 6. The same as 1 & 2 without the 
 aUegatioh of negligence. 
 
 Held, 1. (Overruling DuBtrc, J.) That 
 the first four counts were in contract and 
 not in tort. 
 
 2. That counts 1 & 2 were in reality the 
 same as 5 & 6 and should therefore be 
 struck out as encumbering the record. 
 
 The defendants pleaded to counts 5 & 6 
 a condition of the contract by which their 
 hability was restricted to $100, and pay- 
 ment into Court of that amount. 
 
 To this plea plaintiff replied negligence 
 within section 24 of the Consolidated Rail- 
 way Act, 1879. 
 
 Held, that this replication should not 
 be struck out, but if objectionable should 
 be demurred to. Shaw v. C.P.R., 5 M.R.' 
 198. 
 
 7. Denials of allegations of fact in 
 the statement of claim — Kirig's Bench 
 Act, Rule 290, as re-enacted by 7 & 8 Edw. 
 VII, c. 11, s. 4. > 
 
 To an action charging negligence on the 
 part of the defendants in leaving open and 
 unguarded a trap door in their premises 
 through which the plaintiff, while lawfully 
 
851 
 
 PLEADING. 
 
 852 
 
 there, fell and was injured, it is proper for 
 defendants to plead under Rule 290 of the 
 King's Bench Act, as re-enacted by 7 & 
 8 Edw. VII, c. 11, s. 4, denying in separ- 
 ate paragraphs the leaving of the trap 
 door open or unguarded, and that it was 
 by reason of its being open or unguarded 
 that the plaintiff fell into it if (which was 
 not admitted) he did in fact fall into it, 
 and setting up in other paragraphs that, 
 if the trap door was open (which was de- 
 nied), it was sufficiently guarded by a rail 
 and was not dangerous, that there was no 
 negligence on the part of the defendants, 
 and that the plaintiff did not exercise 
 ordinary care or caution in the ma,tter. 
 
 Form of defence in Eullen & Leake, 6th 
 ed. at p. 889, referred to. Smith v. 
 Canada Cycle & Motor Co., 20 M.R. 134. 
 
 8. Departure — Damages — Objection to 
 appeal. 
 
 If a carrier's contract provide that he 
 will not, in case of loss, pay more than a 
 certain sum, this Umits the amount of the 
 liability only, and need not be set out in 
 the declaration; but, if it provide that he, 
 he will not pay anything upon goods 
 which exceed .a certain value, this limits 
 the liability itself and must be alleged in 
 the declaration. 
 
 Therefore, where to a declaration against 
 a carrier in contract, not alleging any 
 Umitation, the defendants pleaded a 
 term of the contract, viz., that except as 
 to 1100 a special contract, "that the bag- 
 gage liabUity of the defendants should be 
 limited to wearing apparel not exceeding 
 $100 in value"; to which the plaintiff 
 replied gross neghgence. 
 
 Held, that the rephcation was a de- 
 parture and bad upon demurrer. 
 
 Semble, The ConsoHdated Railway Act, 
 1879, sec. 25, sub-sec. 4, probably intro- 
 duces an implied term in contracts to 
 which it is applicable. Shaw v. C.P.R., 5 
 M.R. 334. 
 
 Appeal to Supreme Court quashed. 16 
 S.C.R. 703. 
 
 9. . Ejectment — Equitable defence — 
 Patent obtained by fravd. 
 
 An equitable defence in ejectment must 
 do more than displace the plaintiff's legal 
 title. It must show that the defendant 
 is himself, of right, entitled to some inter- 
 est, which gives him a right to attack the 
 plaintiff's legal title. 
 
 A plea attacked the patent under which 
 the plaintiff claimed as having been ob- 
 
 tained by fraud, but did not show that, if 
 the patent were set aside, the defendant 
 woiild be entitled to possession. 
 
 Held, that the plea was bad. London 
 and Canadian Loan and Agency Co. v. 
 Moffat, 3 M.R. 249. 
 
 10. Good in part and bad in part — 
 
 Demurrer — Plea to several counts, one of 
 which is good. 
 
 When a plea is pleaded to several counts 
 or breaches and is bad as to some of them 
 upon demurrer it is bad altogether. It 
 cannot be construed distributively under 
 the C.L.P. Act. Robertson v. City of Win- 
 nipeg, QM.H. 483. 
 
 11. Indorsement of Cheque — Demur- 
 rer. 
 
 Action for non-payment of cheques. 
 
 The second count alleged the drawing 
 of a cheque, payable to O., that the cheque 
 was delivered to O. in payment of debt 
 due O. from the plaintiff, "and the said O. 
 being the lawful holder of the said cheque, 
 and entitled to receive the amount thereof, 
 duly presented," &c. Plea, that the 
 cheque was not dehvered to O. in pay- 
 ment of a debt. 
 
 Held, plea bad. 
 
 The fourth count alleged the drawing of 
 a cheque payable to the order of the Union 
 Bank of Lower Canada, who presented it, 
 &c. Plea, that the said Bank did not 
 indorse the cheque to the defendants, and 
 refused to indorse it. 
 
 Held, plea good. Todd v. Union Bank 
 of Lower Canada, 1 M.R. 119. 
 
 12. Interpleader bill — Demurrer — De- 
 fendant's titles not shown. 
 
 The biU stated that the plaintiff agreed 
 with A and B to purchase from theni cer- 
 tain land upon certain terms; that he had 
 paid them a portion of the purchase 
 money; that A claimed the balance, and 
 that B and X also claimed it. 
 
 Held, upon demurrer for want of equity, 
 that the bill sufficiently disclosed the na- 
 ture of the opposing claims. Tees v. 
 Spence, 3 M.R. 430. 
 
 13. Joint obligors — Demurrer. 
 Action on a joint bond against three 
 
 defendants. The declaration revealed the 
 fact that five persons were liable jointly 
 with the defendants. 
 
 Held, that, as the declaration did not 
 show that these others had sealed the bond, 
 and were resident within the jurisdiction, 
 
853 
 
 PLEADING. 
 
 854 
 
 the defendant should have pleaded the 
 non-joinder in abatement, and not have 
 demurred. Moore v. Fortune, 2 M.R. 28. 
 
 14. Mechanics' and Wage Earners' 
 Lien Act, R.S.M. 1902, c. 110, s. 45. 
 
 Under section 45 of The Mechanics' 
 and Wage Earners' Lien Act, R.S.M. 1902, 
 c. 110, and the form No. 7 in the schedule 
 of forms appended to the Act, it is per- 
 missible for a defendant, in an action under 
 that Act, to plead that the hen asserted by 
 the plaintiff was not filed, and that the 
 proceedings had not been instituted, 
 within the time required by law, but not 
 that the plaintiff was not entitled to said 
 hen which is only an allegation of a con- 
 clusion of law. Imperial Elevator Co. v. 
 Welch, 16 M.E. 136. 
 
 16. Misrepresentation as to some- 
 thing that would take place in the 
 future not sufficient to found action. 
 
 — Demurrer — Action of deceit. 
 
 In an action of deceit it is not sufficient 
 for the plaintiff to allege a misrepresenta- 
 tion by defendant as to something to take 
 place in the future, as, for example, that a 
 store to be leased by the plaintiff from the 
 defendant would be vacant at a certain 
 date; and, if, in such a case, the plaintiff's 
 inability to get possession of the store at 
 such date was caused by the defendant 
 having given a prior lease to another 
 party, the statement of claim should speci- 
 fically allege the concealment of , such 
 prior lease as the ground of action. Smythe 
 V. Mills, 17 M.R. 349. 
 
 16. Nul tiel record to foreign judg- 
 ment. 
 
 The plea of nul tiel record is not apphc- 
 able to a declaration upon a foreign judg- 
 ment. Hill V. Bowe, 3 M.R. 247. 
 
 17. School trustees— Aciion by teacher 
 ■ — Contract. 
 
 The first count of the declaration set out 
 that, in consideration that plaintiff would 
 enter into the service of defendants and 
 serve them for one year .... in the 
 capacity of school-teacher, at $300 a year, 
 to be paid, &c., and lodgings, fuel and hght 
 to be furnished, &c., the defendants 
 promised to retain the plaintiff in the 
 capacity, &c. It further alleged the plain- 
 tiff's entry into the service, &c., and wrong- 
 ful dismissal. 
 
 The second count was an indebitatus 
 count for work done, as a school-teacher 
 and otherwise. 
 
 The defendants demurred. 
 
 Held, 1. The wrongful dismissal of a 
 teacher is a matter "connected with his 
 duty," within the Manitoba School Act, 
 s. 93, and consequently not the subject of 
 an action, but of arbitration only. 
 
 2. The first count was bad, inasmuch 
 as it did not allege the agreement to be in 
 writing and under seal or excuse the want 
 of a seal. 
 
 3. The second count was bad because 
 the moneys, although under the direction 
 of the trustees, are not in their hands, but 
 in those of the secretary-treasurer. Pear- 
 son V. School Trustees of Catholic School 
 District of St. Jean Baptiste Centre. 2 M.R. 
 161. 
 
 18. Several pleas — Pleading a number 
 of pleas together — General Rule No. 5. 
 
 Held, under genera] rule 5 of the Court 
 of Queen's Bench for Manitoba any num- 
 ber of pleas may be pleaded together with- 
 out a judge's order. Allen v. Dickie, 2 
 M.R. 61. 
 
 19. When action at issue — Amend- 
 ment of pleading — Application for special 
 jury — King's Bench Act, Rule 301 — Jury 
 Act, s. 60. 
 
 When the statement of defence has been 
 amended, an action is not at issue, under 
 Riile 301 of the King's Bench Act, until 
 the expiration of ten days from the dehvery 
 of the amended statement of defence, and 
 an apphcation for a special jury may, 
 under^section 60 of the Jury Act, be made 
 within six days after the expiration of such 
 ten days. Brown v. Tehgram Printing 
 Co., 21 M.R. 775. 
 
 See Arbitration and Award, 12. 
 
 — Bailment, 3. 
 
 — Bills and Notes, VIII, 9, 13. 
 
 — Bond. 
 
 • — • Chattel Mortgage, V, 6. 
 
 — Company, III, 4; IV, 4, 11, 14. 
 
 — Contract, VIII, 4. 
 
 — County Court, II, 6. 
 
 — Demurrer. 
 
 — Duress, 2. 
 
 — Election Petition, IV, 4. 
 
 — Evidence, 12. 
 
 — Examination for Discovery, 15. 
 
 — Executors and Administrators, 1. 
 
 — Expropriation of Land, 3. 
 — ■ Felon. 
 
 — Fire Insurance, 1. 
 
 — Foreign Judgment, I, 4, 5, 6. 
 
 — Fraudulent Conveyance, 17, 18. 
 
 — Fraudulent Preference, II. 
 ^- Garnishment, I, 10. 
 
855 
 
 PLEADING OVER. 
 
 856 
 
 See Illegality, 3. 
 
 — Indemnity, 3. 
 
 — Infant, 7. 
 
 — Injunction, IV, 5. 
 
 — ' Judicial District Boards, 1. 
 
 — Jurisdiction, 2. 
 
 — Landlord and Tenant, I, 2. 
 
 — Libel, 1, 4. 
 
 — Livery Stable Keeper, 1. 
 
 — Master and Servant, IV, 2. 
 
 — Mechanic's Lien, IV,, 1; VI, 2, 
 
 — Mortgagor and Mortgagee, VI, 8. 
 
 — Municipality, III, 2, 3. 
 
 — NuL Tiel Record, 1. 
 
 — Parties to Action, 2, 5, 8. 
 
 — Payment by Cheque. 
 
 — Practice, XXVIII, 31. 
 
 — Railways, II, 2. 
 
 — RealProperty Act, I, 6; 111,4,6,6; 
 
 V,l. 
 
 — Replevin, 3. 
 
 — Sale op Goods, VI, 3. 
 
 — Sale op Land for Taxes, V, 2: 
 
 VIII, 1. 
 —7 Summary Judgment, II, 1, 2, 4. 
 
 — Taxes. 
 
 — Vendor and Purchaser, IV, 1, 5, 11; 
 
 VI, 1, 4, 11, 16; VII, 11. 
 
 — Winding-up, I, 1. 
 
 — Workmen's Compensation for In- 
 
 juries Act, 4. 
 
 tiffs' judgment, for in that the other 
 holders had no interest. 
 
 Upon appeal. 
 
 Held, that, having regard to the sur- 
 rounding circumstances, the plaintiffs 
 were not pledgees of the bonds; and that 
 no obligation arose upon them until 
 after sale of them by the plaintiffs under 
 their power. West Cumberland Iron & 
 Steel Co. v, Winnipeg & Hudson's Bay 
 Railway Co., 6 M.R. 388. 
 
 POKER. 
 
 iSee Criminal Law, XVI, 3. 
 
 POLITICAL CRIME. 
 
 See Extradition, 6. 
 
 POOL ROOM— REGULATION OF 
 
 See CoNSTSiTUTioNAL Law. 
 — ^ Municipality, VII, 6. 
 
 PLEADING OVER. 
 
 See Pleading, X, 1. 
 
 PLEDGE. 
 
 Deposit — Collateral security — Multi- 
 fariousness. 
 
 As collateral security for the payment 
 of certain acceptances, the defendants 
 deposited with the plaintiffs certain of 
 the defendants' mortgage bonds, with 
 power of sale in case of default. After 
 default and recovery of judgment upon 
 the acceptances, plaintiffs filed their 
 bill on behaM of all holders of similar 
 bonds for a receiver and for sale of the 
 railway. 
 
 Held, per Bain, J. 1. That the legal title 
 in the bonds did not pass to the plain- 
 tiffs, but that they were pledgees merely. 
 Their remedy was a sale of the bonds, 
 and not a sale of the railway. 
 
 2. That the bill was multifarious in 
 basing the right to a receiver upon plain- 
 
 POSSESSION. 
 
 iSee Agreement for Sale or Land, 2. 
 
 — Chattel Mortgage, III, 1, 2; V, 3. 
 
 — Contract, III, 1, 2. 
 
 — Ejectment, 1. 
 
 — Equitable Mortgaqe. 
 
 — Fraudulent Judgment, 3. 
 
 — Gift, 2. 
 
 — Negligence, VII, 2. 
 
 — Principal and Agent. 
 
 — Real Property Limitation Act, 3, 4. 
 
 — Rectification of Deed, 2. 
 
 — Trespass. . 
 
 POSSESSION OF GOODS. 
 
 Fire — Ownership of hay cut on Crown 
 lands without permission. 
 
 Where a person, without any lease, 
 permission or authority, cuts hay on 
 the vacant land of another person, or 
 of the Crown, and puts it up in stacks 
 on the land, and does not remain in 
 actual or de facto possession of the hay 
 so put up, he has no property in it while 
 
857 
 
 POSSESSION OF GOODS STOLEN ABROAD. 
 
 858 
 
 there, and no right of action for damages 
 for its destruction, though that be the 
 result of the wrongful or negligent con- 
 duct of some other jperson. 
 
 The actual possession of goods at the 
 time, or such use and control as the 
 nature of the subject admits of, is prima 
 facie evidence of ownership to found an 
 action for damages. Gaudry v. C.P.B, 
 11 M.R. 69. 
 
 POSSESSION OF GOODS STOLEN 
 ABROAD. 
 
 See Criminal Law, XVII, 9. 
 
 I POSSESSION OF LAND. 
 
 ! Ceown Lands, 1. 
 
 Fences. 
 
 ORTGAi 
 
 IV, 1, 2; VI, 5, 13. 
 Public Parks Act. 
 Railways, V, 5; VII, 2. 
 Vendor and Purchaser, VI, 1, 12, 
 
 14, 15; VII, 8. 
 
 POSTPONEMENT OF TRIAL. 
 
 See Costs, XIII, 18. 
 
 — Criminal Law, XIV, 2. 
 
 — Evidence, 9. 
 
 POUNDAGE. 
 
 See Sheriff, 1. 
 
 POWER OF APPOINTMENT. 
 
 General or limited— Execution against 
 donee of power. 
 
 R. G. being the owner of certain lands, 
 and M. G. (his wife) being the owner of 
 certain other lands, they joined in a 
 conveyance of them to a trustee. The 
 conveyance (22nd July, 1884) recited 
 that it had been agreed to settle the 
 lands " for the benefit of themselves 
 and their children," as thereinafter ap- 
 peared. The trusts declared were to 
 hold to such uses as R. G. and M. G. or 
 
 the survivor of them should by deed or 
 will appoint and; secondly, imtil and in 
 default of appomtment to the use of 
 M. G. for life, and after her decease to 
 the use of R. G. for life, and after the 
 decease of both to the use of their chil- 
 dren in equal shares. 
 
 By a subsequent conveyance (18th 
 November, 1885) R. G. and M. G. 
 appointed and conveyed the lands to 
 R. G. upon the foUowiug trusts : — to 
 the use of the children, with power to 
 R. G. to appoint among them ; in de- 
 fault of appointment and after the death 
 of R. G., to M. G. for life, with power to 
 her to appoint among the children ; 
 and in default of such appointment to 
 the children then living. 
 
 By deed (8th February, 1888), R. G. 
 and M. G. appointed and conveyed to 
 P., one of the children. 
 
 Held, 1. That the power of appoint- 
 ment in the first deed was general, and 
 not limited, as to its objects, to the 
 children. 
 
 2. That the second deed, thereforej 
 was a good appointment and vested 
 the legal estate in R. G., and the equit- 
 able in the children, with power to trans- 
 fer this latter estate to one or more of 
 the children. 
 
 3. That executions against R. G., 
 between the first and second deeds, 
 did not affect the title of P., the grantee 
 under the third deed. Be Patterson, 
 5 M.R., 274. 
 
 POWER OF ATTORNEY. 
 
 See Married Woman, 2. 
 
 POWER OF REVOCATION. 
 
 See Deed of Settlement. 
 
 POWER OF SALE. 
 
 : Mortgagor and Mortgagee, III: 
 IV, 1; VI, 13. 
 
 POWER TO SELL AND PLEDGE 
 BONDS. 
 
 See Railways, IX, 2. 
 
859 
 
 POWERS OF CORPORATION. 
 
 86'0 
 
 POWERS OF CORPORATION. 
 
 See CoBPOBATiON, 6. 
 
 POWERS OP COURT. 
 
 See Costs, XIII, 20. 
 
 POWERS OF DIRECTORS. 
 
 See Master and Sebvant, IV, 4. 
 
 POWERS OF MUNICIPAL CLERK. 
 
 See Municipal Elections, 5.' 
 
 POWERS OF PROVINCIAL LEGIS- 
 LATURES. 
 
 See Pbovincial Legislatubes — Powers 
 
 OF. 
 
 
 PRACTICE. 
 
 I. 
 
 Affidavit. 
 
 II. 
 
 Amendment. 
 
 III. 
 
 Appeal. 
 
 IV. 
 
 Examination pok E>iscoveey. 
 
 V. 
 
 Ex Pabte Ordbes. 
 
 VI. 
 
 Interkogatories. 
 
 • VII. 
 
 Irregularity. 
 
 VIII. 
 
 Issue of Execution. 
 
 IX. 
 
 Joinder. 
 
 X. 
 
 Judgment. 
 
 XI. 
 
 Motion for Judgment. 
 
 XII. 
 
 New Trial. 
 
 XIII. 
 
 Notice of Appeal. 
 
 XIV. 
 
 Notice of Motion. 
 
 XV. 
 
 Notice op Trial. 
 
 XVI. 
 
 Particulars. 
 
 XVII. 
 
 Parties to Action. 
 
 XVIII. 
 
 Sale by the Court. 
 
 XIX. 
 
 Service op Process. 
 
 XX. 
 
 Setting Aside Executions, 
 
 
 Judgments and Orders. 
 
 XXI. 
 
 Stay of Proceedings. 
 
 XXII. 
 
 Striking Out Defence. 
 
 XXIII. 
 
 Striking Out Pleadings. 
 
 XXIV. 
 
 Substitutional Service. 
 
 XXV. 
 
 Summary Judgment. 
 
 XXVI. 
 
 Third Party Procedure. 
 
 XXVII. 
 
 Transfer' from Other 
 
 
 Courts to King's Bench. 
 
 XXVIII. 
 
 Miscellaneous Cases. 
 
 I. Affidavit. 
 
 1, Filing — Motion to take bill off files 
 — When to be' made — Judge's Chambers 
 — Notice' of Motion — Beading affidavit 
 filed prior to notice. 
 
 A motion by tlie defendant to take 
 a bill off the files is properly made in 
 Judge's Cbambers. 
 
 A notice of motion stated that certain 
 affidavits would be read, but did not 
 state the date of the filing. One affidavit 
 was filed prior to the date of the notice 
 of motion. The opposite party filed 
 affidavits in reply and gave notice of 
 filing. 
 
 Held, that the affidavit filed prior 
 to the notice of motion might be read. 
 Fuller V. Starkey, 8 M.R. 400. 
 
 • 2. Of service. 
 
 Affidavit of service must shew that 
 indorsements on writ are on copy served. 
 Bi-sson v. Sinnott, 1 M.R. 26. 
 
 3. Of service of specially endorsed 
 writ. 
 
 An affidavit of service stated that 
 the deponent had served defendant with 
 a copy of the writ annexed to the affidavit, 
 upon which, as also upon the copy served, 
 was endoised " a notice of the name and 
 residence of the attorney by whom the 
 said writ was issued, and English notice 
 of claim, particulars of claim, and notice 
 in case of non-appearance of said de- 
 fendant according to the statute in that 
 case made and provided." The writ 
 annexed to the affidavit was specially 
 endorsed. 
 
 Held, that there was sufficient proof 
 that the copy served was also specially 
 endorsed. McDonald v. Deacon. 4 M.R. 
 452. 
 
 II. Amendment. 
 
 1. Estoppel by judgment— Misfafce 
 by attorney as to legal effect of signing final 
 judgment far part of claim as a waiver 
 of residue — Discretion to permit amend- 
 ment. 
 
 To a declaration on a special count 
 upon a contract for hiring and the com- 
 mon counts, the defendant pleaded never 
 indebted and a number of other pleas, 
 and in each plea he excepted $450, parcel, 
 &c. The plaintiff signed final judgment 
 for the $450 and filed a joinder of issue, 
 and gave notice of trial for the remainder 
 of his claim. On an application by the 
 defendant to stay the proceedings as 
 
861 
 
 PRACTICE. 
 
 862 
 
 to the balance forever, or for leave to 
 plead the signing of the final judgment, 
 it appeared that the plaintiff's attorney 
 in signing final j^udgment did nbt intend 
 to abandon the e'j^cess of his daim over 
 $450, but acted under a misapprehension 
 of the effect of that proceeding. The 
 Referee made an order giving the plaintiff 
 leave to aniend his judgment and make 
 it- interlocutory only. The defendant 
 appealed. 
 
 Held, that there was jurisdiction to 
 make the order, and it was rightly made. 
 Smart v. Moir, 7 M.R. 565. 
 
 2. Matters arising pending action — 
 
 Breach of covenant occurring after commence- 
 ment of action — King's Bench Act, B.S.M. 
 1902, c. 40, Rides 2SQ-S40— Striking out 
 amendments made under order afterwards 
 set aside on appeal. 
 
 There is nothing in Rule 340 of the 
 King's Bench Act to warrant the amend- 
 ment of the statement of claim by setting 
 up matters which have arisen since 
 the commencement of the action except 
 by way of answer to a counterclaim set 
 up by the defendant. That Rule confers 
 on the Court no new power of amend- 
 ment but merely defines the procedure 
 to be followed in exercising powers of 
 amendment which exist apart from it 
 and as to which the procedure is not 
 pointed out by the rules preceding it. 
 
 Take v. Andrews, (1882) 8 Q.B.D. 432, 
 distinguished. 
 
 The Referee having previously made 
 an order allowing, such an amendment 
 to be made, the plaintiff made the amend- 
 ments without waiting for the expir- 
 ation of the time for appeaUng, 
 
 Held, that this was no reason for dis- 
 allowing the appeal which was made 
 within the time allowed by the rules. 
 Speton V. Gilmour, 14 M.R. 706. 
 
 3. Parties to action — Contract made 
 on behalf of company to be formed. 
 
 Defendant contracted to sell and 
 deliver to plaintiff all the bricks he 
 should make during the year. It was 
 stated in the contract that plaintiff 
 entered into it on behalf of a company 
 to be afterwards incorporated under 
 the name of the Manitoba Construction 
 Company. After the incorporation of 
 such company the plaintiff brought this 
 action in his own name for an injunction 
 to restrain defendant from committing 
 breaches of the contract and for damages 
 for breaches already committed. 
 
 Held, that the plaintiff should not 
 be allowed to amend his statement of 
 claim by adding the company as co- 
 plaintiff. Cass V. McCutcheon, 15 M.R. 
 667. 
 
 4. Parties to Action — Trustee and bene- 
 ficiary — Contract made on behalf of com- 
 pany to be formed. 
 
 The facts being as stated in the head 
 note to the decision in this case reported 
 above. ' 
 
 Held, that the plaintiff should not be 
 allowed to amend his statement of claim 
 by adding claims for damages for himself 
 as trustee for the Manitoba Construction 
 Company and also for the company as 
 cestui que trust. 
 
 Cases in which it has been held that a 
 trustee may enter into a valid contract 
 on behalf of a cestui que tru^t not in exist- 
 ence at the time, as, for example, an 
 unborn child, distinguished. Cass v. 
 McCutcheon, 15 M.R. 669. 
 
 See Amendment. 
 
 III. Appeal. 
 
 1. Cross-appeal — King's Bench Act, 
 RuU 652 (o) — Belief against party not an 
 appellant. 
 
 Rule 652 (a) of The King's Bench Act, 
 R.S.M. 1902, c. 40, does not apply when 
 the party against whom the respondent 
 in an appeal seeks relief is not an appellant. 
 
 It is not sufficient in such a case for the 
 respondent to serve upon such non-appeal- 
 ing party a notice under said Rule, but he 
 must set down a substantive cross-appeal. 
 Bent V. Arrowhead Lumber Company, 18 
 M.R. 277. 
 
 2. From County Court — Amendment 
 ofprcecipe. 
 
 The defendant's praecipe to set down 
 an appeal was inadvertently filed one day 
 too late under section 320 of the. County 
 Courts Act; it did not set out clearly the 
 nature of the appUcation intended to be 
 made as required by section 321, but 
 merely that defendant appealed "from 
 the judgment of Thomas Ryan, Esq., 
 County Court Judge, delivered in a cer- 
 tain suit," between the plaintiff and de- 
 fendants, "and in which a judgment was 
 entered for plaintiff for $20," the real 
 name of the Judge being Joseph Ryan. 
 
 Held, that, under section 327 of the 
 Act, upon payment of $5 costs the prsecipe 
 might be amended so as to specify clearly 
 
863 
 
 PRACTICE. 
 
 864 
 
 the relief asked for, and that under section 
 328 the appeal might be heard, notwith- 
 standing the objection as to time, as the 
 respondent could not be prejudiced there- 
 by. Broughton v. Hamilton Provident 
 Society, 10 M.R. 683. 
 
 3. From County Court— Q.B. Act, 
 1895, Ride 168 (6), (d). 
 
 When an appeal from a County Court 
 is set down for hearing before the FuU 
 Court, a motion to strike it out must be 
 made under Rule 168 (h) of the Queen's 
 Bench Act, 1895, within the time there 
 limited, and no objections to the proceed- 
 ings and steps leading up to the appeal 
 can be entertained at the hearing: Rule 
 168 (d). Kirchhoffer v. Clement, 11 M.R. 
 460. 
 
 4. From Referee — Time for 
 Prompt issue of execution — Waiver of ir- 
 
 Held, 1. An appeal from the Referee 
 must be brought on for hearing within 14 
 days frora the issuing of the order. 
 
 2. A party entitled to costs may pro- 
 ceed to collect the same by execution 
 immediately after taxation; the practice 
 of the court does not require that any time 
 be given for payment. 
 
 3. An irregularity may be waived in 
 equity, as at law, by delay, or by taking 
 a step in the cause after knowledge of the 
 irregularity. Wood v. Wood, 2 M.R. 87. 
 
 5. To Supreme Court — Costs — Exe- 
 cution after notice — Sheriff's poundage — 
 Making order of Supreme Court a judgment 
 of the. Court behw. 
 
 1. A plaintiff is justified under Rule 683 
 of The Queen's Bench Act, 1895, in issuing 
 executions and certificates of judgment 
 immediately on judgment being entered 
 notwithstanding defendant has given 
 notice of appeal to the Supreme Court; 
 and, although, upon the perfecting of the 
 security for the appeal,, an order has been 
 made setting aside the executions, the 
 plaintiff is entitled, after dismissal of 
 the appeal, to the costs of the executions 
 and certificates. 
 
 Clarke v. Creighton, (1890) 14 P.R. 34, 
 followed. 
 
 2. The order setting aside the execu- 
 tions having reserved the question of the 
 sheriff's fees, but made no reference to 
 poundage, such cannot be ordered after- 
 wards in view of section 48 of The Supreme 
 Court Act, R.S.C., c. 135. 
 
 3.- It is doubtful whether it is necessary 
 to make the judgment of the Supreme 
 Court an order of this Court for any pur- 
 pose when the appeal is simply dismissed, 
 and at any rate the costs of an application 
 ,to do so should not be given when not so 
 ordered upon the application. Day v. 
 Rutledge, 12 M.R. 4:51. 
 
 IV. Examination for Discovery. 
 
 1. Appeal from County Court— /Stay 
 of proceedings — Transfer from County Court 
 to Queen's Bench. 
 
 When an action has been transferred tc 
 the Court of Queen's Bench by an order of 
 the Judge of the County Court under 
 section 86 of the Queen's Bench Act, 1895, 
 there is no longer . any cause, . matter or 
 proceeding pending in the County Court; , 
 and the filing of an affidavit of intention 
 to appeal from the order under section 
 317 of the County Courts Act will not have 
 the effect of staying the proceedings in the 
 Queen's Bench. 
 
 On motion to commit the defendant or 
 to- strike out his defence because of his 
 failure to attend and submit to examinar 
 tion for discovery, defendant objected 
 that by his affidavit of intention to appeal 
 a;ll proceedings in the Queen's Bench were 
 stayed. 
 
 Held, following Harris v. Judge, [1892] 
 2 Q.B. 565, and Moody v. Steward, L.R. 6 
 Ex. 35, that there was no stay of proceed- 
 ings. 
 
 The affidavit of service of the appoint- 
 ment and subpcen'a showed that the de- 
 fendant was personally served "with a 
 true copy of the subpoena hereunto an- 
 nexed marked B, and of the said appoint- 
 ment marJiedA, by delivering such appoini- 
 ment to and leaving the same with the 
 said John F. Howard personally." 
 
 Held, that upon a motion to put a party 
 in contempt the material must be strictly 
 correct and that the affidavit of service 
 wa.s insufficient as to the subpoena. 
 
 Quoere, whfetherthe plaintiff was entitled 
 to discovery and production until he had 
 dehvered a statement of claim in the 
 Queen's Bench: Davies v. Williams, 13 
 Ch. D. .550. Doll V. Howard,. 10 M.R. 
 635. 
 
 2. Interrogatories — King's Bench Act, 
 Rule 407 B, as enacted by 5 and 6 Edw. VII, 
 c.l7,s.2. 
 
 A party may be required to answer inter- 
 rogatories dehvered pursuant to Rule 407 
 B of the King's Bench Act, as enacted by 
 
865 
 
 PRACTICE. 
 
 866 
 
 B. 2 of c. 17 of 5 & 6 Edw. VII, notwith- 
 standing that he has also been ordered to 
 attend and be examined for discovery 
 under Rule 387. 
 
 Dobson V. Dobson, (1877) 7 P.R. 256, 
 followed. Timmons v. National Life Ass. 
 Co., 19 M.R. 139. 
 
 3. Service of copy of appointment 
 instead of original — King's Bench Act, 
 Rules 391 A (1), 389. 
 
 The plaintifi's solicitor, desiring to ex- 
 amine the defendant for discovery, served 
 upon his solicitor a copy of the examiner's 
 appointment, relying on sub-rule (1) of 
 Rule 391 A, added to the King's Bench 
 Act, R.S.M. 1902, c. 40, by 5 & 6 Edw. 
 VII, c. 17, s. 2, and, upon defendant failing 
 to attend on the appointment, obtained 
 an order from the Deputy Referee direct- 
 ing the defendant to attend for examina- 
 tion at his own expense. ' 
 
 Held, on appeal from this order, that, as 
 the sub-rule speaks of the service of an 
 appointment upon the solicitor, service of a 
 copy only of the appointment was not 
 suflBcient, without service also of a sub- 
 poena on the defendant personally under 
 , Rule 389, and that the order should be set 
 aside with costs. 
 
 Meyers v. Kendrick, (1883) 9 P.R. 363, 
 followed. Foley v. Buchanan, 18 M.R. 
 296. 
 
 4. Service on solicitor — Witness fees — 
 Queen's Bench Act, 1895, Rules 381, 382, 
 390. 
 
 It is not sufficient service of an ap- 
 pointment on the soUcitor of a party 
 to be examined for discovery under 
 The Queen's Bench Act, 1895, to push 
 ' ' it under the door of his office in his tem- 
 porary absence, when it first comes 
 to his notice on his retm-n to his office 
 within 48 hours of the time set for the 
 examination, and the party in such case 
 win be excused for not attending in obed- 
 ience to a subpoena served upon him 
 for such examination. 
 
 Grand River Nav. Co. v. Wilkes, (1851) 
 8 U.C.R. 249, and McCallum v. Pro- 
 vincial Insurance Co., (1873) 6 P.R. 101, 
 followed. 
 
 Under Rule 381 of the Act, a party 
 subpoenaed to attend on such an ex- 
 amination should be paid not only his 
 railway fares or mileage both ways, 
 but also his witness fees for as many days 
 as he wiU certainly be absent from his 
 home in attending on the examination 
 and returning home. 
 
 Quoenre, whether alterations and in- 
 terlineations in a subpoena, not authen- 
 ticated by the Prothonotary, do not 
 make it invalid. Vnger v. Long, 12 M.R. 
 454. 
 
 V. Ex'Pakte Obders. 
 
 1. Certificate of state of cause 
 on obtaining ex parte injunction — 
 
 Notice of motion to continue — Waiver — 
 Equity practice. 
 
 The plaintiff obtained ex parte an 
 interlocutory injunction with leave to 
 move to continue it. He did not, on 
 the ex parte application, file a certificate 
 of the state of the cause. He also, on 
 an allegation that the defendant resided 
 abroad, and S. was his agent in this 
 province, obtained an order for substi- 
 tutional service on S. The notice of 
 motion was not only to continue the 
 injunction (for which leave had been 
 granted) but also, that an injunction 
 be issued in accordance with the prayer 
 of the biU. 
 
 The defendant served on plaintiff a 
 demand for copies of the affidavits filed 
 on the motion. 
 
 Held, 1. That it is not necessary to 
 ffle a certificate of the state of the cause 
 on obtaining an ex. parte injunction. 
 
 2. That the notice of motion asking 
 something more than leave was given 
 to ask, does not vitiate it. 
 
 3. That service of a demand for copies 
 of the plaintiff's affidavits was a waiver 
 of any objection to the mode of service 
 on defendant. McDonald v. Charlebois, 
 7 M.R. 35. 
 
 2. Order for examination of witness 
 about to leave jurisdiction. 
 
 Application to set aside an order, 
 made ex parte, for the examination of 
 B. as a witness on behalf of the plaintiff. 
 The affidavit upon which it was granted 
 stated the cause of action, that appear- 
 ance had been entered, but no declara- 
 tion filed, that B. was a material and 
 necessary witness, that he intended to 
 leave the Province on the day upon 
 which the order was made, and would 
 not return for at least six months. 
 
 Held, that, according to the established 
 practice, the order should not have 
 been made ex parte. It was therefore 
 set aside. Holmes v. C.P.R., 5 M.R. 
 346. 
 
867 
 
 PRACTICE. 
 
 868 
 
 3. For particulars of plaintifE'a re- 
 sidence, &c. 
 
 An order having been made ex parte 
 that the profession, occupation, quality, 
 and place of abode of the plaintiff should 
 be given, a summons was taken out to 
 set a^ide the same. 
 
 Held, that an order could be made 
 ex parte, in the discretion of the judge, 
 but that the correct practice was to 
 proceed by summons. 
 
 After reviewing the facts of the case, 
 the summons was discharged without 
 costs. Martel v. Dubord, 1 M.R. 174. 
 
 VI. Interrogatobibs. 
 
 1. Order for further particulars. 
 
 The plaintiffs' claim was for the price 
 of an incinerating machine bought by 
 the defendants who refused payment 
 on the ground that the machine would 
 not do the work contracted for. 
 
 In preparing for trial the plaintiffs, 
 believing it to be necessary to procure 
 information as to the quantities of the 
 different classes of refuse to be consumed 
 by the machine, dehvered interrogatories, 
 the answers to which did not satisfy 
 plaintiffs. 
 
 On plaintiffs' appeal from the order 
 of Mathers, J., sustaining an order 
 of the Referee dismissing the plaintiffs' 
 appMcation for further details of in- 
 formation to be given by defendants, 
 in answer to the interrogatories. 
 
 Held, per Howell, C.J.A., and 
 Richards, J. A., that plaintiffs were not 
 entitled on the appeal to an order requir- 
 ing the City to fiKnish estimates or 
 opinions of its officers as to the quantity 
 of manure produced throughout the City, 
 although stioh officers had means of form- 
 ing such opinions. 
 
 Per Perdue and Cameron, JJ.A., that 
 such information should be furnished. 
 
 The . Court being equally divided, the 
 appeal was dismissed without costs. 
 Decarie Manufacturing Co. v. City of 
 Winnipeg, 18 M.R. 663. 
 
 2. Relevancy of — King's Bench Act, 
 Rule 407B added by 5 & 6 Edw. VII, 
 c. 17. 
 
 The pleadings in this case raised an 
 issue whether or not the plaintiff, in 
 order to induce the defendants to enter 
 into the agreement sued on, falsely re- 
 presented to them that, by virtue of 
 his own interest and the interest of 
 
 others represented by him, he controlled 
 a certain company and could determine 
 whether the company would accept 
 the defendants' offer or not. A letter 
 had been written by the plaintiff to one 
 of the defendants before the acceptance 
 of the offer in which he spoke of other 
 parties as interested in the sale and hold- 
 ing out for a larger sum. 
 
 Held, (Richards, J. A., dissenting), 
 that interrogatories put by the defend- 
 ants to ' the plaintiff, under Rule 407B 
 added to the King's Bench Act by 5 
 & 6 Edw. VII, c. 17, s. 2, asking for 
 information as to the names of the other 
 parties referred to, and as to all com- 
 munications between them and the 
 plaintiff relating to the proposed sale, 
 were relevant to the issue and should 
 be fully answered. Affleck v. Mason, 
 21 M.R. 759. 
 
 VII. Irregularity. 
 
 1. Setting aside notice of trial — 
 
 Service on another than the attorney on 
 record — Technicality. 
 
 Where advantage is sought to be 
 taken of an alleged irregularity, and the 
 appUcation is technical and without 
 merit, the applicant should be treated 
 with the utmost strictness. 
 
 The plaintiff moved to set aside a 
 notice of trial of an issue under the Real 
 Property Act, on the ground, among 
 others, that it had been served on an 
 attorney who was not the attorney on 
 the record ; although it had been served 
 on the attorneys who then had the 
 matter in hand, and also on the acting 
 Winnipeg agents of the attorney in 
 Portage la Prairie, who had formerly 
 acted for plaintiff in the proceedings 
 prior to the order directing the issue. 
 
 Held, that to succeed in such a motion 
 the affidavits filed should have negatived 
 every other possible mode of good ser- 
 vice under the rules and practice of the 
 Court, which they did not do, and the 
 summons was dismissed with costs. Kerr 
 V. Desjarlais, 9 M.R. 278. 
 
 2. Waiver. 
 
 The failure to file declaration within 
 a year after the service of the writ is 
 only an irregularity and not a nulUty. 
 
 Such an irregularity may be waived 
 by the defendant applying for an ex- 
 tension of time to plead. Imperial Bank 
 V. OHnes, 10 M.R. 317. 
 
869 
 
 PRACTICE. 
 
 870 
 
 VIII. Issue of Execution. 
 
 1. Before confirmation of Master's 
 report. 
 
 Held, that under the usual mortgage 
 decree plaintiff has a right to issue execu- 
 tion immediately after making of Master's 
 report and before its confirmation.' Cam- 
 eron V. Mcllroy, 1 M.R. IQT. 
 
 2. Loss of writ. 
 
 Where a writ of execution after renewal 
 has been lost in transmission to the sherifi 
 through the Post Office, an order may be 
 made for the issue of a new writ nun^ pro 
 tunc to bear the same indorsements and 
 evidence of reliewal as the original writ; 
 also that the substituted writ should have 
 the same force and effect as the original. 
 White V. Lovejoy, 3 Johns, 448, and Her- 
 man on Executions, 87, followed. Douw 
 V. Burt, 1 Wend. 89, distinguished. Fair- 
 child V. Crawford, 11 M.R. 330. 
 
 IX. Joinder. 
 
 1. Of different causes of action — 
 
 Jury tried — Separate trials of different 
 causes of action — King's Bench Act, s. 59, 
 Rules 257, 263. 
 
 Under Rule 257 of The King's Bench 
 Act, R.S.M. 1902, c. 40, a plaintiff may 
 sue in the same action both for maHcious 
 prosecution and trespass, although, by 
 section 59 of the Act, the former must be 
 tried by jury unless the parties waive it, 
 whilst the latter must be tried without a 
 jury unless a judge otherwise orders, and 
 a statement of claim including both such 
 causes of action is not thereby embarrass- 
 ing or inconsistent with the rules of prac- 
 tice of the Court. 
 
 After the pleadings are closed, a plain- 
 tiff suing for both such causes of action 
 may either waive his right to a jury or 
 apply to have the trespass claim also tried 
 by a jury, and, if such appUcation fails, 
 then an application might be made, under 
 Rule 263, to exclude one of the causes of 
 action or for separate trials, but no ap- 
 phcation under the last mentioned rule 
 should be made before the cause is at issue. 
 Coates v. Pearson, 16 M.R. 3. , 
 
 2. Of defendants — Suit against two com- 
 panies -insuring same property — King's 
 Bench Act, Rule 219. 
 
 Rule 219 of the King's Bench Act, 
 R.S.M. 1902, c. .40, does not permit a 
 plaintiff to proceed in one action against 
 two separate insurance companies upon 
 
 separate policies, although they cover 
 the same goods destroyed by the same 
 fire. 
 
 Favlds V. Faulds, (1897) 17 P.R. 480 ; 
 Hinds V. Barrie, 6 O.L.R. 656, and 
 Andrews v. Forsyth, (1904) 7 O.L.R. 188, 
 followed. 
 
 A plaintiff who had commenced such 
 an action was required to elect within 
 five days which company she would 
 proceed against in the action and to 
 discontinue as, against the ■other. Levi 
 V. Phoenix Ins. Co. of Brooklyn, 17 M.R. 
 61. 
 
 X. Judgment. 
 
 1. Final Judgment — Action against 
 several defendants, one only defending — ■ 
 Discontinuance of action — King's Bench 
 Act, Rule 538. 
 
 Final ' judgment cannot be signed 
 against a defendant for want of a defence, 
 if there is an untried issue pending be- 
 tween the plaintiff and another defend- 
 ant in the same action who has entered 
 a defence. 
 
 A notice of discontinuance of an action 
 as against defendant B, served more 
 than a year after the irregular entry 
 of final judgment against defendant A, 
 is a nullity and A may, within a reason- 
 able time after the service of such notice, 
 move to set aside the judgment against 
 him. 
 
 Such a discontinuance' cannot be effected 
 under Rule 538 of the King's Bench Act 
 except under sub-section (c), and then 
 only by leave of the Comt or a Judge. 
 Macdonald v. FaircKild Co., 19 M.R. 129. 
 
 2. Motion to vary minutes. 
 
 Upon a motion to vary minutes the 
 later rule is, that the only question to 
 be argued is. What was the actual order 
 made? except in cases where both 
 parties consent, or where it cannot be 
 ascertained what order was pronounced. 
 
 By a judgment an indulgence was 
 granted upon payment of costs, but no 
 order for payment in any event was 
 pronounced. Upon speaking to the n- 
 utes this latter order was directed to 
 be inserted. Balfour v. Drummond, 4 
 M.R. 467. ' 
 
 3. Review by judge after entry — 
 
 Correction of errors in judgment as entered — 
 King's Bench Act. Rule 638 — Entry of 
 judgment. 
 
 Until the judgment pronounced in 
 an action is entered the Court has full 
 
871 
 
 PRACTICE. 
 
 872 
 
 Eower to rehear or review the case'; 
 ut, after the judgment has' been entered, 
 the Judge who pronounced it has no 
 power to amend or alter it if it correctly 
 represents the actual decision even al'-. 
 though based on a misapprehension. 
 
 In re Suffield v. Watts, (1888) 20 
 Q.B.D. 693 ; In re Lyric. Syndicate, (1900) 
 7 T.L.R. 162, and Preston v. Allsuv, 
 [1895] 1 Ch. 141, foUowed. 
 
 Clerical mistakes or accidental slips 
 or omissions may, however, be corrected 
 under Rule 638 of the King's Bench Act. 
 Munroe v. Heubach, 18 M.R. 547. 
 
 XI. Motion for Judgment.' 
 
 1. Against one of several defend- 
 ants — Special indorsement. 
 
 I An application to sign judgment against 
 one defendant will not be entertained, 
 in the absence of evidence as to the 
 position of the action with reference to 
 the others. 
 
 A writ was endorsed " to recover the 
 sum of $3,000, on a covenant contained 
 in a deed for principal and $270 for in- 
 terest thereon, also for interest on both 
 amounts at ten per- cent, per annum 
 from the first day of March last until 
 judgment." 
 
 Hel^, Not a sufficient special indorse- 
 ment. Stewart \. Richard, 3 M.R. 610. 
 
 Distinguished, London & Can. Loan 
 Co. V. Morris, 7 M.R. 129. 
 
 2. On admissions in pleading — 
 
 King's Bench Act, Rule 615. 
 
 In an action for partition or sale of 
 lands, if the defendant in his statement of 
 defence admits the plaintiff's claim in 
 respect of part of the lands, the plaintiff 
 may under Rule 615 of the King's Bench 
 Act have judgment for partition or sale 
 of the lands in respect of which the ad- 
 mission is made, without waiting for 
 the result of the litigation as to the re- 
 maining land. Kelly v. Kelly, 18 M.R. 
 362. 
 
 3. By defendant on admissions 
 in his own pleadings — King's Bench 
 Act, Rule 615 — Costs. 
 
 The words " admissions of fact in 
 the pleadings " in Rule 615 of the King's 
 Bench Act, R.S.M. 1902, o. 40, are not 
 confined to such admissions made by 
 an opposite party, and this rule may 
 be availed of by the party making the 
 admissions and an order made accord- 
 
 ingly ; and, when the defendant in his 
 statement of defence consents to the 
 relief asked for by the plaintiff and offers 
 to give the conveyance required by him, 
 such consent and offer, although strictly 
 speaking not an admission of fact should 
 be treated as one for the purposes of 
 the Rule, as its object is to save further 
 proceedings "and fxirther costs when the 
 need of trying issues is removed by ad- 
 missions. 
 
 The statement of defence, besides 
 the consent and offer referred to, denied 
 the allegations of the statement of claim. 
 
 Held, that, as defendant, by making 
 an application under Rule 615, had put 
 it out of the power of the plaintiffs to 
 prove their allegations and out of the 
 power of the Court to decide, on the 
 merits, who should pay the costs of the 
 action, the case should be treated, for 
 the purpose of awarding costs, as if 
 the defendant had admitted the truth 
 of the plaintiffs' pleadings as well as 
 submitted to the relief asked for, and 
 that the defendant should pay the main 
 costs of the action, including the costs 
 of the motion. Houghton v. Mathers, 
 14 M.R. 733. 
 
 4. 'Where defendant served by pub- 
 lication. 
 
 Held, where defendant is served by 
 pubhoation, it is necessary to move in 
 court for a decree. 
 
 2. In other cases where there is no 
 defence, or where the answer admits 
 the facts entitling the plaintiff to a 
 decree, or amounts to a disclaimer, and 
 the defendants are siti juris, decrees 
 may issue on prsecipe. Manitoba & 
 N.W. Loan Co., v. Harrison, 2 M.R. 33. 
 
 5. 'Writ served ex juris — Indorse- 
 ment of particulars. 
 
 The defendants were served out of 
 the jurisdiction with the writ prescribed 
 by the C.L.P. Act, 1852, s. 18, which 
 had indorsed thereon the following par- 
 ticulars of claim : 
 
 " To interest upon loan, from 
 plaintiffs to defendants, 
 due to 1st December, 1883, $1,088 00 
 To interest on $1,088, from 
 1st December, 1883, to 
 1st April, 1884 36 26 
 
 $1,124 26 " 
 
 On a motion for leave to enter final 
 judgment under 46 and 47 Vic, c. 23, 
 
873 
 
 PRACTICE. 
 
 874 
 
 s. 16, and the amending Act, 47 Vic, c. 21, 
 s. 7, an affidavit of service of the writ 
 and indorsements ■ was produced, and 
 other affidavits were filed proving the 
 plaintiff's claim. 
 
 Held, that an indorsement of the par- 
 ticulars of claim upon the writ would 
 sufficiently comply with the Statute, 
 but that the particulars as indorsed in 
 this case were not full enough under the 
 C.L.P. Act, 1852, and did not show 
 "fully the nature and amount of the claim 
 sued for," as required by the Statute 
 in that behajf, and the summons was dis- 
 charged. Dundee Mortgage and Invt. Co. 
 V. Sutherland, 1 M.R. 308. 
 
 XII. New Trial. 
 
 1. After dismissal at hearing, plain- 
 tifE being unready. 
 
 14th August, 1884.— Bill was filed. 
 
 30th October, 1884.— Bill amended 
 by adding a large, number of parties. 
 
 January, 1886.^3ase was or ought to 
 have been ripe for hearing. 
 
 April, 1886. — Set down for hearing 
 and postponed. 
 
 June, 1886. — Set down and postponed 
 by plaintiff, defendant D. being a neces- 
 sary witness and having left the Pro- 
 vince, although subpoenaed. 
 
 September, 1886. — Set down and post- 
 poned, D. not having returned. 
 
 January, 1887. — Set down and post- 
 poned, D. not having returned and B., 
 the plaintiff's agent, also a necessary 
 witness, being absent although subpanaed, 
 and having neglected to attend upon 
 an appointment to take his evidence de 
 bene esse. 
 
 31st March, 1887.— Set down, post- 
 ponement, refused, although D. and B. 
 absent : D. meanwhile had been in the 
 province. 
 
 4th April, 1887. — Question of costs 
 argued. 
 
 7th April, 1887. — B. returned to the 
 City. 
 
 19th April, 1887. — Defendants, by leave 
 of Judge, notified plaintiffs that, unless 
 by this date decree agreed to. Judge 
 would make decree. 
 
 25th April, 1887. — Petition served for 
 leave to set down anew for hearing. 
 
 26th April, 1887. — ^Another sittings 
 held, case, of course, not set down. 
 
 Defendants did not show eristence of 
 any injury to them by reason of delay. 
 
 Held, 1. Under all the circumstances 
 set out in the judgment, that leave should 
 
 be given to set down again upon payment 
 of costs of the day and the petition. 
 
 2. The engagements of a witness 
 coupled with shortness of notice may 
 form an excuse for non-attendance upon 
 subpoena. 
 
 3. The negligence of plaintiff's solicitor 
 in not procuring evidence may form a 
 ground for an extension of time for 
 hearing. Balfour v. Drummond, 4 M.R. 
 388. 
 
 2. Jury fee, after order for. 
 
 49 Vic, c. 4, s. 2, (Man.) provides that: 
 " No civil cause shall be entered to 
 be tried by a jury, or shall be tried by 
 a jury, until the party requiring the jury 
 shall have deposited with the sheriff 
 the sum of S25, to be applied towards 
 the payment of jurors and shall have 
 filed with the Prothonotary the sheriff's 
 receipt for the $25." The defendant 
 complied with this enactment. The action 
 was tried with a jury and a verdict 
 rendered for the defendant. A new 
 trial was ordered in Term. The defend- 
 ant did not pay in any further sum. 
 The plaintiff then moved to strike out 
 the jury notice. Bain, J., made the 
 order. The defendant applied to re- 
 verse the order. Per Curiam. — ^Appli- 
 cation allowed with costs. A second 
 payment was not necessary. Elliott v. 
 Wilson, 6 M.R. 63. 
 
 3. Mistake of solicitor — Costs. 
 
 On an application to a single Judge 
 in Court under Rule 654, Q. B. Act, 
 1895, to set aside a verdict obtained 
 by plaintiffs at a postponed trial in the 
 absence of defendant's counsel, it was 
 shown that he had not attended on the 
 postponement owing to a misappre- 
 hension, not attributable to negUgence, 
 as to the date to which the trial had been 
 postponed, and that it had always been 
 the intention of defendant to defend the 
 action. 
 
 Held, that the application should be 
 granted on the terms that the costs of 
 the day should be costs to the plaintiffs 
 in any event, and that the costs of the 
 application should be costs to the plain- 
 tiffs in the cause. Pollock v. Goldstein, 
 10 M.R. 631. 
 
 XIII. Notice op Appeal. 
 
 1. Form of motion before Full 
 Court. 
 
 A notice of motion to the Full Court 
 to set aside the verdict of a single Judge 
 
875 
 
 PRACTICE. 
 
 876 
 
 stated that the plaintiff " has this day- 
 set down this cause for re-hearing," &c. 
 
 Held, a sufficient notice. Miller v. 
 Morton, 8 M.R. 1. 
 
 2. Form of notice of re-hearing. 
 
 A decree having been, made in favor 
 of the plaintiffs, the defendants properly- 
 entered the cause for rehearing before 
 the Court in banc, and gave the folio-w- 
 ing notice : " Take notice that I have 
 this day entered this cause for rehearing 
 before the Full Court in order that the 
 decree herein dated, &c., may be wholly 
 discharged," &c.> 
 
 Held, the notice was goodl Dundee 
 Mortgage Co. v. Peterson, 6 M.R. 65. 
 
 3. Form of notice of appeal from 
 verdict of single Judge. 
 
 A verdict having been rendereid for 
 the plaintiff, the defend-ant properly 
 filed a pracipe requiring the cause to 
 be set down for rehearing before the 
 Court in bano, and gave the following 
 notice to the other side : " Tajsp notice 
 that the defendants wiU apply by way 
 of appeal to the FuU Court from the 
 decision of Mr. Justice Dubuc in this 
 cause,"' setting out the grounds of appeal. 
 Held, the notice was insufficient. 
 Simpson v. McDonald, 6 M.R. 302. 
 
 XIV. Notice of Motion. 
 
 1. To compel -witness to ans-wer — 
 
 Notice of reading examiner's certificate. 
 
 On a motion to compel a party to a 
 suit to answer questions that he had 
 refused to answer on an examination 
 on the pleadings, the notice of motion 
 must state that the certificate of the 
 examiner, as well as the examination, 
 will be read, although those .two docu- 
 ments may be embodied in one. 
 
 Depositions being read upon a motion 
 contained certain questions to which 
 there appeared no answers other than 
 as follows : " Witness on advice of coun- 
 sel refused to answer." 
 
 Held, that there was not sufficient 
 evidence of refusal to answer the ques- 
 tions. West Cumberland Iron and Steel 
 Co. v. Winnipeg and Hudson's Bay By. 
 Co., 7 M.R. 504. 
 
 2. Short leave — Notice of — Demurrer 
 — Appeal from single Judge — Material 
 required — Bute issued through inadver- 
 tence — Bescinding. 
 
 Where leave was given to move next 
 day to rescind a rule of Court, a notice 
 
 of motion which stated that by leave 
 this day given an apphcation would be 
 made to the Court next morning was 
 held sufficient. 
 
 On an appeal from the decision of 
 a single Judge allowing a demurrer, it 
 is not necessary to verify the proceed- 
 ings. The demurrer book, bearing the 
 Judge's endorsation of the demurrer 
 being allowed, and the entry in the 
 clerk's book furnish sufficient material. 
 
 Where the Court had struck out an 
 appeal under a misapprehension, the 
 rule dismissing it was rescinded as 
 having been issued through inadvertence. 
 Sparham v. Carley, 7 M.R. 611. 
 
 XV. Notice op Trial. 
 
 1. By defendant. 
 
 Held, that a defendant can give 
 notice of trial, although plaintiff not in 
 default. Moore v, Forturd, 2 M.R. 94. 
 
 2. By defendant — Non-suit where 
 plaintiff does not appear. 
 
 A defendant may pass and enter the 
 record, and give notice of trial for the 
 Assizes, as well as for any Tuesday. 
 
 Where the plaintiff does not appear 
 at the trial a non-suit may properly be 
 entered. The defendant is not, in such 
 case, entitled to a verdict. Colder v. 
 Dancy, 4 M.R. 25. 
 
 3. Remanet. 
 
 A record was entered for the Spring 
 Assizes in Winnipeg in 1883, and made 
 a remanet. At the Autumn Assizes it 
 was placed on the docket by the Protho- 
 notary. No. one appeared for the plain- 
 tiff, but defendant's counsel insisted 
 upon a verdict being given in his favor. 
 
 Held, that a new notice of trial was 
 necessary, and the verdict was set aside 
 with costs. Bobinson v. Hutchins, 1 
 M.R. 122. 
 
 XVI. Particulaks. 
 
 1. Order for after pleadings closed. 
 
 Per Mathers, J., dismissing an appeal 
 from DuBtic, C. J., Richards, J., dis- 
 senting. 
 
 Particulars will not be ordered after 
 the close of the pleadings unless under 
 special circumstances. That was the 
 rule in this Court prior to the Judi- 
 cature Act, and there is nothing in the 
 King's Bench Act or Rules to change 
 the practice in that regard. 
 
877 
 
 PRACTICE. 
 
 878 
 
 Smith V. Boyd, (1897) 17 P.R. 467, 
 followed. 
 
 Under the English Rules, Order 19, 
 Rules 6 and 7, particulars are treated 
 as amendments of the pleadings, but 
 our Act and Rules contain nothing, cor- 
 responding to those English Rules. If 
 the party seeking particulars has ex- 
 amined the opposite party for discovery 
 and failed to get them, that might be 
 treated as a special circumstance war- 
 ranting the order ■.Bank of Toronto 
 V. Ins. Co. of N. A., (1897) 18 P.R. 29. 
 V. C.P.R., 16 M.R. 376. 
 
 2. Order for, when and for what 
 purpose made after the close of the 
 pleading. 
 
 After the close of the pleadings par- 
 ticulars will only be ordered when it 
 is shown by affidavit, or otherwise, 
 independently -of the . pleadings, that 
 they are required for the purpose of 
 saving expense or preventing surprise 
 at the trial. 
 
 Smith V. Boyd, (1897) 17 P.R. 463 ; 
 Gouraud v. Fitzgerald, (1889) 37 W.R. 
 55, and Bank of Toronto v. Ins. Co. of 
 North America, (1897) 18 P.R. 27, 
 followed. Rat Portage Lumber Co. v. 
 Equity Fire Ins. Co., 17 M.R. 33. 
 
 3. Order for, after close of plead- 
 ings — Particulars of charge of misconduct — 
 Partnership action — Examination for dis- 
 covery. 
 
 After the close of the pleadings par- 
 ticulars are only required for the purpose 
 of limiting the issues at the trial and wiU 
 not be ordered until after discovery, 
 and not then if the discovery results 
 in full disclosure. 
 
 The particulars disclosed at an ex- 
 amination for discovery are as binding 
 on the party discovering as they would 
 be if delivered in the form of a pleading. 
 Kelly V. Kelly, 18 M.R. 331. 
 
 4. In libel action — Examination for 
 discovery. 
 
 Action for libel in charging the plain- 
 tiff with not accounting for moneys 
 received as agent for defendants. The 
 defendants pleaded privilege and set 
 out certain circumstances which they 
 alleged created the privilege. They also 
 pleaded in justification of the libel. The 
 plaintiff applied for particulars and the 
 defendants, while not denying his right 
 to particulars, claimed the right to ex- 
 amine him for discovery before being 
 
 compelled to deliver particulars. The 
 plaintiff however refused to attend for 
 examination until after the delivery of 
 particulars by the defendants. 
 
 Held, that the plaintiff should forthwith 
 attend at his own expense for examination 
 and that the defendants should deliver 
 at once particulars of the grounds of 
 their behef that the words complained 
 of were true. Timmons v. National 
 Life Ass. Co., 18 M.R. 465. 
 
 6. Of malice in libel action — In- 
 terrogatories. 
 
 When the defendant has pleaded 
 privilege, in an action for Ubel, and 
 anticipates that plaintiff will endeavour 
 to prove malice to rebut the privilege, 
 he is not entitled to an order requiring 
 the plaintiff to furnish particulars of 
 express maUce charged by the plaintiff 
 against the defendant as affecting the 
 pubhcation complained of. 
 
 Lever v. Associated Newspapers, [1907] 
 2 K.B. 626, foUowed. 
 
 When the defendant has not pleaded 
 justification in an action -for libel, he is 
 not entitled to administer interrogatories 
 asking the plaintiff if he did certain 
 acts with a view to showing that the 
 statements in the alleged libel were 
 true. Timmons v National Life Ass. Co., 
 19 M.R. 227. 
 
 6. In action for malicious prose- 
 cution — Costs. 
 
 The plaintiff claimed damages from 
 the defendant Company for " causing 
 and procuring one John McKenzie to lay 
 a series of criminal charges against" him. 
 
 On an apphcation of the defendants, 
 the Referee ordered the plaintiff to give 
 further and better particulars in writing 
 of the manner in which the (Jefendant 
 caused and procured McKenzie to lay 
 the charges. The plaintiff claimed that 
 he could not furnish such particulars. 
 
 Held, on appeal, that the order should 
 be varied so as to require only that the 
 plaintiff should furnish the best par- 
 ticulars he could ^ve, with liberty to 
 supplement his particulars after examin- 
 ing the defendants' officers and securing 
 productions, such additional particulars 
 to be furnished not later than ten days 
 before the trial of the action. 
 
 Marshall v. Interoceanic, (1885) 1 
 Times L.R. 394, and Williams v. Rams- 
 dale, (1887) 36 W.R. 125, followed. 
 
 Costs of the appeal and of the order 
 appealed from made costs in the cause 
 
879 
 
 PRACTICE. 
 
 880 
 
 to the defendants. Cousins v. C.N.R., 
 18 M.R. 320. 
 
 7. Of negligence — Action against 
 owner of motor vehicle for running over and 
 killing a person — Motm- Vehicle Act, 
 7 & 8 Edward VII, c. 34, s. 38. 
 
 Plaintiff sued as administrator of S. 
 The statement of claim set out that the 
 defendant's servants, while driving a 
 motor vehicle belonging to him along 
 a public highway and turning into an 
 intersecting street, operated the motor 
 vehicle so neghgently, suddenly and 
 without warning and at too great a speed 
 that S., who was then riding a bicycle 
 on said street, was struck and run over 
 by the motor vehicle and instantly 
 killed. 
 
 The defendant's apphcation for an 
 order for particulars was dismissed by 
 the Referee. The plaintiff, in his affi- 
 davit filed against the apphcation, swore 
 that he had no personal knowledge of 
 the manner in which S. came to his death, 
 and that he had no means of obtaining 
 the knowledge necessary to givp the" 
 particulars asked for. 
 
 Held, on appeal from the Referee, 
 that, taking into consideration the nature 
 of the action, that some particulars 
 were given in the statement of claim, 
 and in view of the effect of section 38 
 of The Motor Vehicle Act, 7 & 8 Edward 
 yil, c. 34, particulars should not be 
 ordered. 
 
 Miller v. Westboume, (1900) 13 M.R. 
 199, and Brovm v. Greai Western Ry. 
 Co., (1872) 26 L.T.R. 398, foUowed. 
 Cuperman v. Ashdovm, 20 M.R. 424. 
 
 8. Of residence, &c., of husband of 
 married woman plaintiff. 
 
 Particulars of the residence, etc., of 
 the husband of a plaintiff married woman 
 ordered to be deUvered. McLellan v. 
 Mun. of Assiniboia, 5 M.R. 299. 
 
 9. Residence of plaintiff — Effect of 
 Rule 101. 
 
 On an apphcation for an order direct- 
 ing H., who was alleged to be the plain- 
 tiff's attorney, to declare in writing the 
 profession, occupation or quahty and 
 place of abode of the plaintiff, the only 
 evidence adduced was an affidavit of 
 the partner of defendant's attorney, 
 s tating that two notices annexed were 
 served on Hi, and he had not comphed 
 with them. The notices were : — (1) A 
 demand to declare in writing the pro- 
 
 fession, occupation or quahty and place 
 of abode of plaintiff. (2) A demand of 
 ■ security for costs. Each was addressed 
 to N. F. H , Esq., plaintiff's attor- 
 ney, and on each was endorsed, " Service 
 
 hereof admitted on date. N. F. H , 
 
 plaintiff's attorney," No demand was 
 
 made upon H. as to whether the 
 
 writ was issued by him, or with his 
 authority or privity. 
 
 Held, that there was not sufficient 
 
 evidence that H was plaintiff's 
 
 attorney, and had so refused. Lafferty 
 V. Spain, 7 M.R. 32. 
 
 10. Of special damage. 
 
 To an action upon a promissory note 
 given for the price of a wire-binding 
 machine the defendant pleaded by way 
 of counter claim a warranty given upon 
 the sale of the machine by the plaintiff 
 and a breach of such warranty, claimimg 
 as damages, (1) loss of profits which he 
 would have made by hiring the machine 
 to others, (2) expense ijicurred in en- 
 deavoring to make ;the machine fit for 
 use, and (3) expense to which he was 
 put and loss sustained in and about the 
 cutting and binding of his own corn. 
 
 Held, that particulars of the damages 
 alleged should be given. Elliott v. Hogue, 
 3 M.R. 674. 
 
 11. In actions of tort- 
 
 must he shown to get order for particulars. 
 
 On an application for an order for 
 particulars of plaintiff's claim in an 
 action of tort, special grounds must be 
 shown by affidavit setting forth at least 
 such facts as would satisfy a Judge that 
 the' defendants would be embarrassed 
 in their defence without such particulars 
 and that justice requires their dehvery. 
 
 An -affidavit by defendants' solicitor 
 tha,t he beheves the defendants cannot 
 fraine their defence without any state- 
 ment of particulars is not sufficient to 
 warrant the making of such an order. 
 
 Brown v. 6. W. Ry. Co., (1872) 26 
 L.T.N.S. 398, foUowed. Miller v. Rural 
 Mun. of Westboume, 13 M.R. 197. 
 
 XVII. Parties to Action. 
 
 1. Adding or substituting plain- 
 tiff — Consent to be added — King's Ben^h 
 Act, Rule 242 (b). 
 
 The consent in writing, required by par. 
 (b) of Rule 242 of the King's' Bench Act, 
 for the addition or substitution of a 
 person as a party plaintiff in an action, 
 
881 
 
 PRACTICE. 
 
 882 
 
 must be signed by such person himself. 
 Signature by an agent, however un- 
 doubted his authority, will not suffice. 
 
 Fricker v. Van Grutten, [1896] 2 Ch. 
 649, followed; 
 
 No such consent, however, is required 
 for the addition, in a proper case, of a 
 person as a party defendant. Watt v. 
 Popple, 16 M.R. 348. 
 
 2. Fraudulent conveyance — Estoppel 
 — Amendment. 
 
 In an action brought against a husband 
 alone for the sale of land vested in his 
 wife by an unregistered deed, and which 
 the plaintiff claimed was bound by a 
 registered certificate of judgment against 
 the defendant, the plaintiff applied 
 after the case had been set down for 
 trial for leave to amend his statement 
 of claim by adding the wife as a party 
 defendant and by alleging that the land 
 in question was the defendant's property 
 And had been mortgaged by him with 
 other lands to a bank ; that, after the 
 bank had commenced an action for fore- 
 closure of the mortgage, it 'was agreed 
 between it and the defendant that the 
 bank should take a final order apparently 
 foreclosing the defendant's title to all 
 of the mortgaged lands, but should accept 
 in actual satisfaction of its claim the 
 mortgaged lands other than the parcel 
 in question and should hold the latter 
 for the defendant ; that such agreement 
 was carried out, and that after getting 
 such final order the bank at the defend- 
 ant's request conveyed the parcel in 
 question to defendant's wife who gave 
 no consideration for it, but received and 
 had always since held it solely as a trustee 
 for the defendant. When he began the 
 action the plaintiff had knowledge of 
 the facts thus sought to be set up by 
 amendment. 
 
 Held, that leave to amend as asked 
 should be granted on payment of costs, 
 and that both husband and wife would 
 be proper parties to such an action, 
 notwithstanding that the defendant in 
 his statement of defence had denied 
 that he had any interest in the land. 
 Such denial could not afterwards be set 
 up as an estoppel against him in favor 
 of his wife or even in favor of the 
 plaintiff, but would only be evidence 
 that at one time, and for certain pur- 
 poses, he had repudiated having any 
 such interest. 
 
 Bank of Montreal v. Black, (1894) 
 9 M.R. 439, distinguished. Shiels v. 
 Adamson, 14 M.R. 703. 
 
 3. Prior incumbrancer — Delay — 
 Practice in Master's office. 
 
 In a mortgage suit the usual praecipe 
 decree was issued directing a reference 
 to the Master, and a sale on default of 
 payment. 
 
 The Master, amongst others, made H., 
 an execution creditor, a party in his 
 office and settled the priorities as follows : 
 — H. first, the plaintiff second, and 
 L. M. & P. third. H., relying on having 
 proved her claim in this suit, allowed 
 her writ of execution to expire, and so 
 lost her priority. - Seven years after- 
 wards the plaintiff revived the suit, 
 and a final order for sale was made. 
 The sale proving abortive, the plaintiff 
 gave notice of motion for an order inter 
 alia that a time be appointed to pay the 
 sum due the plaintiff and, in default, 
 that all the defendants be foreclosed. 
 
 Held, 1. That H., being a prior in- 
 cumbrancer, should not have been made 
 a party, but that the plaintiff having 
 acquiesced in the Master's order, and in 
 H. s claim being proved, could not, 
 after the great lapse of time, take ex- 
 ception to it. 
 
 2. That H. could not be foreclosed, 
 nor under the circumstances dismissed 
 from the proceedings. 
 
 Order made foreclosing the defendant 
 by bin and subsequent incumbrancers, 
 on default of payment, with leave to H. 
 if not paid off, to apply for a sale, or 
 that the plaintiff pay her or stand fore- 
 closed. Leggo v. Thibavdeau, 7 M.R. 38. 
 
 XVIII. Sale by the Cotirt. 
 
 1. Leave to plaintifE to conduct 
 sale and bid — Sale under decree. 
 
 Unless all parties consent, a plaintiff 
 in a mortgage suit will not be permitted 
 to bid at a sale of which he has the con- 
 duct. Taylor v. Sharp, 3 M.R. 4. 
 
 2. Leave to plaintifE to conduct 
 sale and bid. 
 
 This case was similar to the last, 
 with the exception that all parties con- 
 sented to the leave, asked by the plain- 
 tiEf, being given. 
 
 Held, It was objectionable that the 
 party having the conduct of the sale 
 should have leave to bid, but, if the parties 
 were willing that he should do so, an 
 
883 
 
 PRACTICE. 
 
 881 
 
 order might go giving him leave. But 
 it must be drawn up as a consent order. 
 Halsted v. Conklin, 3 M.R. 8. 
 
 XIX. Service of Pbocess. 
 
 1. Application to extend time for 
 service of statement of c\a,ita— Statute 
 of Limitations. 
 
 Unless there are extraordinary cir- 
 cumstances, an appUcation to extend 
 the time for service of the statement of 
 claim should be made before the lapse 
 of the six months allowed for service 
 by Rule 176 of the King's Bench Act, 
 especially as the plaintiff can obtain 
 substitutional service or some other 
 remedy under Rule 203, and in all oases 
 an honest attempt to serve the defendant 
 should be shown. 
 
 Such an attempt is not shown where 
 the affidavit of the soUcitor merely states 
 that since the issue of the statement of 
 claim he has been constantly endeavor- 
 ing to " locate " the defendant, but 
 without success, until recently, when 
 it was discovered he resided in Sask- 
 atchewan. 
 
 Under such circumstances leave to 
 ■serve the statement of claim ought' not 
 to be given, if the effect be to revive 
 a .cause of action btaed by t}ie Statute 
 of Limitations at the time the appUca- 
 tion is made. 
 
 Doyle V. Kaufman, (1877) 3 Q.B.D. 340, 
 followed. Watson Man. Co. v. Bowser, 
 18 M.R. 425. 
 
 2. Out of the jurisdiction — Action 
 for breach of contract to be performed within 
 the- jurisdiction — King's Bench Act, Rules 
 201 (e), 202. 
 
 (The plaintiff, a resident of Manitoba, 
 sued the defendant, a resident of Sask- 
 atchewan, for commission on the sale 
 for defendant of land situated in Sask- 
 atchewan. The bargain respecting the 
 agency was closed between the parties 
 at Winnipeg when defendant agreed to 
 pay a certain commission in case plain- 
 tiff found purchasers. 
 
 Held, that the plaintiff had a right, 
 under sub-rule (e) of Rule 201 of the 
 King's Bench Act, to serve the state- 
 ment of claim out of the jurisdiction 
 without obtaining a prior order for leave 
 to do so, for, although there was nothing 
 provided as to where the commission 
 should be payable, yet it would be the 
 duty of the defendant to pay to the 
 plaintiff at his residence in Winnipeg 
 
 any commission earned by him and so 
 there would be, in case of non-payment, 
 a breach within Manitoba of a contract 
 which, according to the terms thereof, 
 ought to be performed within Manitoba. 
 
 Reynolds v. Coleman, (1887) 36 Ch. 
 D. 453, followed. ' 
 
 Held, also, that, if a plaintiff relies 
 upon Rule 202 of the King's Bench Act, 
 he must not only estabhsh the existence 
 of assets within the jurisdiction owned 
 by defendant to the amount of $200, 
 but he must also obtain an order for 
 leave before service out of the juris- 
 diction wiU be allowed. Gullivan v. 
 Cantelon, 16 M.R. 644. 
 
 3. Personal service when party re- 
 fuses to accept — Leave to defend — Setting 
 aside judgment. 
 
 In effecting personal service of pro- 
 cess, which the party refuses to accept 
 from the officer, he should explain the 
 nature of it to the party, and then it 
 will be sufficient to throw it down before 
 him and leave it there : Thomson v. 
 Pheney, (1832) 1 Dowl. 441. 
 
 In this casfe the affidavit of service 
 of the statement of claim showed that 
 the defendant had refused to accept 
 the copy and that the officer left it at 
 the defendant's house. 
 
 Held, that the service was hot effectual, 
 more especially as the defendant was a 
 Mennonite and did not understand 
 EngUsh, and that the defendant should 
 be allowed to put in his defence to the 
 action within fifteen days. 
 
 The evidence contained in the affi- 
 davits as to the merits of the defence 
 raised not being satisfactory or con- 
 vincing. 
 
 Held, that the plaintiff's judgment 
 should not be set aside in the meantime, . 
 and that he should be allowed to remain 
 in possession of the j)roperty, which was 
 the subject of the action. 
 
 O'Sullivan v. Morphy, (1884) 78 L.T. 
 213, followed. 
 
 Costs of the application reserved 
 until after the trial. Ritz v. Schmidt, 
 12 M.R. 138. 
 
 XX. Setting Aside Executions, Judg- 
 ments AND Oedees. 
 
 A. Executions. 
 
 B. Judgments. 
 
 C. Oeders. 
 
885 
 
 PRACTICE. 
 
 886 
 
 A. Executions. 
 
 1. Issued contrary to good faith. 
 
 Upon an appeal from an order setting 
 aside an execution, 
 
 Held, that the execution was issued 
 contrary to good faith and in violation 
 of an agreement, and the appeal must 
 be dismissed, but without costs, unless 
 the defendant would undertake not to 
 bring an action for the seizure and sale 
 of his stock-in-trade under the execu- 
 tion. Ashdown v. Dederick, 2 M.R. 212. 
 
 2. Execution issued in bad faith — 
 
 Motion against, by third party — Attach- 
 ment obtained by misrepresentation. 
 
 Where an execution was issued in face 
 of an order that it should not issue for 
 a certain time which had not elapsed, 
 
 Held, that this was not merely an 
 irregularity, and that another execution 
 creditor might move against it. 
 
 The sheriff having seized and sold 
 goods under the writ, it could not be 
 set aside, but was declared to be deemed 
 to have been placed with the sheriff 
 on the earliest day on which it properly 
 could have reached him. 
 
 During a contest for priority between 
 execution creditors, if the sheriff, by 
 consent of both parties, proceeds and 
 sells, an ■ agreement that the rights of 
 the parties are not to be affected will 
 almost be presumed. 
 
 An attachment was obtained by an 
 attorney who appeared for the plain- 
 tiffs, but who was in reality the defend- 
 ants' attorney, upon the ground that the 
 defendants had assigned their property 
 with intent to defraud their creditors. 
 The fact that the assigrmient was to the 
 plaintiffs themselves having been con- 
 cealed, the attachment was set aside 
 with costs to be paid by the attorney. 
 Whitla V. Spence, 5 M.R. 392. 
 
 B. Judgments. 
 
 1. Delay in application. 
 
 Where judgment obtained and ex- 
 ecution placed in sheriff's hands, and no 
 appUcation made to set same aside for 
 nearly a year. 
 
 Held, that after such delay the Court 
 would not interfere upon a ground of 
 irregularity. , Union Bank v. McDonald, 
 1 M.R. 335. 
 
 2. Delay. 
 
 The writ was issued on 23rd June, 1883. 
 Judgment was signed 10th July, and 
 
 execution .issued 16th July, 1883. On 
 3rd March, 1884, defendant applied 
 to set aside the judgment, on the ground 
 of irregularity, and on the merits. 
 
 Held, application refused. Tait v. 
 Calloway,^ 1 M.R. 102. 
 
 3. Irregularity — Want of merits — New 
 material not to be used on appeal. 
 
 Action against two defendants com- 
 menced in May, 1883. Judgment signed 
 in September, 1883, for want of appear- 
 ance. There was an affidavit of personal 
 service filed. 
 
 Defendant P. in October, 1892, applied 
 to set aside the judgment on the grodnd 
 that he had never been served with the 
 writ, and had only lately learned of 
 the judgment. He swore positively that 
 prior to the date given in the affidavit 
 as that of the service of the writ he had 
 left the province, and did not , return 
 for some years afterwards, and never 
 was served with the writ or any papers 
 of any kind relating to the suit ; some 
 other person was served by mistake 
 for defendant. Defendant did not swear 
 to merits, nor did he show that the writ 
 had never come to his knowledge. 
 
 Held, that the fact that defendant never 
 was served with the writ of summons, 
 or a copy thereof, constituted an irreg- 
 ularity only and not a nulUty. In order 
 to take advantage of such irregularity, 
 defendant must show, not only that he 
 was not served with the process, but 
 that such process did not come to his 
 knowledge or into his possession. 
 
 On a summons by way of appeal- 
 from an order of the Referee, no affidavits 
 can be looked at except those that were 
 before the Referee. Rutherford v. Bready, 
 9 M.R. 29. 
 
 4. Leave to defend — Queen's Bench 
 Act, 1895, Rules 339 (a), 655. 
 
 Under Rules 339 (a) and 655 of The 
 Queen's Bench Act, 1895, a defendant 
 seeking to set aside a judgment entered 
 by default is not obliged to show the 
 existence of a defence on the merits as 
 clearly as was required in order to set 
 aside a judgment on default of appear- 
 ance under The Common Law Procedure 
 Act, but there is a diecretion to let him 
 in to defend if the Judge thinks that 
 under the circumstances he ought to be 
 permitted to defend. 
 
 The plaintiff's claim was for damages 
 for breach of a contract to deliver a 
 quantity of wheat, and the defendant 
 
887 
 
 PRACTICE. 
 
 bona fide intended to contest the claim, 
 but made a mistake as to the time of 
 service and tried to put in the defence 
 only one day too late. The judgment 
 signed was interlocutory, and an assess- 
 ment of damages was stiU required. 
 
 Held, that, although it was by no 
 means clear on his own showing that 
 the defendant had a good defence on 
 the merits, the order of the Referee 
 setting aside the judgment, and allowing 
 defendants to file a statement of defence 
 on payment of costs, should not be 
 interfered with. Moore v. Kennedy, 12 
 M.R. 173. 
 
 6. Leave to defend — Special circumr 
 stances — Discretionary order — Infancy. 
 
 A writ was issued under The Summary 
 Procedure on BiUs of Exchange Act, 
 1855, on a promissory note made by the - 
 two defendants, and judgment was ob- 
 tained by default on 21st April, 1891. 
 On the 29th September, 1892, the de- 
 fendant R.T.L. applied in chambers 
 to set aside this judgment on the ground 
 that, at the time of making the note, 
 he was an infant, that he joined in the 
 note only as surety for his co-defendant 
 and that his co-defendant promised 
 to settle the suit ; also, that for that 
 reason he did not defend the action, 
 and heard nothing more of it until, on 
 the 24th SejJtember, 1892, the sheriBf 
 seized his crop under an execution. An 
 order was made in Chambers setting 
 aside the judgment, and granting leave 
 to defend. 
 
 On an application to the Full Court 
 to reverse this order. 
 
 Held, (KiLLAM, J. dissenting); that, the 
 Judge in Chambers having exercised his 
 discretion, the Court should not interfere 
 with his order. 
 
 Per KiLLAM, J. No special circum- 
 stances were shown entitling the Judge 
 in Chambers to exercise any discretion 
 to set aside the judgment. Fairchild v. 
 Lowes, 8 M.R. 527. 
 
 6. Meritorious defence, when re- 
 quired to be shown — County Court-^ 
 Judgment by default regularly signed — 
 Setting aside judgment — Affidavit of merits. 
 
 A judgment by default, regularly signed, 
 cannot be set aside ex parte, but only 
 upon notice to the plaintiff and an 
 affidavit of merits, and this rule applies, 
 to the County Courts as well as the 
 Court of Queen's Bench. McKay v. 
 Rumble, 8 M.R. 86. 
 
 7. Meritorious defence when re- 
 quired to be shown— Leave to defend— 
 Absence of defence on the merits — Judicial 
 discretion — -Appeal from Referee. 
 
 When a judgment is regularly entered 
 in default of a defence, a good defence 
 on the merits should be shown on an 
 application to set it aside and allow a 
 defence to be filed, even if it was by the 
 error of a clerk of the defendant's soli- 
 citor, in not carrying out his instruc- 
 tions, that the defence intended was not 
 filed in time. 
 
 Watt V. Barnett, (1878) 3 Q.B.D. 363, 
 approved. > 
 
 Where, however, the Referee has ex- 
 ercised his discretion in favor of the 
 defendant and made an order giving 
 leave to defend, such order should not 
 be reversed on appeal, although "the 
 Judge cannot find that ^ any defence on 
 the merits has been shown. 
 
 Moore v. Kennedy, (1898) 12 M.R. 
 173, followed. McCaul v. Christie, 15 
 M.R. 358. 
 
 C. Orders. 
 
 Discretionairy order — Onv^ of proof- 
 Order allowing service of ex juris ■ writ — 
 Filing order to proceed. 
 
 An order allowing service of an ex 
 juris writ, under 49 Vic.,c. 35, s. 32, s-s. 
 (e) (M. 1886), is a discretionary order, 
 and the Court will not set aside such an 
 order made by the Referee unless it 
 appears very clearly that he was in 
 error. 
 
 The onus is on a defendant moving 
 to set aside such an order to shew that the 
 order should not have issued; and, 
 where the order was made on the ground 
 that money owing by an insurance com- 
 pany was attached in Manitoba, the 
 defendant must shew both that the 
 insurance money was payable and the 
 insurance contract made out of Manitoba. 
 
 When a defendant has moved to set 
 aside the service of a writ out of the 
 Province, on the ground of want of 
 jurisdiction, he cannot afterwards be 
 heard on a motion to set aside the writ 
 itself on the same ground supported by 
 further material. 
 
 A declaration was filed without first 
 filing or serving the order for leave to 
 proceed. 
 
 Held, there is no established prac- 
 tice, " and an objection on that ground 
 cannot be given effect to. Empire Brew- 
 ing and Malting Co. v. Harley, 7 M.R. 
 416. 
 
889 
 
 PRACTICE. 
 
 890 
 
 XXI. Stay op Pboceedings. 
 See Statinq Proceedings. 
 
 XXII. Striking Out Defence. 
 
 1. Special endorsement of writ for 
 service out of jurisdiction — Appear- 
 ance — Motion for judgment. 
 
 The writ issued was for service out of 
 the jurisdiction, and was specially en- 
 dorsed. 
 
 Defendant appeared. 
 
 Plaintiffs took out a summons under 
 46 and 47 Vic, c. 23, s. 16, to strike 
 out the appearance, and for leave to 
 sign judgment. 
 
 Held, that a writ of summons for 
 service out of the jurisdiction should 
 not be specially endorsed, but that 
 the defendant had waived the objection 
 by entering an appearance. Order 
 made as asked. Imperial Bank v. Prittie, 
 1 M.R. 31. 
 
 2. For non-attendance for examin- 
 ation. 
 
 Upon a summons for leave to sign 
 final judgment the defendant filed an 
 affidavit disclosing a defence, but refused 
 to attend for examination upon it in 
 pursuance of a judge's order. 
 
 Held, that the affidavit could not 
 be read, and judgment was ordered. 
 American Plumbing Co. v. Wood, 3 M.R. 
 42. 
 
 3. For non-attendance for examin- 
 ation. 
 
 Circumstances under which an order 
 will be made to strike out a defence for 
 non-attendance for examination. Ontario 
 Bank v. Sutherland, 3 M.R. 261. 
 
 XXIII. Striking Out Pleadings. 
 
 1. As bad on demurrer — Demurrer 
 — Amendment — Queen's Bench Act, 1895, 
 Rule 318. 
 
 Several paragraphs of the defendant's 
 statement of defence were objected to 
 by the plaintiff, as raising defences 
 which were not good in law, and a motion 
 was made to strike them out under Rule 
 318 of the Queen's Bench Act, 1895, 
 which provides that the Court or a 
 Judge may, at any stage of the proceed- 
 ings, order to be struck out or amended 
 any matter in the pleadings which may 
 be scandalous, or which may tend to 
 
 prejudice, embarrass or delay the fair 
 trial of the action. 
 
 Held, that, as no provision is made 
 in the Act for^ a plaintiff demurring to 
 the statement of defence, any pleadings 
 which would have been held bad on 
 demurrer under the former practice, 
 should now be struck out on apphcation, 
 or in a proper case amended on terms. 
 
 The 5th and 6th paragraphs of the 
 defence alleged payment, but omitted 
 the words " before action," and leave 
 was given to amend these paragraphs ; 
 but the other paragraphs objected to 
 were all held to be bad in law and struck 
 out with costs, to be costs in the cause 
 to the plaintiffs in any event. JEtna 
 Life Ins. Co. v. Sharp, 11 M.R. 141. 
 
 2. Delay in making application — 
 
 Striking out plea as embarrassing — Laches. 
 
 An application to strike out a plea as 
 embarrassing should be made promptly. 
 
 When plaintiffs had allowed nearly 
 two years to elapse, and had demurred 
 to the plea, and obtained several orders 
 for extending the time for demurring 
 and replying, and for examining de- 
 fendant on the plea. 
 
 Held, that an application to strike 
 out the plea was too late, and that the 
 plaintiffs, by their conduct, had waived 
 any objection to the form of the plea. 
 British Linen Co. v. McEwan, 8 M.R. 214. 
 
 3. Motion for, while demurrer pend- 
 ing — Demurrer — Motion to strike out parts 
 of statement of claim as embarrassing. 
 
 After a defendant, in his statement of 
 defence, has demurred to certain para- 
 graphs of the statement of claim as dis- 
 closing no facts upon which the plaintiff 
 would be entitled to recover, a motion 
 to strike out the same paragraphs, as 
 embarrassing and prejudicial to the fair 
 trial of the action on the same grounds, 
 should not be entertained while such 
 demurrer is. pending. Smith v. Murray, 
 21 M.R. 753. 
 
 XXIV. SUBSTITTJTIONAL SERVICE. 
 
 1. Afiidavit on application for. 
 
 An affidavit, for substitutional ser- 
 vice of a writ issued under the Bills of 
 Exchange Act should show the attempts 
 that have been made to serve the writ ; 
 that a copy of it has been left for the 
 defendant, when that ha^ been done ; 
 the locality of the defendant's residence 
 when known; or, if not known, that 
 
891 
 
 PRACTICE. 
 
 892 
 
 enquiries have been made to ascertain 
 it without success, and it must show a 
 search for appearance. Bakewell v. 
 McMicken, 3 M.R. 244. 
 
 2. Publication of notice by adver- 
 tisement — Motion for final judgment — 
 King's Bench Act, Bides 182, 183. 
 
 Motion for final judgment after in- 
 terlocutory judgment in default of de- 
 fence in an action for a declaration that 
 certain property standing in defendant's 
 name in the Land Titles office was held 
 by him as a bare trustee for the plaintiff 
 and for an order, inter alia, vesting the 
 title of the property in the plaintiff. 
 
 Plaintiff had obtained and acted upon 
 an order of the Referee providing for 
 service of the statement of claim by 
 advertisement pubhshed in a Winnipeg 
 daily newspaper, but his material showed 
 that, if the notice had been pubhshed 
 in either of two localities in the United 
 Wtates, it would have been more likely 
 to come to the knowledge of the defend- 
 ant. 
 
 Plaintiff had conveyed his interest 
 in the land to the defendant by an assign- 
 ment absolute in form, reciting payment 
 of the sum of $1500 therefor, and there 
 was no evidence or corroborating cir- 
 cumstances brought forward in support 
 of the allegations in the statement of 
 claim. ' 
 
 Held, notwithstanding the very wide 
 provisions of Rules 182 and 183 of. the 
 King's Bench Act, that, when service 
 by pubUcation is asked, it should not as 
 a rule be granted unless there is some 
 reason for beheving that the advertise- 
 ment will come to the knowledge of the 
 defendant: Annual Practice, 1910, pp. 
 64-66 ; that in the present case the 
 probabilities were that the action had 
 never come to the defendant's notice 
 and that, in the exercise of the caution 
 that the Court should observe where it 
 is askpd to take the property which 
 apparently belongs to one man and vest 
 it in another, the motion should be 
 refused. Howard v. Lawson, 19 M.R. 
 223. 
 
 3. P;ublication of notice by adver- 
 tisement — Motion for final judgment — 
 Kings' Bench Act, B.S.M. 1902, c. 40, 
 Rules 182, 183. 
 
 1. Substituted service by publication 
 of notice by advertisement of a state- 
 ment of claim, especially in an action 
 in which the plaintiff seeks to deprive 
 
 the defendant of a possible interest in 
 land, should not be ordered under Rules 
 182 and 183 of The King's Bench Act, ex- 
 cept upon affidavits showing a reasonable 
 probabihty that the advertisement will 
 come to the knowledge of the defendant. 
 
 Hope V. Hope, (1854) 4 De G. M. & 
 G. 328 ; FuTber v. King, (1881) 29" W.R. 
 535 ; Alexander v. Alexander, (1901) 
 1 O.L.R. 43, and Howard v. Lawson, 
 (1909) 19 M.R. 223, followed. 
 
 2. The Court will not pronounce 
 final judgment in such a case, notwith- 
 standing that the Referee has made an 
 order, not appealed from, permitting the 
 plaintiff to sign interlocutory judgment 
 after publication of notice, unless, upon 
 an examination of the material filed, it 
 appears that the order had been properly 
 made : Howard v. Lawson, 19 M.R. 223. 
 Griffin V. Blake, 21 M.R. 547. 
 
 XXV. Summary Judgment. 
 
 See Summary Judgment. 
 
 XXVI. Third Paety Procedure. 
 
 1. Defendants' claim against third 
 party founded on tort — King's Bench 
 Act, Rules 246, 249. 
 
 The Rules of Court providing for a 
 defendant bringing in a third party 
 to contest the plaintiff's claim, Nos. 
 246 and 249 of ^the King's Bench Act, 
 do not extend to a case in which the de- 
 fendant's claim against the third party 
 is founded on tort. The defendants, 
 therrfore, being called upon to account 
 for a carload of wheat received from the 
 plaintiff^ to be shipped on their line, 
 could not bring in, as third party to the 
 action, another company which it was 
 alleged had wrongfully got possession 
 of the wheat and disposed of it. 
 
 Gagne v. Rainy River Lumber Co., 
 (191U) 20 O.L.R. 433, followed. Western 
 Canada Flour Mills Co. v. C.P.R., 20 
 M.R. 422. 
 
 2. Indorsee of promissory note 
 against maker — Defence that payee guilty 
 of fraud — Maker not entitled to bring in 
 payee for purpose of relief over. 
 
 In an action by the indorsee of a pro- 
 missory note against the maker, the 
 defendant is not entitled to serve a notice 
 on the payee, under Rule 246 of the 
 King's Bench Act, calling him to come in 
 and help to contest the plaintiff's claim, 
 when the defence- relied on is that the 
 
893 
 
 PRACTICE. 
 
 894 
 
 payee was guilty of fraud in obtaining 
 the note and that the plaintiff is not a 
 holder in due course. Neither is the 
 defendant entitled, in such a case, to 
 an order under Rule 245 joining the 
 payee as a party to the' action. The 
 procedure provided for in Rules 245 to 
 250 was intended mainly for cases in 
 which the third party is supposed to 
 have some ground which he may be 
 able to urge against the plaintiff's right 
 to recover from the defendant, the object 
 being that, if he fails to come in and 
 urge such ground, he would be precluded 
 afterwards, when the defendant seeks 
 indemnity or contribution or other relief 
 over against him, from saying that the 
 plaintiff should not have been permitted 
 to get his judgment against the defend- 
 ant. If there is power to make the 
 order asked for in such a case it should 
 be refused in the exercise of a proper 
 judicial discretion under Rule 250, be- 
 cause the plaintiff might be unreasonably 
 delayed in proceeding with his action. 
 
 Bower v. Hartley, (1876) 1 Q.B.D. 
 656, followed. Daniels v. Dickson, 17 
 M.R. 35. 
 
 XXVII. Transfer" from Other Courts 
 TO King's Bench. 
 
 1. From County Court—Statement of 
 Claim — Qiteen's Bench Act, 1895, section 
 86. 
 
 When an action is transferred from 
 the County Court to the Queen's Bench, 
 under section 86 of the Queen's Bench 
 Act, 1895, it is necessary for the plaintiff 
 to file and serve a statement of claim in 
 the Queen's Bench before taking any 
 other step in the cause. Doll v. Howard, 
 11 M.R. 73. 
 
 2. From Surrogate Court — Surrogate 
 Courts Act, R.S.M. 1902, c. 41, s. 63. 
 
 When a contentious matter arising 
 in a Surrogate Court between the pro- 
 ponents of two different wills of the 
 deceased is transferred to the Coiirt of 
 King's Bencly under section 63 of The 
 Surrogate Courts Act, R.S.M. 1902, c. 
 41, it is necessary that a statement of 
 claim in the King's Bench should be 
 filed and served before any other step 
 in the cause is taken. 
 
 Doll V. Howard, (1896) 11 M.R. 73, 
 followed. 
 
 The party who commenced the liti- 
 gation in the Surrogate Court by peti- 
 tioning for probate should be the plaintiff 
 
 in the King's Bench. Re Jickling, 20 
 M.R. 436. 
 
 XXVIII. Miscellaneous Cases. 
 
 1. Alunony-y-Qtteen's Bench Ad, 1895, 
 s. 31 — Registering certificate of decree far 
 alimony — Retroapective legislation. 
 
 A decree for alimony, although ob- 
 tained before the cbming in force of The 
 Queen's Bench Act, 1895, may, under 
 section 31 of that Act, be registered 
 against lands, as legislation relating to 
 procedure only, or improving the remedy, 
 is prima fade appUcable to existing pro- 
 ceedings or rights. 
 
 Wright v. Hale, (1860) 6 H. & N. 227, 
 and Weldon v. Winslow, (1884) 13 Q.B.D. 
 784, followed. 
 
 The Queen v. Taylor, (1876) 1 S.C.R. 
 65, and Hughes v. Lumley, (1855) 24 
 L.J.Q.B. 29, distinguished. Foulds v. 
 Foulds, 12 M.R. 389. 
 
 2. Attaclunent against the person 
 
 — King's Bench Act, Rule 704 — Former 
 equity practice. 
 
 In applying for a writ of attachment 
 against the person for contempt of Court, 
 it is not necessary to show that the 
 equity practice prior to the coming into 
 force of The Queen's Bench Act, 1895, 
 requiring that the copy of the order 
 served should be indorsed with the 
 memorandum prescribed by former Equity 
 Rule 290 and schedule N, has been 
 followed, as the words " circumstances " 
 and " manner," used in Rule 704 of the 
 King's Bench Act, which is the Rule 
 prescribing the present practice, do not 
 extend to the material to be used on 
 applying for such writ of attachment. 
 The Court drew a distinction between 
 the procedure for obtaining the old ex 
 parte writ of attachment and the present 
 practice, under which notice is always 
 necessary before the writ can be obtained. 
 Cotter V. Osborne, 17 M.R. 164. 
 
 3. Certiorari— ii'uK Court — Master and 
 Servant's Act, R.S.M., c. 96 — Criminal 
 matter — Procedure. 
 
 Motion to the Full Court upon notice 
 to a justice of the peace for a writ of 
 certiorari to remove a conviction of 
 the applicant under The Master and 
 Servant's Act, R.S.M., 1892, c. 96, for 
 non-payment of $18.00 wages. 
 
 Ordered, that the motion should be 
 adjourned into Chambers to be heard 
 by a single Judge if the parties consented, 
 
895 
 
 PRACTICE. 
 
 895 
 
 otherwise that it should be dismissed 
 without prejudice to a motion in Cham- 
 bers. Re Dupas, 12 M.R^53. 
 
 4. Consent order— Application to en- 
 large time. 
 
 An order made on consent cannot be 
 varied or set aside, except by consent, 
 without showing some ground of sur- 
 prise, mistake or fraud, or other ground 
 which would invaUdate an agreement 
 between the parties. 
 
 Harvey v. Croydon, 26 Ch. D. 249 ; 
 Australasian AutomatiCj etc., Co. v. Wal- 
 ter, W.N. [1891] 170; Huddersfield Bank- 
 ing Co. ' V. Lister, [1895] 2 Ch. 273, 
 followed. Orant v. McKee, 11 M.R. 
 145. 
 
 5. Costs — Action against member of 
 legal firm defended by firm, one of whom 
 is not a solicitor — Taxation of defendant's 
 costs in such a case — Counsel fees paid 
 to partners in law firm — Law Society Act, 
 B.S.M. 1902, c. 95, ss. 52 and 59. 
 
 1. No, solicitor's fees should be allowed 
 on the taxation as against the plaintiff 
 of the costs of the successful defence of 
 an action against one member of a legal 
 firm for whom the firm acts as soUoitors, 
 when another member is not a sohcitor. 
 
 Plisson V. Skinner, (1902) 5 Terr. 
 L.R. 391, and Brown v. Moore, (1902) 
 32 S.C.R. 97, followed. 
 
 2. The defendant however, may, in 
 such a case, tax counsel f^es actually 
 paid to his partners. 
 
 Johnston v. Ryckman, (1903) 7 O.L.R. 
 511, foUowed. Wright v. Elliott, 21 
 M.R. 337. 
 
 6. Defective material — Judicature 
 Act, Rule 413. 
 
 JSeld, that Rule 413 of the Queen's 
 Bench Act, 1895, applies to aU appli- 
 cations and motions made after the Act 
 came into force, whether in suits or 
 actions commenced after or before that 
 date, notwithstanding Rule 983, and 
 that it is now imperative to give an 
 opportunity to the applicant to make 
 good any defective material upon pay- 
 ment of the costs occasioned to the 
 opposing party by his additional at- 
 tendance. Elliott V. Robertson, 10 M.R. 
 628. 
 
 7. Demurrer — Queen'sBench Act, 1895, 
 Rules 280, 426 and 440. . ' 
 
 The proper practice, under Rules 426 
 And 440 of the Queen's Bench Act, 1895, 
 
 where a demurrer is incorporated in the 
 statement of defence, is to apply for an 
 order of a judge if it is desired to have 
 the demurrer heard before the trial of 
 the issues of fact. And without such 
 order the matters of law should be dis^ 
 posed of at the trial along with the issues 
 of iact. 
 
 In the present case the demurrer had 
 been set down for hearing on a Wednesday, 
 without a Judge's order, but had been 
 heard and overruled. 
 
 Held, on appeal from the overruling 
 order, that, as the defendants could not 
 now argue the demurrer at the trial, 
 the appeal must be proceeded with. , 
 Foster v. Mun. of Lansdowne, 12 M.R. 
 41. 
 
 8. Examination of judgment debtor 
 
 — Production of books — Notice to produce. 
 
 For the purpose of compelling a de- 
 fendant upon his examination as a judg- 
 ment debtor under Rule 732 and follow- 
 ing rules of the Queen's Bench Act, 1895, 
 to produce any books and documents 
 required, it is sufficient to serve a notice 
 upon him to produce them, and it is 
 not necessary under Rule 736 that the 
 judgment debtor should be served with 
 a subpoena duces tecum, as in the case 
 of a witness at a triaL 
 
 Russell v. Macdonald, 12 P.R. 458, 
 and Lavery v. Wolfe, 10 P.R. 488, followed. 
 Whitla V. ^Agnew, 11 M.R. 66. 
 
 9. Exhibits — Analysis of medicinal pre- 
 parations produced by plaintiffs. 
 
 In an action .for an injunction re- 
 straining the defendants from passing 
 off upon the pubhc certain medicinal 
 preparations manufactured and sold by 
 them so as to deceive the pubhc into 
 the beUef that they were the preparations 
 of the plaintiffs, the defendants are 
 not entitled to an order for the analysis 
 of the samples of the- preparations of 
 the plaintiffs, though produced by them 
 for all purposes, and although they con- 
 tended that such analysis was necessary 
 to test the claims made by the plaintiffs 
 that their preparations were cures for 
 cancer and other diseases. 
 
 The defendants' object could be as 
 well attained by an analysis of what 
 might be freely purchased in the open 
 market without the destruction of any 
 of the plaintiffs' property. Theo. Noel 
 Co. V. Vitce Ore Co., 18 M.R. 46. 
 
897 
 
 PRACTICE. 
 
 898 
 
 10. Filing pleadings^Dote o/ plead- 
 
 Held, 1. Pleadings must be dated of 
 the day of tlje month and the year when 
 pleaded. 
 
 2. Pleadings must be filed as well as 
 served. Walker v. Cameron, 2 M.R. 95. 
 
 11. Inspection of documents in 
 possession of opposite party. 
 
 Held, upon an apphcation for inspec- 
 tion of documents, an affidavit of the 
 party, as well as of the attorney, is not 
 necessary. Merchants' Bank v. Murray, 
 2 M.R. 31. 
 
 12. Interpleader — Section 46 of The 
 Corrmwn law Procedure Act, 1854 — Ex- 
 amination of witness on pending motion. 
 
 On the retxirn of a sheriff's inter- 
 pleader summons, the evidence of the 
 judgment debtor may be taken under 
 section 46 of The Common Law Pro- 
 cedure Act, 1854, if the Judge or Referee 
 see fit to direct it. Phillips Electrical 
 Works V. Armstrong. North-west Thomp- 
 son & 'Huston Electric Co., Claimants, 
 8 M.R. 48. 
 
 13. Lost note — Indemnity — Bills of 
 Exchange Act, 1890, s. 69 — Costs — Reference 
 to the Master. • 
 
 In an action on a lost promissory note, 
 when the loss is pleaded, the plaintiff 
 should, in general, tender the defendant 
 a proper bond of indemnity with a suffi- 
 cient surety or sureties before applying 
 to set aside the plea under section 69 
 of the Bills of Exchange Act, 1890, 
 in order to avoid paying the costs of 
 this defence, and of the appMcation. 
 
 Although the words of the statute 
 are that an indemnity " to the satis- 
 faction of the Court or a Judge " is to 
 be given, the security may be left to 
 the Master to settle. 
 
 Shoolbred v. Clarke, (1890) 17 S.C.R. 
 265, followed. 
 
 Adjudication as to costs of motion 
 to strike out plea of loss of note when 
 the bond tendered was insufficient. Orton 
 V. Brett, 12 M.R. 448. 
 
 14. Mortgage suit — Dispute note — 
 Power of registrar to take accounts when 
 dispute note filed — Costs of ahortive sale. 
 
 Held, that the registrar has power 
 to include in the plaintiff's account 
 costs of an abortive sale, on issuing a 
 decree after dispute note filed ; but, 
 in case of a contest, has no power to 
 
 adjudicate on the weight of evidence. 
 
 The proper course is to take a decree 
 
 ■with a reference to the Master. Cameron 
 V. Mcllroy, 1 M.R. 241. 
 
 15. Motion by outside party — State- 
 ment of residence. 
 
 In a notice of motion by a person not 
 a party to 'the suit and taking his first 
 proceeding in the suit, his residence 
 should be stated. Bole v. Rose, 10 M.R. 
 633. 
 
 16. Qrder of Court, when effective 
 
 — Money paid into court ' hy defendant — 
 Impounding for costs taxed against plain- 
 tiS — Withdrawal hy plaintiff — Time of 
 operation of Judge's order. 
 
 The Court cannot go behind the date 
 appearing on the face of an order, in- 
 quire when it was pronounced and give 
 it operation as of a prior date. 
 
 In general an order is not effective 
 until it is drawn up, signed and served. 
 
 The defendant had paid a sqm of 
 money into court, which the plaintiff 
 refused to accept as sufficient. The 
 defendant had a verdict. A person to 
 whom the plaintiff had assigned his 
 interest in the suit then appUed for 
 payment out of court of the moneys paid 
 in by defendant, but hi^ appfication 
 was, on 16th December, 1892, refused 
 on the ground that the money should . 
 be impounded to answer the defendant's 
 costs of suit. 
 
 No order impounding the money was 
 taken out until 27th December, 1892, 
 and in the meantime the money was 
 taken out of court by the plaintiff on 
 prcecipe. 
 
 Held, that plaintiff had a right to do 
 so, and an application by defendant for 
 an order on the plaintiff's attorney for 
 payment of the defendant's costs was 
 dismissed, but without costs. Young 
 V. Hopkins, 9 M.R. 310. 
 
 17. Order for payment of costs — 
 
 Effect of, as judgment — Entering upon 
 judgment roll — R.S.M., c. 80, s. 3. 
 
 Although the rules and orders at law 
 for the payment of money or costs, 
 referred to in R.S.M., c. 80, s. 3, '' con- 
 stitute judgments and have aU the force 
 and effect of judgments at law," yet 
 there is nothing in the statutes or the 
 practice of the Court to warrant the 
 making up and entry of judgment roUs 
 upon them as in the case of ordinary 
 judgments, and what purported to be 
 
899 
 
 PRACTICE. 
 
 900 
 
 a judgment roll entered herein upon 
 su6h an order was ordered to be taken 
 off tl^e files of the court. Gibbons v. 
 Chadwick, 9 M.R. 474. 
 
 Affirmed, 14 C.L.T. Occ. N. 9. 
 
 18. Party appearing in person — 
 
 Service— Filing affidavits on motion — Re- 
 ference to Judge — Costs. 
 
 Held, 1. Where a defendant appears 
 in person he is entitled to receive the 
 sarne notice of proceedings being taken, 
 which a solicitor receives. 
 
 2. Where leave was given to' file an 
 affidavit in support of a motion, but 
 the leave was not expressed in the notice, 
 and the affidavit was not filed when the 
 notice was served, but a copy was served 
 with the notice of motion, Semble, suffi- 
 cient. 
 
 3. The Referee cannot refer to a judge 
 an application which> has lapsed. 
 
 4. Where the opposite party does not 
 appear, costs cannot be given to the 
 applicant where not asked for by the 
 notice of motion. Geddes v. Miller, s* 
 
 ■IM.R. 368. 
 
 19. Payment into court — Condition 
 sought to be imposed on plaintiff getting 
 money out of court — King's Bench Act, 
 Rules 530, 532. 
 
 When a defendant, under Rule 530 
 " of The King's Bench Act, pays money 
 into court in satisfaction of a specffied 
 part of the plaintiff's cause of action, 
 he cannot by his pleading impose a con- 
 dition on plaintiff getting the money 
 out of court under Rule 532, " in satis- 
 faction of the very cause of action for 
 which it was paid in," that defendant's 
 costs qf action should be paid out of the 
 money, and plaintiff will be entitled 
 to an order for payment of the money 
 out free from such condition. 
 
 Wheeler v. United Telephone Co., (1884) 
 13 Q.B.D. 597, followed. Canada Ele- 
 vator Co. V. Kamin^ki, 17 M.R. 298. 
 
 20. Petition by outside party — 
 
 Hearing of petition in Equity — Evidence 
 in support of- 
 
 When persons interested in the subject 
 matter of a suit in equity, who are not 
 parties to the suit, petition the Court 
 for an order or decree which, if granted, 
 would establish finally their alleged 
 rights, and bring on their petition for- 
 mally for hearing, it must be supported 
 by direct, and not merely by hearsay 
 
 or secondary, evidence, unless the Court, 
 as a matter of indulgence, allows further 
 evidence, either upon inquiry before 
 the Master or before the Court itself. 
 
 GilbeH v.Endean, 9 Ch. D. 260, followed 
 in this respect. 
 
 It is otherwise in case of a motion 
 or petition, pending investigation of 
 a claim put forward by the petitioners, 
 to have certain directions given to the 
 receiver in possession of the property 
 claimed. Allan v. Manitoba & N.W. 
 Ry. Co., Re Gray, 9 M.R. 388. 
 
 21. Production of documents— Ss- 
 
 amination for discovery — King's Bench 
 Ad, Rule 398*-^C'oste — Striking out de- 
 fence. 
 
 Failure to produce documents at the 
 examination of a defendant for discovei;y, 
 though called upon by a subpoena duces 
 tecum to produce them, is not a ground, 
 under Rule 398 of the King's Bench Act, 
 for striking out the defence. 
 
 Neither should the defence be struck 
 out for non-comphance with an order 
 for production in a case where, subse- 
 quent to the service of the order, there 
 were interviews from which the defend- 
 dants might have inferred that the plain- 
 tiffs were not insisting on immediate 
 compliance, and .the plaintiffs gave no 
 further intimation of a wish to have the 
 order comphed with at once, or for re- 
 fusal to answer questions at the first 
 sitting of an examination for discovery 
 when the examination was adjourned 
 and never properly closed,- or for 
 failure to attend at an adjourned ex- 
 amination in the absence of a certificate 
 of default from the examiner or proof 
 that he was in attendance at the time 
 and place appointed or was at least 
 near at hand. 
 
 Defendants, however, were ordered 
 to pay costs, as they had been negligent 
 and had not properly and reasonably 
 met the demands made upon them, 
 and to comply with the order for pro- 
 duction within a time limited, and their 
 manager was ordered to attend for 
 examination at the defendant's expense 
 upon 48 hours' notice. Anderson v. 
 Imperial Development Co., 20 M.R. 275. 
 
 22. Receivers — Ex parte application 
 —Trustee and cestui que trust. 
 
 Motion made by two holders of bonds 
 issued by the defendant Company and 
 secured by a mortgage made to Grey and 
 Heron, the plaintiffs in the second suit. 
 
901 
 
 PRACTICE. 
 
 902 
 
 as trustees, for leave to bring an action 
 to administer, the trusts of the mortgage 
 deed, for a declaration that the power 
 of sale and other powers contained in 
 that deed are vaUd, and for a declaration 
 of the true construction of the mortgage 
 as to certain matters. 
 
 The mortgage covered a portion of 
 the line of the defendant's railway, known 
 as the first division; but, as part of it 
 was beycmd the Province, it had been 
 decided that the Court had no juris- 
 diction to order a sale. Receivers of 
 the profits, tolls and revenues of the rail- 
 way had been appointed in the respective 
 suits, but they^ were not in possession 
 of any part of the Company's property 
 and had nothing to do with the manage- 
 ment of the railway. 
 
 The trustees. Grey and Heron, had 
 formerly applied to the Court and got 
 leave to take certain proceedings which 
 they had taken, but without any prac- 
 tical results to the bondholders, beyond 
 the appointment of a separate receiver 
 for the first division. It was deemed 
 necessary to make the present applica- 
 tion, because the Railway Company 
 would have to be made a party to the 
 action to be brought, and receivers had 
 been appointed in the above actions. 
 
 Held, that leave should be granted 
 as asked, and that the applicants were 
 not precluded from bringing an action 
 for the administration of the trusts on 
 account of anything done by the trustees ; 
 also that no notice of the application 
 need, be given, as the receivers were not 
 in any sense in possession of any part 
 of the Company's property. AUan v. 
 Manitoba & N.W. Ry. Co. Gray v. 
 Manitoba & N.W. Ry. Co., 12 M.R. 57. 
 
 23. RepleTin — PrcBcife order jar — 
 King's Bench Act, Rules 862, 864, 865, 
 869. 
 
 A prseoipe order of replevin taken 
 out under Rule 862 of the King's Bench 
 Act must not contain a direction to the 
 sheriff to replevy the goods to the plain- 
 tiff, as this is contrary to the express 
 provisions of Rule 869. ■ 
 
 When the sheriff acts upon such a 
 direction in a replevin order, the defend- 
 ant is entitled, under Rule 864, to have 
 the order set aside with costs and the 
 
 foods re-delivered to him by the sheriff. 
 chatsky v. Bateman, 17 M.R. 347. 
 
 24. Rescinding order — Motion to re- 
 scind order not made ex parte— Juris- 
 
 diction of Referee in Chambers — King's 
 Bench Act, Rules 442, MS— Dismissal 
 of action — Entering judgment for defendant 
 — Appeal from Referee. 
 
 1. The Referee in chambers has no 
 power to rescind his own order not made 
 
 Re si. Nazaire Co., (1879) 12 Ch. D. 
 80, and Preston v. Allsup, (1895) 1 Ch. 
 141, followed. 
 
 2. An appeal will not he from the 
 refusal of the Referee to rescind such an 
 order. ' 
 
 3. The Referee has no jurisdiction, 
 under Rule 449 of The K. B. Act or 
 otherwise, even with the consent of 
 
 • the parties, to make an order for the 
 entry of judgment for the defendant, 
 after the action has been entered for 
 trial. Such a judgment can then only 
 be pronounced by a Judge sitting in 
 Court. 
 
 4. The Referee would have power, 
 under Rule 422 (d) of the Act, to dismiss 
 an action by the consent of the parties. 
 
 5. When the judgment entered in an 
 action is unauthorized and unsupported 
 by any order or j)ronouncement of the 
 Court, an appeal will lie from the refusal 
 of the Referee to set it aside on motion 
 before him, although such motion also 
 included an appUcation to him to rescind 
 his own order previously made not ex 
 parte in the same action. Walker v. 
 Robinson, 15 M.R. 445. 
 
 26. Res judicata — Debtors' Arrest Act, 
 R.S.M. c. 43 — Capias — Second applica- 
 tion on same grounds after first dismissed. 
 
 The defendant having been arrested 
 on a capias under an order issued by 
 a Coimty Court Judge, a summons was 
 issued by him calling on the plaintiffs 
 to show cause Why an order should not 
 be issued releasing the defendant from 
 custody, on grounds stated in the de- 
 fendant's affidavit. This summons was 
 dismissed and on the same day a second 
 summons was issued by the same Judge 
 for the same purpose, which was also 
 dismissed on the ground that the defend- 
 ant's affidavit was defective in not com- 
 plying with section 20 of The Debtor's 
 Arrest Act, R.S.M. c. 43. Defendant 
 then applied to a Judge of the (Queen's 
 Bench for practically the same relief, 
 only , asking in addition that the order 
 for the writ of capias and the writ itself 
 should be set aside. 
 
 Held, following The Queen v. The 
 Manchester & Leeds Railway Co., 8 A. 
 
903 
 
 PRACTICE. 
 
 904 
 
 & E. 413, that a party, after once failing 
 in consequence of a defect in the way 
 in which he brings his case forward, 
 is not entitled to renew the same appli- 
 cation, and that the attempt to go back 
 and set aside the order and the writ 
 did not majie the application so far 
 different from the former as to take it 
 out of the general rule, and that the 
 appUcation should be dismissed with 
 costs: Leggo v. Young, 17 C.B. 549. 
 Smith V. Edmunds, 10 M.R. 240. 
 
 26. Revivor — Dismissal for not reviving 
 — Costs. 
 
 Where one of several plaintiffs dite, 
 the order is that the survivors do revive 
 within a limited time, and in default 
 the bill is dismissed with costs. 
 
 In the case of a sole plaintiff the bill 
 is dismissed without costs in case of 
 failure to revive. McMahon v. Biggs, 
 4 M.R. 84. 
 
 27. Security for costs — Payment out, 
 when declaration not filed within year. 
 
 The plaintiff did not declare within 
 a year after the writ was returnable. 
 He afterwards applied for pajrment out 
 of court of 1200, paid in as security for 
 costs. 
 
 Held, 1. That, although the plaintiff 
 is out of court after the expiry of the 
 year, yet if he files his declaration it is 
 irregular only, and not void, and the 
 irregularity may be waived. 
 
 2. That the defendants could not sign 
 judgment of non pros, so as to tax costs. 
 
 Cooper v. Nias, 3 B. & Aid. 271, 
 followed. 
 
 3. Although the defendants could not 
 have sued on a bond for security or 
 made a motion to have any of the money 
 paid out to them, yet the plaintiff could 
 not have an order that it be paid out 
 to him without the consent of defendants, 
 and defendants might impose the con- 
 dition that their costs be first paid. 
 Dickson v. Mvi-ual Reserve Fund Life 
 Ass., 7 M.R. 125. 
 
 28. Solicitor and client — Proedpe 
 order for delivery of bill of costs — Under- 
 taking to pay amount taxed — Solicitors' Act, 
 6 & 7 Vic'., c. 73, s. iS— King's Bench 
 Act, Rule 964a added by s. 12 of c. 17 of 
 10 Edw. VII, Form 104. 
 
 1. A praecipe order . for the dehvery 
 and taxation of a solicitor's bill of costs 
 
 taken out by a client under Rule 964a, 
 added to the King's Bench Act by 10 
 Edward VII, o. 17, s. 12, should, under 
 s. 43 of the EngUsh Solicitors' Act, 6 & 7 
 Vic, c. 73, which is stiU in force in Man- 
 itoba, be styled in the matter of the 
 solicitor and not in the action in which 
 the costs were incurred. 
 
 2. It is not necessary that such an 
 order should contain an admission of 
 the retainer. 
 
 3. Neither is it necessary that such 
 an order should contain a submission 
 on the part of the client to pay the amount 
 found due on the taxation ; King's Bench 
 Act, Form 104 ; although, when the 
 chent applies after a month from the 
 delivery of the bill for a reference to 
 taxation, it would be proper to require 
 such submission ; and in no case is there 
 authority to impose such a condition 
 when the application is merely for the 
 deUvery of the biU. 
 
 4. Under said Rule 964a, an order 
 may be taken out for the delivery of a 
 bill simply, without adding the words 
 " and taxation.," 
 
 In re West King and Adams, [1892] 
 2 Q.B. 107 ; Duffett v. McEvoy, (1885) 
 10 A.C. 300, and Re McBrady v. O'Connor, 
 (1899) 19 P.R. 37, followed. Desaulniers 
 v. Johnston, 20 M.R. 431. 
 
 29. Statutes, construction of — 
 
 Queen's Bench Act, 1895 — Pending busi- 
 ness — Jury trial. 
 
 With respect to pending business. 
 The Queen's Bench Act, 1895, Rule 
 983 (a), provided that "in all cases 
 the action or suit should be continued 
 up to the trial or hearing according to 
 the previous practice of the said Court, 
 and afterward according to the provisions 
 of this Act." 
 
 Held, that the words " up to " in this 
 rule are exclusive of the trial or hearing, 
 which should therefore be conducted 
 according to the provisions of the Actj^ 
 and not according to the previous practice 
 of the Court, and that the plaintiff was 
 right in entering the record for trial as 
 a jury case, the cause of action being 
 one of those which, by section 49, it is 
 provided should be tried by a jury, al- 
 though the plaintiff would not have been 
 entitled to a jury if the trial had been 
 conducted according to the former prac- 
 tice. Robertson v. Brandes, 11 M.R. 
 264. 
 
905 
 
 PRACTICE IN LAND TITLES OFFICE. 
 
 906 
 
 30. Stop order — Charging order — Set- 
 off of costs — Stay of proceedings to enable 
 creditor to procure a charging order. 
 
 A stop order' in Equity gives no charge 
 on a fund in court in favor of the party 
 obtaining it, and he is not entitled to 
 an order for payment out of court as 
 against his judgment debtor without 
 first getting a charging order on the fund. 
 
 The appUcation of the judgment debtor 
 for payment out to him of the. fund in 
 court to which he has been found en- 
 titled was, however, enlarged a week 
 to enable the judgment creditors to 
 apply for a charging order, and their 
 stop order was- continued meantime. 
 
 A set-off of costs . of a former appli- 
 cation against those of a later one can 
 only be allowed as part of the order 
 made on the later application, or upon a 
 special appMcation after both sets of 
 costs are taxed. McWilliams v. Bailey, 
 9 M.R. 563. 
 
 31. Tender — Plea of tender before action 
 with payment into court — Effect of plaintiff 
 taking money out — Costs. 
 
 When the plaintiff takes money out 
 of court paid in by the defendant with a 
 plea of tender before action, he does not 
 thereby admit the tender, and neither 
 party has any right to tax costs against 
 the other until the issue on the plea of 
 tender is disposed of. 
 
 Griffiths v. School District of Ystrady- 
 Jodwg, (1890) 24 Q.B.D. 307, and Anwr- 
 ican Aristotype Co. v. Eakins, (1904) 
 7 O.L.R. 127, followed. Nixon v. Bets- 
 worth, 16 M.R. 1. 
 
 32. Trover — Stay of proceedings on 
 return of goods — Dispute as to identity 
 of article offered to be returned. 
 
 After the commencement of an action 
 of trover for the conversion of a threshing 
 engine, the defendants shipped to the 
 plaintiiEfs an engine which the defendants 
 alleged but the plaintiffs denied to be 
 "the one in question. The plaintiffs also 
 claimed that, if it was the same, it was 
 qrf very much l^s value than when con- 
 verted. 
 
 Held, that the defendants were en- 
 titled on motion to an order permitting 
 them to return the engine in question 
 upon paying the costs of the action to 
 date and of the motion within two weeks, 
 and providing that, if thereafter the 
 plaintiffs proceeded to trial and did not 
 recover more than nominal damages. 
 
 they should pay the costs subsequently 
 incurred. 
 
 Phillips V. Hayward, (1834) 3 Dowl. 
 362; Peacock v. Nichols, (1839) 8 Dowl. 
 367, and EarU v. Holdemess, (1828) 
 4 Bing. 462, followed. Brown v. Canada 
 Port Huron Co., 15 M.R. 638. 
 
 See Alimony. 
 
 — APPEAL FROM County Cotjkt, I ; III, 
 
 2, 3; VI, 2. 
 
 — Arbitration and Award, 8. 
 
 — Capias, 6. 
 
 — Charging Order. 
 
 — ■ Chattel Mortgage, II, 2. 
 
 — Company, IV, 4. 
 
 — Costs, III, 1; XIII, 21. 
 
 — County Court. 
 — ■ Demurrer. 
 
 — Election Petition, III, 2; V, 1: VI, 
 
 3, 4; X, 6. 
 
 — ■ Evidence on Commission, 5, 6, 8, 11. 
 
 — Examination for Discovery, 3, 4, 5, 
 
 8, 9, 10. 
 
 — Examination or Judgment Debtor, 
 
 3, 6, 15. 
 
 — Executors and Administrators. 
 
 — Extradition, 3. 
 
 — Foreign Corporations, 2. 
 
 — Garnishment, I, 8. 
 
 — Infant, 12. 
 
 — Injunction, IV, 4. 
 
 — Interest, 3. 
 
 — ■ Interpleader, III; V, 2; VI; VII; 
 IX. 5. 
 
 — Jury Trial, I, 8, 11. 
 
 — Magistrate. 
 
 — Master and Servant, III, 3. 
 
 — Married Woman, 3. 
 
 — Mechanic's Lien, VI, 2. 
 
 — • Mortgagor and Mortgagee, VI, 10, 
 12, 13. 
 
 — Parties to Action, 4. 
 
 — Pleading, II, 2. 
 
 — Production of Documents. 
 
 — Prohibition, I, 4, 7; III, 4. 
 
 — Public Schools Act. 
 
 — Real Property Act, I, 6, 7, 10; II, 
 
 1, 3, 4; III. 
 
 — Security for Costs, IX, 2. 
 
 — Staying Proceedings, II, 3. 
 
 — Solicitor's Lien for Costs, 4. 
 
 — Summary Judgment, II. 
 
 — Surrogate Court. 
 
 — Trial. 
 
 — Winding-up, I, 3; IV, 6. 
 
 PRACTICE IN LAND TITLES OFFICE, 
 
 See Real Property Act, V, 7. 
 
907 
 
 PRAECIPE ORDER. 
 
 908 
 
 PRAECIPE ORDER. 
 
 Security fob Cos;rs, X, 9. 
 
 PRAIRIE FIRE. 
 
 See Negligence, III. 
 — Railways, VII, 2.- 
 
 PRAYER FOR FURTHER AND 
 OTHER RELIEF. 
 
 See Further Relief. 
 
 PRECAUTIONS AGAINST ACCI- 
 DENT. 
 
 See Negligence, III, 3. 
 
 PRECEDENCE. 
 
 See Queen's Counsel. 
 
 PRE-EMPTION. 
 
 See Homestead, 1. 
 
 PREFERENTIAL CLAIM. 
 
 See Winding-up, III. 2. 
 
 PRESENTMENT. 
 
 See Bills and Notes, X. 
 — County Court, II, 6. 
 
 PRESSURE. 
 
 ! Fraudulent Preference, III, 1, 2, 7: 
 IV; VI, 4, 5. 
 
 PRESUMPTION. 
 
 ', Bills and Notes, VIII, 10. 
 Crown Patent, 5. 
 Damages, 4. 
 
 Election Petition, VI, 3. 
 Fraudulent Conveyance, 6. 
 Husband and Wife, IV, 1. 
 Infant, 7. 
 
 Local Option By-law, VI, 5. 
 Master and Servant, IV, I. 
 Mutual Insurance, 2. 
 Practice, XX, A, 2. 
 Railways, III, 4. 
 Trade Unions, 1. 
 
 PRINCIPAL AND AGENT. 
 
 I. Authority to Agent. 
 
 II. Commission on Sale of Land. 
 
 III. Contract by Agent. 
 
 IV. Estoppel. 
 
 V. Miscellaneous Cases. 
 
 I. Authority to Agent. 
 
 1. To buy goods on credit— I/io6iK% 
 of principal when agent supplied mth 
 cash to pay for goods purchased — Becei/pt 
 of goods by purchaser — Admissions of 
 anient, when evidence. 
 
 The defendants, grain dealers, em- 
 ployed one B. to buy wheat for them 
 at 'Virden, and sujjplied him with ready 
 money to pay for it. B. then, with the 
 knowledge of the defendants, and on 
 their instructions, made arrangements 
 with C, who had charge of an elevator 
 there, to receive the wheat for them, to 
 weigh it on receipt, and to give out re- 
 ceipts or ticJsLets to the persons deUvering 
 the grain, signed by him as defendants' 
 agent, showing names of piirchasers, 
 quantity and grade of wheat, price and 
 the total amount of the purchase. These 
 tickets were furnished to B. by the de- 
 fendants. They were headed " Grain 
 Warehouse, ■ Virden," and had printed 
 at the bottom the words " Atl^nson & 
 Co., per ." The custom 
 
 was for the farmers, on receiving these 
 ticjkiets, to take them to B.or his bankers 
 and get their money. The plaintiff's 
 claim was /for S828.80, the amount of 
 two of these tickets, which were pro- 
 duced and proved. C. proved that B. 
 had told him the prices and grades agreed 
 on with the plaintiff and, this evidence not 
 having been objected to at the trial, the 
 
909 
 
 PRINCIPAL AND AGENT. 
 
 910 
 
 majority of the Court held that it must 
 be considered that the prices, grades and 
 quantities were sufficiently proved. The 
 majority also held that the delivery of 
 the wheat into the elevator must be 
 considered as delivery to the defendants. 
 
 Neither the plaintiff, who was present 
 in Court, nor B., gave evidence; and de- 
 fendants gave no evidence in proof of 
 payment, except that they had supplied 
 B. with large sums of money to pay cash 
 for any wheat he should buy for them. 
 
 Held, (KiLLAM, J., dissenting), that the 
 plaintiff could not recover, as B. had no 
 authority to buy except for cash, and the 
 defendants had supplied him with the 
 cash. 
 
 Per Bain, J. — There was nothing to 
 show that the plaintiff had any reason 
 to suppose that the tickets would be 
 paid by the defendants; and, if plaintiff 
 chose to deliver his wheat to B. without 
 getting his money for it, he did so at his 
 own risk, and could not now look to the 
 defendants for the money. It is doubt- 
 ful whether a principal would be liable 
 for the price of goods purchased by his 
 agent on credit, when he had given the 
 agent ready money to pay for them, 
 although he had actually received and 
 used the goods: PaUy on Agency, p. 164. 
 
 Per Kii/LAM, J. — ^The plaintiff's case 
 was sufficiently proved, for the evidence 
 showed that the agent was authorized 
 to buy on the very terms on which he 
 did buy, and that he was not to pay 
 cash until after the delivery of the wheat. 
 There was no evidence to show that he 
 bought on credit or that the plaintiff 
 was not entitled to demand his money 
 immediately on getting the tickets, as 
 the property iu the wheat passed to the 
 defendants upon delivery at the elevator. 
 Bennett v. Atkinson, 10 M.R. 48. 
 
 2. To buy goods for principal — J/n- 
 disclosed principal — Inference to he drawn 
 froTn, undisputed facts — LdaMlity of de- 
 fendant for goods charged to another. 
 
 Up to 1st July, 1906, the defendant's 
 son, J. G. Leary, carried on a meat busi- 
 ness in the firm name of J. G. Leary & 
 Co., and plaintiffs suppUed goods to him 
 for that business. At that time the de- 
 fendant, who was the principal creditor 
 of J. G. Leary, employed one Schofield 
 to manage the business at a salary of 
 $75 a month. 
 
 Schofield afterwards represented to 
 the plaintiffs, though without the de- 
 fendant's authority, that the defendant 
 
 would be responsible for future goods 
 supplied for the business and that he, 
 Schofield, would see the plaintiffs pa,id, 
 and he then ordered more goods which 
 the plaintiffs suppUed. They, however, 
 charged these goods to J. G. Leary & Co. 
 and not to the defendant. The defendant 
 was not asl^d by the plaintiffs whether 
 he was the proprietor or not. 
 
 Held, reversing the decision of Dubuc, 
 C. J., that the facts did not warrant the 
 inference that the business had been in 
 fact transferred to the defendant as his 
 business, or that Schofield had any author- 
 ity to order goods from the plaintiffs 
 on the defendant's credit, and that the 
 defendant was not liable. Gordon v. 
 Leary, 17 M.R. 383. 
 
 3. To buy goods for principal — 
 
 Assignment for creditors — Sale of goods. 
 
 The plaintiff's claim was for goods sold 
 to one Pifer, who had been carrying on 
 business as a general trader-, but shortly 
 before the sale had made a transfer of 
 his stocl%-in-trade and other propCTty 
 to the defendant in trust for certain 
 creditors. The plaintiff was not aware 
 of this transfer, but sold the goods as he 
 had frequently done before the transfer, 
 believing that Pifer was stiU the princi- 
 pal and not an agent, as, defendant had 
 left him in charge of the business and 
 employed him to carry it on for him, 
 and on his behalf, in accordance with 
 instructions to be received. The goods 
 purchased from the plaintiff were such 
 as would be reasonably required in the 
 business, and the plaintiff supposed that 
 they had been ordered for it. 
 
 Held, following Armstrong v. Stokes, 
 (1877) L.R. 7 Q.B. 598, and Watteau v. 
 Fenwick, [1893] 1 Q.B. 349, that de- 
 fendant had constituted Pifer as his 
 general agent for takjing charge of and 
 carrying on the said business, and was 
 liable to the plaintiff for the price of the 
 goods furnished by him. 
 
 Hechler v. Forsyth, (1893) 22 S.C.R. 
 489, distinguished. Hidchings v. Adam^, 
 12 M.R. 118. 
 
 4. To receive money. 
 
 B., one of three executors (the defend- 
 ants), agreed to permit the plaintiff to 
 become assignee of a lease granted by 
 their testator ; that the plaintiff should 
 be allowed to deduct from the rent the 
 value of improvements to be placed by 
 him upon the premises to the amount 
 of $1,000 ; and that the rent should be 
 
911 
 
 PRINCIPAL AND AGENT. 
 
 912 
 
 increased by 13 per cent, of the amount 
 of such aUowanoes. 
 
 The improvements were made, but the 
 value was not deducted out of the rent. 
 ' In an action against the defendants 
 personally, and not as executors, a verdict 
 was given for plaintiff. 
 
 Held, 1. That, there being no proof 
 of a joint promise, the verdict was wrong 
 except as to B. 
 
 2. That the receipt of rent by B. only 
 showed that he had power to receive 
 the rent in money. 
 
 3. That an agent authorized to collect 
 a debt can receive it in money only. 
 Paisley v. Baunatyne, 4 M.R. 255. 
 
 5. To sell land — Specific performance — 
 Evidence to prove authority of agent to 
 sell land — Implied powers of real estate 
 agent — Appeal from trial judge's findings. 
 
 1. Although an agent for the sale of 
 land, having only a verbal authority from 
 the owner, may sign for him a contract 
 of sale qf the land which will be binding 
 under the Statute of Frauds, yet, if 
 disputed, the evidence of the agent should 
 pot be accepted as sufficient proof of such 
 authority without corroboration, unless 
 it is of the clearest and most convincing 
 kind and such as bears overwhelming con- 
 viction on its face. 
 
 2. The authority ordinarily conferred 
 upon a broken employed in the sale of 
 land is limited to the duty of finding a 
 purchaser ready and willing to buy the 
 property at the named price and on 
 specified terms and to introducje him to 
 his principal ; and, without a clear and 
 express provision, such authority does not 
 warrant the agent in signing a contract 
 of sale so as to bind the principal. 
 
 Hamer v. Sharpe, (1874) L.R. 19 Eq. 
 108 ; Prior v. Moore, (1887) 3 T.L.R. 624, 
 and Chadburn v. Moore, (1892) 61 L.J. 
 Ch. 674, followed. 
 
 3. Where the owner has authorized his 
 agent to" sell on terms requiring payment 
 of $11,000 cash, this will not authorize 
 
 . himto sign an agreement of sale by which 
 the purchaser is to pay the money "on 
 acceptance of title." 
 
 4. Although accepting the findings of 
 the trial judge as to the credibility of the 
 witnesses, the Court in appeal may re- 
 view the evidence and reverse the de- 
 cision arrived at as to the legal conclusions 
 to be drawn ftom the admitted facts. 
 
 Rosenbanm v. Belson, [1900] 2 Ch. 267, 
 commented on and distinguished. Gil- 
 mour V. Simon, 15 M.R. 205. 
 
 Affirmed, 37 S.C.R. 422. 
 
 6. To give warranty on sale of chat- 
 tels — Warranty by special agent. 
 
 A chartered barijk. employed an agent 
 to sell certain agricultural machinery. 
 He, without special authority in that 
 behalf, warranted the machinery to work 
 well and satisfactorily in the threshing 
 of grain. 
 
 Held, that he was a special agent and 
 could not bind his principals without 
 express authority to warrant. Commercial 
 Bank of Manitoba v. Bissett, 7 M.R. 586. 
 
 Distinguished, Taylor v. Gardiner, 8 
 M.R. 310. Next case. 
 
 7. To give warranty on sale of 
 horse — Undisclosed principal — Implied 
 authority of agent to warrant — Stallion sold 
 for breeding purposes — Implied warranty. 
 
 The plaintiff was a saw-mill owner and 
 farmer residing in Ontario. He gave a 
 staUion into the custody of M., a horse 
 dealer, to bring to Manitoba with other 
 horses which he had, and he told M. to 
 sell the horse to the best advantage. He 
 gave M. no authority to warraht, but 
 left the selling and price entirely in his 
 hands. The horse was Canadian-bred, 
 but from imported Cljdesdale stock. M. 
 brought the horse to Manitoba and sold 
 him to the defendants for' $750, taking in 
 his own name two promissory notes of 
 8375 each. The defendants knew nothing 
 of the plaintiff, and dealt with M. as the 
 owner. M. afterwards endorsed these 
 notes to the plaintiff. To an action on 
 one of the notes, the defendants set up a 
 counter-claim for breach of warranty. 
 The trial Judge found that M. sold the 
 horse for breeding purposes, and warranted 
 him to be an imported Clydesdale, and 
 that the warranty was untrue. No other 
 warranty was given. The horse proved 
 useless for breeding purposes. 
 
 Held, that the plaintiff, by his con- 
 duct, clothed M. with the apparent owner- 
 ship of the horse, and, by so acting, 
 authorized M. to make all such warranties 
 as are usual in the ordinary course of 
 the business of selling horses. 
 
 Held, also, that the plaintiff, being an 
 undisclosed principal, by suing on the 
 note, adopted the contract made by M., 
 and must take it subject to all the equities 
 as between M. and the defendants. 
 
913 
 
 PRINCIPAL AND AGENT. 
 
 914 
 
 Commercial Bank v.Bisseti, 7-M.R. 586, 
 and Brady v. Todd, 9 C.B.N.S. 592, dis- 
 tinguished. 
 
 Held, also, that, from the circumstance 
 of the horse being sold for breeding pur- 
 poses, there was an implied warranty of 
 fitness for breeding. 
 
 Held, also, that the defendants were 
 entitled to damages for, breach of the 
 warranty that the horse -syas an im- 
 ported Clydesdale, and the measure of 
 damages was the difference in. value be- 
 tween an imported horse and a Canadian- 
 bred one. Taylor v. Gardiner, 8 M.R. 310i 
 
 II. Commission on Sale op Land. 
 
 A. Bbeach of Duty of Agent. 
 
 B. Implied Representation op Au- 
 
 thority FROM Principal. 
 
 C. Knowledge op Vendor that Pur- 
 
 chaser Found by Agent. 
 
 D. Meaning op Words, ' ' Completion 
 
 OF THE Sale." 
 
 E. Revocation of the Agency. 
 
 F. When Earned in Full. 
 
 G. When Earned in Part. 
 H. When None Payable. 
 
 A. Breach of Duty of Agent. 
 
 1. Secret bargain between pur- 
 chaser and agent of vendor. 
 
 F., an agent of the defendant, company, 
 agreed with the plaintiff that he would 
 withhold 18,000 acres of the company's 
 lands from sale for 16 days to give the 
 plaintiff an opportunity to complete 
 negotiations for the sale of the land and 
 promised that if he sold the land he should 
 receive a commission of 2^ per cent. 
 
 Plaintiff afterwards entered into nego- 
 tiations with one G., who represented a 
 number of investors desiring to purchase 
 a large quantity of land, but G. was not 
 prepared to bind himself at once and 
 wanted time to ma;k;« financial arrange- 
 ments and at the same time to have the 
 opportunity kept open and agreed to pay 
 the plaintSf $500 if he would give him 
 the desired time. Plaintiff then agreed 
 to and did give the time and reported 
 to F. that he had done, so, but did not 
 inform F. that he expected to be paid 
 for it. Plaintiff never received the $500, 
 or any part of it, and G. and his associates 
 carried out the purchase of 18,400 acres 
 of the company's lands at the price agreed 
 on. 
 
 Held, Richards, J., dissenting, that, 
 although the secret bargain was al. breach 
 
 of the plaintiff's duty to the defendants, 
 and, if the money had been received, the 
 plaintiff would have to account for it to 
 them, yet it was not such as to disentitle 
 the plaintiff to the stipulated commission 
 for the service which he had fully per- 
 formed. 
 
 Boston Deep Sea Fishing &c., Co. v. 
 Ansell, (1888) 39 Ch. D. 339, and Cvlver- 
 well V. Bimey, (1886) 11 O.R. 265, 
 followed. Davidson v. Manitoba & N W. 
 Land Corp., 14 M.R. 232. 
 
 Reversed, 34 S.C.R. 255, where it was 
 
 Held, that the consent of D. to accept 
 
 the $500 was a breach of his duty as agent 
 
 for the Corporation which disentitled 
 
 him from recovering the commission. 
 
 2. Secret agreement to divide com- 
 mission with agent of vendor. 
 
 1. An agreement between the agent 
 of the vendor company and the manager 
 of the company for an equal division of 
 the commission to be received by the 
 agent on a sale of the company's real 
 property, though kiept from the , know- 
 ledge of the company, is no bar tb the 
 right of such agent to recover the com- 
 mission in case a sale is effected, as it 
 places neither the agent nor the manager 
 in a situation where their interests would 
 be in conflict with their duty to their 
 employers in getting the best possible 
 price for the property. 
 
 Rowland v. Chapman, (1901) 17 Times 
 L.R. 669, and Scott v. Lloyd, (1894) 35 
 Pac. Rep. 733, followed. 
 
 2. Unless, however, the company knew 
 of and acquiesced in such an agreement, 
 they could recover the half commission 
 from their manager if he received it, and 
 therefore the agent could have judgment 
 for only half the commission. Miner v. 
 " ' e, 19 M.R. 707. 
 
 B.' Implied Representation op Au- 
 thority FROM Principal. 
 
 Quantum meruit. 
 
 One Meredith, then a director of the 
 defendant company, in a conversation 
 with the plaintiff, assured him that if he, 
 the plaintiff, would procure a purchaser 
 for the property in question owned by the 
 Company, he felt sure the Company 
 would quote the price at $550,000 and, 
 in the event of a sale, would pay the 
 plaintiff a commission of $50,000, but 
 any -abatement of the price down to 
 $500,000 was to be boriie by the plaintiff. 
 
915 
 
 PRINCIPAL AND AGENT. 
 
 916 
 
 There was no evidence tha,t Meredith had 
 any authority to sell the property or 
 employ an agent to find a purchaser. 
 After Meredith became president of the 
 Company, the property was sold for 
 . exactly $500,000 by the Company to a 
 purchaser to whom it had been intro- 
 duced by the plaintiff to the/ knowledge 
 of Meredith. 
 
 Held, that the Company was not Uable 
 to the plaintiff either for a commission 
 on the sale or for the value of his services 
 as on a quantum meruit. 
 
 Held, also, that Meredith was not 
 liable to the plaintifi for any misre- 
 presentation of authority from the Com- 
 pany to enter into the alleged contract 
 with the plaintiff, or for failing to prevent 
 the Company from seUing the property 
 for $1500,000 or less. Bent v. Arrowhead, 
 18 M.R. 632. 
 
 An appeal to the Supreme Court was 
 entered, but the case was settled before 
 argument. 
 
 C. Knowledge of Vendor that Pur- 
 chaser Found by Agent. 
 
 1. Appeal from Judge's flndingrs of 
 fact. 
 
 Action for commission for finding and 
 introducing a purchaser for land owned 
 by. defendant. 
 
 The plaintiffs, were carpenters occupy- 
 ing a shop on the property as tenants of 
 defendant. They were not real estate 
 agents but had occasionally earned com- 
 missions on sales. 
 
 Plaintiffs had discussed price a,nd terms 
 with defendant on several occasions with 
 the view of their effecting a sale and on 
 one occasion had introduced to him a 
 prospective purchaser and it was agreed 
 that, if that sale went through, plaintiffs 
 should be entitled to a commission, but 
 no general agency to sell had been con- 
 ferred upon them. 
 
 One Forrester, passing by the property 
 and thinking that' it might be suitable 
 for his purpose, entered the plaintiffs' 
 shop and inquired of the plaintiff Robert- 
 son if the property was for sale. Robert- 
 son informed him it was. Did he' kpow 
 the owner ? Yes, Mr. Carstens.' And 
 the price? $16,000. Could it not be 
 bought for less? Robertson would in- 
 quire and, at once called up the defendant 
 by telephone. What followed is _ thus 
 stated in the Judgment of the majority 
 of the Court, reversing in part the findings 
 
 of fact by the trial Judge. Robertson 
 told the defendant he had a prospective 
 piu-chaser for his property and asked his 
 best terms. Defendant said '$15,000. 
 Robertson then asked if defendant would 
 pay his commission out of that and de- 
 fendant said he would. Robertson told 
 defendant he would have the purchaser 
 call and see him. He then quoted the 
 new price to Forrester, wrote defendant's 
 name and address on a card which he 
 handed to Forrester and ask^d him to 
 present it to. defendant when they met.^ 
 Defendant met Forrester by appointment^ 
 the same evening, when after some 
 negotiation he gave Forrester an option 
 on the premises for $14,000 cash. The 
 sale was Completed next day for that sum. 
 Forrester did not mention Robertson's 
 name to the defendant and the latter 
 said he did not associate Forrester with 
 his telephone conversation with Robert- 
 son. Defendant saw plaintiffs a few 
 hours asfter the completion of the sale 
 when plaintiffs promptly claimed their 
 commission; 
 
 Held, that the defendant was put upon 
 inquiry when a prospective purchaser 
 appeared a few hours after the con- 
 versation with Robertson and he should 
 have ascertained that Forrester was the 
 person referred to by Robertson, and 
 that, upon the above findings, the plain- 
 tiffs were entitled to commission on the 
 $14,000 at the usual rate. 
 
 Cathcart V.Bacon, (1891) 49 N.W.R. 331, 
 andQuistY.Goodfelhw, (1906) 110 N.W.R. 
 65, followed. Robertson v. Carstens, 18 
 M.R., 227. 
 
 2. Quantum meruit. 
 
 The defendant listed his property with 
 the plaintiffs, real estate agents, for sale 
 at a fixed price and on named terms. 
 The plaintiffs mentioned the property to 
 one Forrest who thereafter negotiated 
 with defendant for the purchase of the 
 property and concealed from him the 
 fact that the plaintiffs had sent him. 
 Defendant then, without any knowledge 
 of the plaintiffs' intervention, sold to 
 Forrest on terms less advantageous to 
 himself than those contemplated in the 
 agreement between the plaintiffs and 
 himself. 
 
 There was nothing in the circumstances 
 to put defendant upon his inquiry as to 
 whether the plaintiffs had sent Forrest 
 to him. 
 
 ■ Held, that the plaintiffs could recover 
 neitlier a commission on the sale nor 
 
917 
 
 PRINCIPAL AND AGENT. 
 
 918 
 
 anything for the services by way of 
 quantum meruit. 
 
 CathcaH v. Bacm, (1891) 49 N.W.R. 
 331, and Quist v. Goodfellow, (1906) 110 
 N.W.R. 65, foUowed. 
 
 Lloyd V. Mathews, 51 N.Y. 125 ; Man- 
 sell V. CUments, (1873) L.R. 9 C.P. 139, 
 and Green v. Bartlett, (1863) 14 C.B.N.S. 
 681, distinguished. Locators v. Clough, 
 17 M.R. 659. 
 
 An appeal to the Supreme Court was 
 entered, but subsequently abandoned. 
 
 3. Vendor put upon, inquiry — Vendor 
 ignorant that purchaser sent by agent. 
 
 A vendor who has' placed his property 
 in the hands of his agent for sale on com- 
 mission will not be liable to the agent 
 for commission if he afterwards sells to 
 a purchaser in ignorance that such pur- 
 chaser has been sent to him by the agent : 
 Locators v. Clough, (1908) 17 M.R., 659, 
 unless there are circumstances sufficient 
 to put the vendor upon inquiry as to 
 whether the purchaser was not in fact 
 sent to him by the agent. 
 
 Lloyd V. Matthews, (1872) 51 N.Y. 124, 
 followed. 
 
 In this case the circumstances set forth 
 in the judgment were held to be such as 
 to put the defendants upon such inquiry 
 and that, as their manager had failed 
 to make sufficient inquiry, and the pvir- 
 chaser had in fact been sent by the plain- 
 tiff, the defendants were liable for his 
 commission on the sale. Hughes v. 
 Houghton Land Co., 18 M.R. 686. ' 
 
 D. Meaning of Words, "Completion 
 OP THE Sale." 
 
 Agreement to pay on completion. 
 
 A dispute having arisen as to the 
 plaintiffs' right to a commission on the 
 sale of certain property belonging to the 
 defendant, the former claiming $5,000, 
 the latter denying liability for anything, 
 the parties compromised at 82,000 and 
 the defendant gave the plaintiffs a letter 
 which was in part as follows : — " In con- 
 nection with the sale of {description) from 
 Mrs. Cordihgly and myself to John A. 
 Lock et al., I hereby agree that, on the 
 completion of the said sale, I will pay 
 your firm a commission of $2,000. . . . 
 This amount to be paid on completion 
 of the deal." 
 
 The purchaser had previously made a 
 deposit of $2,000, but had not signed a 
 formal agreement of purchase. A few 
 
 days afterwards the formal agreement 
 was executed by all parties and a further 
 payment of $8,000 was made. The pur- 
 chaser made default in payment of further 
 instalments of the purchase money, and 
 the defendant took back the land, re- 
 taining all money paid, and released the 
 purchaser from further habiUty. 
 
 The defendant resisted the action for 
 the $2,000 commission on the groimd 
 that the sale had not been completed 
 within the meaning of his letter. He 
 had, however, on several occasions after 
 the agreement had been executed asked 
 time for payment of the $2,000. 
 
 Held, that, interpreting the letter in 
 the sense in which the parties intended 
 the words to be understood at the time, 
 as gathered from the document itself and 
 the surrounding circumstances and the 
 defendant's promises to pay, what the 
 parties meant by the words " completion 
 of sale" and "completion of the deal" 
 was the execution of a binding agreement 
 of sale, and the plaintiffs were entitled 
 to recover. Haffner v. Cordingly, 18 M.R. 
 1. 
 
 E. Revocation of the Agency. 
 
 1. Claim for work done before re- 
 vocation — Quantum meruit — Dis- 
 tinction between power to revoke authority 
 and right to do so. 
 
 An agent who has been given the ex- 
 clusive sale of real estate for a Umited 
 period,on terms of being paid a commission 
 in case of sale, is entitled to substantial 
 damages upon revocation of his authority, 
 if he has, within the time limited, found 
 a purchaser for the property as the re- 
 sult of special efforts and the expenditure 
 of money in advertising and otherwise 
 which the principal knew or had reason 
 to believe the agent would make and 
 incur to find a purchaser. 
 
 Prickett v. Badger, (1856) 1 C.B.N.S. 
 296, and Rowan v. Hull, (1904) 2 Am. 
 and Eng. Ann. Cas. 884, 47 S.E. Rep. 
 92, followed. 
 
 Simpson v. Lamb, (1856) 17 C.B. 603 ; 
 Toppin V. Heaky, (1863) 11 W.R. 466, 
 and Houghton v. Orgar, (1885) 1 Times 
 L.R. 653, distinguished. 
 
 Although the principal may have power 
 to revoke the authority given- to the 
 agent, he has not always the right to do 
 so without liability for damages. Aldous 
 V. Swanson, 20 M.R. 101. 
 
919 
 
 PRINCIPAL AND AGENT. 
 
 920 
 
 2. Claim for work done before re- 
 vocation — Qitantum meruit: 
 
 An agent who has been promised a 
 commission on the sale of land, if made 
 within a limited time at the price and on 
 terms stipulated, although he had not 
 an exclusive agency, is entitled to pay- 
 ment quantum meruit for his expenditure 
 of time and money paid for advertising 
 which resulted in his finding, within the 
 time limited, a purchaser for the property 
 able and willing to carry out the pur- 
 chase, although the agency was revoked 
 before the proposing purchaser had 
 actually bound himself to buy the pro- 
 perty, in a case when the principal, at 
 the time of creating the agency, iknew that 
 the agent would, in rehahce upon the 
 terms of his employment, spend time 
 and money in the hope of earning the 
 commission agreed on. 
 
 Aldous v. Swansm,. (1910) 20 M.R. 101, 
 followed. 
 
 Verdict for half the amount of the 
 commission the plaintiff would have 
 earned, if the sale had been carried out. 
 Aldous V. Grundy, 21 M.R. 559. 
 
 3. Contradt — Consideration. 
 
 The plaintiffs, being entitled to a com- 
 mission for finding a purchaser for the 
 defendant's farm placed in their hands 
 for sale, consented to forego the com- 
 mission on the defendant giving them the 
 special sole right to sell the land for a 
 fixed higher price within a time named. 
 
 Held, that defendant could not revoke 
 the agency thus conferred and- was Hable 
 in damages for having, before the expir- 
 ation of the time limited, notified the 
 plaintiffs that he would not sell. ■ 
 
 A special agreement of agency founded 
 on a distinct and valuable consideration 
 cannot be revoked at the will Of the 
 principal : Pollock on- Contract, 26. 
 Richardson v. McClary, 16 M.R. 74. 
 
 4. Introduction of prospective pur- 
 chaser — Subsequent Sale by principal to 
 same purchaser. 
 
 Defendant authorized plaintiff to find a 
 piirchaser for the property in question. 
 Plaintiff endeavored to induce one Gre- 
 gory to buy the property ; but, although 
 the latter expressed a wish to acquire the 
 property, he said he could not then under- 
 take it. Defendant revoked plaintiff's 
 authority to make a sale before Gregory's 
 name was mentioned to him. Defendant 
 afterwards entered into an agreement to 
 sell the property to one Fisher, who 
 
 assigned his right to Gregory, and the 
 defendant afterwards conveyed the pro- 
 perty to Gregory, who had in the mean- 
 time secured financial assistance ftom a 
 friend. When defendant sold to Fisher 
 he did not know that the latter was 
 buying for Gregory. 
 
 Held, that, in the absence of any 
 ■evidence to show any scheme or con- 
 trivance to deprive the plaintifi of his 
 commission, he was not entitled to any. 
 Hunter v. Bunnell, 3 W.L.R. 229. 
 
 F. When Eabnbd in Full. 
 
 1. Appeal against findings of fact — 
 
 Evidence — Contraciictory statements by wit- 
 nesses of equal credibility. 
 
 The defendant had a property for sale 
 which he had placed in the hands of 
 several estate agents. The plaintiff, who 
 was not known to defendant to be a real 
 estate agent, and who had no office as 
 such, went to defendant, ascertained that 
 the property was for sale and asl^ed the 
 terms which the defendant gave him. 
 Plaintiff tried to find a purchaser ; and, 
 at a subsequent interview, he told de- 
 fendant that he had found one. In 
 answer to defendant, plaintiff gave the 
 name of the purchaser. Defendant stated 
 the terms as before, but said he would 
 require a larger cash payment than plain.- 
 tiff had previously understood would be 
 accepted. Plaintiff theA said that the 
 purchaser would take the property on 
 these terms; an,d brought the purchaser 
 to the defendant. The purchaser then 
 proposed that, instead of $,10,000 cash, he 
 should -pay 85,000 cash and $5,000 in 
 six months — the other payments to be 
 as agreed on — to which the defendant 
 acceded and the sale was carried out. 
 
 There was some conflict of testimony. as 
 to whether defendant understood that 
 plaintiff was working for a commission on 
 the sale, but the trial Judge, in dismissing 
 the action, said that he did so with hesi- 
 tation, and that all the witnesses had im- 
 pressed him with the honesty of their 
 beMef in their statements. ■ , 
 
 Held, that the Court on appeal was in 
 as good a position to judge of the evidence 
 and its effects as the trial Judge, and that 
 the plaintiff was entitled to the usual 
 commission on the sale. 
 . Wolf V. Tait, (1887) 4 M.R. 59, 
 followed. 
 
 Where there are two persons of equal 
 credibility, and one states positively 
 that a particular conversation took place. 
 
921 
 
 PRINCIPAL AND AGENT. 
 
 922 
 
 whilst the other positively denies it, the 
 proper conclusion is to find that the 
 words were spoken and that the person 
 who denies it has forgotten the circum- 
 stances : hane v. Jackson, (1855) 20 
 Beav. 635 ; King v. Stewart, (1902) 32 
 S.C.R. 483. Wilkes v. Maxwell, 14 M.R. 
 599. 
 
 2. Necessity to get purchaser bound 
 in writing. 
 
 Where an agent is employed to find 
 a purchaser, he is entitled to his com- 
 mission upon production of a party ready 
 and willing to complete the purchase 
 by entering hona fide into an agreement 
 to purchase upon the terms stipulated ; 
 or, if the terms be not fully prescribed, 
 then upon the proposed purchaser and 
 the principal entering hona fide into an 
 agreement of purchase and sale. 
 
 The owner cannot refuse to pay the 
 commission because no agreement in 
 writing was actually entered into ; at 
 all events, when the reason was that he 
 refused to sign it unless some unusual 
 term was inserted, and where the vendor 
 had accepted the purchaser and by various 
 acts shewed that he considered that there 
 was a valid verbal contract. 
 
 Nor can the owner refuse to pay merely 
 because the purchaser afterwards makes 
 default and unreasonably refuses to 
 carry out the contract. 
 
 An agent to find a purchaser wiU not 
 disentitle himself to his commission by 
 receiving a deposit and giving a receipt 
 for it ; at aU events where the vendor 
 accepts the deposit. 
 
 Interest will not be allowed upon a 
 commission unless after a demand in 
 writing. And quaere, whether the statute 
 
 3 & 4 Wm. 4, c. 42, s. 28, is in force in 
 this province. McKenzie v. Champion, 
 
 4 M.R. 158. 
 
 Affirmed, 12 S.C.R. 649. 
 
 3. Necessity to get purchaser bound 
 in writing. 
 
 When the agent has found a purchaser 
 ready, wiUing and able to carry out the 
 purchase for the price and on the terms 
 stipulated for by his principal, he will 
 be entitled to his commission, although 
 he has not secured a deposit or got the 
 purchaser bound by any writing, in a 
 case where the principal, after being 
 \ informed of the willingness of the pur- 
 chaser to buy, simply ignored the agent 
 and dealt directly with the purchaser 
 
 by selUng the land to him at the stipu- 
 lated price less the commission. Ross v. 
 Matheson, 19 M.R. 350. 
 
 4. Property in hands of two agents 
 
 — Ldability of agent on contract made on 
 behalf of principal. 
 
 Defendant, Uving in New York, placed 
 a farm in the hands of plaintiff and S., 
 two different real estate agents in Winni- 
 peg, for sale. Plaintiff found a purchaser 
 at $12 per acre in cash and informed de- 
 fendant by letter. Defendant replied 
 accepting the offer, but aslring plaintiff 
 to call on S., and arrange regarding com- 
 mission so as to avoid having to pay 
 more than one commission. Plaintiff 
 did not communicate with S., but in- 
 troduced his purchaser to defendant's 
 solicitor in Winnipeg. This purchaser 
 paid the solicitor $500 on account, and 
 was ready and willing to pay the balance 
 on receipt of a transfer. Meantime S. 
 also made a sale of the farm at the same 
 price. This latter sale was carried through 
 by defendant who paid S. the usual 
 commission. 
 
 Held, that the plaintiff was also en- 
 titled to his commission, as he had done 
 all that was necessary to earn it. 
 
 The title to the property was in de- 
 fendant's father and plaintiff knew that ; 
 but defendant held a power of attorney 
 to sell and convey it, and the Court held 
 that the defendant's statements to the 
 plaintiff, both verbally and in letters, and 
 his conduct throughout, justififed the 
 plaintiff in looking to defendant alone 
 for his commission. 
 
 Held, following Story on Agency, pp. 
 306, 309, and Jones v. TAtiledale, '(1837) 
 6 A. & E. 490, that the defendant was 
 personally liable for the commission. Bell 
 V. Rokehy, 15 M.R. 327. 
 
 5. Purchaser dealing directly with 
 principal. 
 
 Plaintiffs, whom defendant knew to 
 be real estate agents, called on defendant 
 and ascertained from him that his house 
 was for sale at $14,000, nothing being 
 said about a commission. Shortly after- 
 wards plaintiffs introduced a purchaser 
 for the property who, a;fter inspection, 
 authorized plaintiff to offer $12,500. On 
 this offer being communicated to defend- 
 ant, he told the plaintiffs that he would 
 not accept any less than $14,000 and that 
 he wanted that net, which plaintiffs 
 understood meant clear of commission. 
 Plaintiffs tried to induce the purchaser 
 
923 
 
 PRINCIPAL AND AGENT. 
 
 924 
 
 to buy on these terms, but he afterwards 
 dealt with defendant directly and bought 
 the property for $14,000. 
 
 Held, (Pbedtje, J., dissenting), that 
 plaintiffs were entitled on a quantum 
 meruit to recover the full amount of the 
 usual commission on the $14,000. 
 
 Wolf V. TaU, (1887) 4 M.R. 59 ; Wil- 
 kinson v. Martin, (1837) 8 C. & P. 1, 
 and Morrison v. Burnside, (1900) 31 O.R. 
 438, followed. Aikins v. Allan, 14 M.R. 
 549. 
 
 6. Variation of terms— Amount of 
 aymmission. 
 
 The plaintiff was employed by the 
 defendant to sell for him certain lands 
 upon certain terms. He found a man 
 willing to p\irchase upon less advan- 
 tageous terms. 
 
 Held, that the defendant, having 
 accepted the purchaser and ratified the 
 variation of the terms, was liable for the 
 plaintiff's commission. 
 
 The grounds upon which the finding 
 of a judge upon a question of fact will be 
 reversed, discussed. 
 
 An agent is usually entitled to com- 
 mission upon the whole amount of the 
 purchase money whether paid in cash or 
 secured by mortgage; but, where the 
 owner himself conducts a part of the 
 negotiations, a verdict calculated upon 
 the cash payment was not disturbed. 
 TFoZ/v. rai<,4M.R. 59. 
 
 Distinguished, Calloway v. Stobart, 14 
 M.R. 650. 
 
 G. When Earned in Part. 
 
 1. Cancellation of sale for defect 
 in title — Right to commission when sale 
 falls through — Amount payable in that 
 case — Dviy of agent to secure contract 
 binding on purchaser. 
 
 After the plaintiff had procured a 
 purchaser ready and willing to carry out 
 the purchase of the property in question 
 on terms satisfactory to the, defendant, 
 the proposed purchaser discovered that 
 the north wall of the building on the 
 property was out of plumb and slightly 
 overhung the adjoining lot and called on 
 the defendant to ma^e good the title to 
 the building which formed part of the 
 property bought. Being unable or un- 
 willing to make good the defect in title 
 or to mate satisfactory terms with the 
 owner of the adjoining lot, defendant 
 proposed to the purchaser that the agree- 
 
 ment of sale should be cancelled' and it 
 was cancelled accordmgly. 
 
 Held, following McKenzie v. Champion, 
 (1887) 4 M.R. 158; Wolf v. Tait, (1887) 
 4 M.R. 59; Pnckett v. Badger, (1856) 
 1 C.B.N.S. 296; Roberts v. Barnard, (1884)' 
 1 Cab. '& E. 336, and Fuller v. Eames, 
 (1892) 8 T.L.R. 278, that plaintifis had 
 earned and were entitled to be paid a 
 compensation for their services in finding 
 a purchaser, not necessarily the amount 
 agreed on as commission, but a, compen- 
 sation as on a quantum meruit or by way 
 of damages, and that under the circum- 
 stances it was competent for the trial 
 Judge to award compensation equivalent 
 to the amount of the commission agreed 
 on had the sale gone through. 
 
 Held, also, following McKenzie v. 
 Champion, that plaintiffs were entitled 
 to be paid notwithstanding the fact that 
 they had not procured the purchaser to 
 execute a binding agreement of pur- 
 chase. Brydges v. Clement, 14 M.R. 588. 
 
 2. Exchange of lands — Appeal from 
 Judge's findings of fad. 
 
 The defendant listed his property with 
 the plaintiffs, real estate agents, for sale. 
 They then introduce^ to him a probable 
 purchaser who afterwards arranged with 
 the defendant an exchange of some lots 
 of his own for the defendant's property. 
 
 Held, that the plaintiffs were entitled 
 to one-half the commission that they 
 would have earned if they had effected 
 a sale of the property. The Court re- 
 versed the trial Judge's findings of fact. 
 Thordarson v. Jones, Thordarson v. Hecde, 
 17 M.R. 295. 
 
 3. Necessity to get purchaser bound 
 in writing. 
 
 The plaintiff, an agent employed by 
 defendants to sell real estate, introduced 
 a purchaser who paid him a deposit and 
 afterwards carried out the purchase at 
 the price agreed on, but with the prin- 
 cipals direct. The agent did not procure 
 the purchaser to sign any written con- 
 tract, but the circumstances showed that 
 he was not expected to do so in the first 
 instance. 
 
 Held, that he was entitled to some re- 
 muneration, though not to the full com- 
 mission payable in case he should procure 
 the purchaser's signatm'e to a binding 
 contract, and his verdict in the County 
 Court for the full commission was re- 
 duced ^ on appeal to one half without 
 
925 
 
 PRINCIPAL AND AGENT. 
 
 926 
 
 costs. Boughton v. Hamilton Provident 
 Society, 10 M.R. 683. 
 
 4. Subsequent sale through another 
 agent — County Courts Act, B.S.M., c. 33, 
 ss. 308, 319. 
 
 Defendant authorized plaintiffs, real 
 estate agents, to sell certain property of 
 his for $14,400, and agreed in the event 
 of sale to pay the usual commission. 
 Plaintiffs then introduced to defendant 
 an investor, showed him the property 
 and tried to effect a sale. 
 
 The same person afterwards purchased 
 the property for $14,000, but through 
 another agent. 
 
 Held, that the plaintiffs were not en- 
 titled to the full commission, and that 
 the verdict of the County Court Judge 
 allowing half commission should not be 
 disturbed. 
 
 A County Court Judge has jurisdiction 
 under section 308 of The County Courts 
 Act to reduce the amount of a verdict. 
 
 The respondent in a County Court 
 appeal cannot, without entering a cross 
 appeal, have any relief against the verdict 
 appealed from. Glines v. Cross, 12 M.R. 
 442. 
 
 H. When None Payable. 
 
 1. Sale completed by agreement 
 but afterwards cancelled because of 
 mistake as to the land purchased. 
 
 The agent of the vendor is not entitled 
 to any commission on the sale of land to 
 a purchaser who, after binding himself 
 to buy and making payments on account, 
 discovers that the land shown to him 
 by the vendor is not the land he agreed 
 to purchase and succeeds in an action 
 for the rescission of the agreement on the 
 ground of mistake and the return of the 
 money paid. Carruthers v. Fischer, 5 , 
 W.L.R. 42. 
 
 2. Contract to be inferred from 
 furnishing particulars of property 
 to real estate agent. 
 
 Defendant having placed his property 
 in the hands of several real estate agents 
 for sale, plaintiff called upon him and 
 asked him if it was for sale and inquired 
 as to the price and terms. Defendant 
 then wrote out the price and terms on 
 a slip of paper, which he gave to plaintiff 
 knowing that plaintiff's object was to 
 try to find a purchaser, effect a sale and 
 earn a commission although nothing 
 was said about it. 
 
 Plaintiff shortly afterwards found and 
 introduced to defendant a puirchaser for 
 the jjroperty ready, willing and able to 
 take it on the terms mentioned, but after 
 some negotiations defendant refused to 
 carry out the sale and sold to another 
 purchaser at a higher price. 
 
 Held, affirming the judgment of Killam, 
 C. J., (Pebdtje, J., dissenting), that the 
 plaintiff had only been authorized to 
 find a purchaser who would be accepted 
 by the defendant and that, in the absence 
 of any express contract for remuneration 
 to the plaintiff, the only promise that 
 could be implied from what had taken 
 place amounted to this : " My property 
 is for sale in the hands of several agents 
 at. the price and on the terms which I 
 give you ; I do not a^k you or employ you 
 to sell it for me; but I will allow you to 
 try to sell it and, if you succeed in finding 
 a purchaser whom I shall accept, I will 
 pay you the usual commission," and that, 
 as defendant did not sell to the purchaser 
 introduced by plaintiff, the latter was not 
 entitled to anything for his work. 
 
 Wolf V. 7ait, (1887) 4 M.R. 59, dis- 
 tinguished. 
 
 Per Perdue, J. : The proper con- 
 clusion to be drawn from the evidence is 
 that there was an impUed promise that, 
 if the plaintiff found a purchaser ready, 
 willing and able to buy on the terms 
 furnished, he should be paid the ordinary 
 commission even if defendant should 
 afterwards refuse to sell to such purchaser. 
 •Calloway v. StobaH, 14 M.R. 650. 
 
 Affirmed, 35 S.C.R. 301. 
 
 3. Introduction of terms not 
 authorized by vendor. 
 
 To entitle himself to a commission for 
 finding a purchaser of land for his prin- 
 cipal, the agent must show that the pur- 
 chaser found was not only in a situation 
 and ready and able to carry out the 
 purchase, but was also wiUing to carry 
 it out on the terms authorized by the 
 principal, so that, if the purchaser sti- 
 pulates for an additional term giving him 
 the privilege of paying off, at any time, 
 the part df the. purchase money to be 
 secured by mortgage and the vendor 
 has not authorized, or does not agree to, 
 such additional term, the agent is not 
 entitled to any commission. 
 
 Perdue, J. A., dissented, holding that 
 plaintiff was entitled to succeed. Egan 
 V. Simon, 19 M.R. 131. 
 
927 
 
 PRINCIPAL AND AGENT. 
 
 928 
 
 III. Contract by Agent. 
 
 1. Contract by agent of two firms — 
 
 Sale of goods for lump sum — Excess of 
 authority. 
 
 An agent of two independent and un- 
 connected principals has no authority 
 to bind bis principals or either of them 
 by the sale of the goods of both in one 
 lot, when the articles included in such 
 sale are different in kind and are sold 
 for a single lump price not susceptible 
 of a rateable. • apportionment except by 
 the mere arbitrary wUl of the agent. 
 
 There can be no ratification of such a 
 contract unless the parties whom it is 
 soiight to bind have, either expressly or 
 impliedly by conduct, with a fuU know- 
 ledge of aU the terms of the agreement 
 come to by the agent, assented to the 
 same terms and agreed to be bound by, 
 the contract undertaken on their behalf. 
 Cameron v. Tale, 9 C.L.T., Occ. N. 19, 
 15 S.C.R. 622. 
 
 2. Contract with agent under seal 
 
 —lAability of principal. 
 
 Plaintiffs as assignees of W. & B. de- 
 clared upon a contract under seal made 
 between W. & B. and M., whereby W. 
 & B. agreed to erect a certain building 
 for M. ; it was further alleged that M. 
 was authorized by the defendants to 
 mq^e the contract for them in his own 
 name as their agent ; that W. & B. 
 entered into the contract with M. as and 
 being the duly authorized agent of the 
 defendants ; that the defendants duly 
 authorized all the work, and took the 
 benefit of the contract and the work. 
 
 Upon demurrer, — 
 
 Held, that the defendants were not 
 liable upon the contract. Ashdown v. 
 Manitoba Land Co., b M.R. 444. 
 
 IV. Estoppel. 
 
 1. Ostensible agency to receive 
 chattels. 
 
 , The plaintiff bai'ed a horse to the de- 
 fendant to be returned to him at a certain 
 time. Before the time elapsed, the de- 
 fendant, not ■ requiring the horse any 
 longer, returned it to H., who was in 
 the plaintiff's employment both at the 
 time of bailment and return, and who 
 told the defendant that the plaintiff had 
 sent him for the horse. H. was known to 
 the ' defendant, and to others generally, 
 as being in the employment of the plaih- 
 
 t'ff as a general manager of his business. 
 In trover for the horse— , 
 
 Held, that the deUvery to H. was a 
 good dehvery to the plaintiff. 
 ■• About twp months after the return of 
 the horse the defendant met the plaintiff 
 and told him that he had delivered it 
 to H. The plaintiff neither approved 
 nor disapproved of this. Three years 
 after this action was brought. 
 
 Held, that the plaintiff was estopped 
 by his conduct from complaining of the 
 delivery to H. Bouchette v. Anderson, 
 T. W., 64. 
 
 2. Set-ofi. 
 
 When a party deals with an agent sup- 
 posing him to be the sole principal, with- 
 out the knowledge that the property in- 
 volved belongs to another person, that 
 party is to be protected. When a party 
 allows his agent to act as though he were 
 principal, and a third party deals with 
 him as owner, the principal is bound by 
 the act of his agent, even if he exceeded 
 his authority, if a purchaser pm:chases 
 goods from an agent, without any notice 
 that the goods are not the goods of the 
 agent, he is entitled to set off the aniount 
 due to him from the agent against the 
 price of the goods. The above prin- 
 ciples appUed to the purchase of goods 
 from the manager of a store upon an 
 agreement by him for payment by set- 
 off of his personal debt. Smith v. Grouette, 
 2 M.R. 314. 
 
 V. Miscellaneous Cases. 
 
 1. Adoption of acts of agent — Rati- 
 fication — Effect of takirig possession of 
 building — Corporation — Money advanced by 
 o^i(^r of, for corporate expenses. 
 
 On the failure of the contractor to 
 
 ' complete the erection of a school for the 
 plaintiff school district, the defendant, as 
 secretary treasurer, and another trustee, 
 withou}; the authorization of formal 
 trustee meetings, expended certain moneys 
 of the corporation in completing the 
 building which was afterwards taken over 
 by the corporation and used as a school 
 
 . house. There were only three trustees 
 and the third was not in the Province that 
 season. 
 
 Held, that there had been such an 
 adoption by the plaintiff corporation of 
 the acts of the defendant and the other 
 trustee, that the defendant was entitled 
 to credit in his accounts as treasurer for 
 the moneys so paid out. 
 
929 
 
 PRINCIPAL AND AGENT. 
 
 930 
 
 French v. Backhoiise, (1771) 5 Burr. 
 2728 ; Sentance v. Hawley, (1863) 13 
 C.B.N.S. 458, and Bristow v. Whitmore, 
 (1861) 31 L. J. Ch. 467, foUowed. 
 
 Held, also, that, as the school building 
 was built upon land which was not the 
 property of the school district, the rule 
 that an employer does not, as against 
 a contractor, accept the work done in 
 the erection of a building merely by re- 
 occupying his own land, did hot apply. 
 School District of Vassar v. Spicer, 21 
 M.R. 777. 
 
 2. Constructive notice — Fraud — Evi- 
 dence of accomplice in fraud — Corrobor- 
 ation — Parties — Lien for taxes paid by 
 mortgagees. 
 
 As executrix of the will of L., the plain- 
 tiffs' mother held certain lands then 
 valued at over $7,000 in trust for the plain- 
 tiffs with power to sell but ndt to mort- 
 gage the same. Wishing to borrow money 
 on the land, a pretended sale was made 
 for the expressed consideration of $5,000 
 to M., who then raised $2,000 for the 
 executrix by mortgaging the land to the 
 defendant company, and immediately 
 reconveyed the land to the executrix 
 for the nominal consideration of $1,000. 
 This scheme was carried out mainly by 
 the plaintiffs' father, who swore at the 
 trial that the agent of the company was 
 aware of the plan adopted if he did not 
 himself suggest it. The plaintiffs' father 
 and mother then Uved on the property 
 and had lived there ever, since. 
 
 Held, that the defendants were affected 
 through. their agent with notice of the 
 fraud and breach of trust committed, 
 and that the mortgage, together with two 
 subsequent mortgages taken from the 
 executrix on the same lands, should be 
 declared to be fraudulent and void as 
 against the plaintiffs. 
 
 QtMEre, whether constructive notice 
 should not also be imputed to the com- 
 pany through the solicitor, who would 
 have detected the fraud if he had foUowed 
 up the inquiries suggested by the amounts 
 of the considerations expressed in the 
 deeds and mortgage, and bjr the fact 
 that M. did not take possession of the 
 property : Kennedy v. Green, (1834) 3 
 M. & K. 699. 
 
 Held, also, that, although the agent 
 of the company was dead and the evidence 
 of the plamtiffs' father, who was mainly 
 concerned in the fraud and directly 
 benefited by it, was the only evidence 
 
 to show that the agent was aware of it, 
 it was competent for the trial Judge to 
 believe him and no corroboration was 
 necessary. The rule as to corroboration 
 of the evidence of an accomplice is not 
 one of strict law but only one of prudence, 
 and does not apply to civil actions. 
 
 Held, also, that under the circumstances, 
 although the land was stiU vested in 
 their mother the executrix, the plaintiffs 
 could sue without joining her as plaintiff. 
 
 Travis v. Milne, (1851) 9 Ha. 150, 
 followed. 
 
 Stainton v. Carron Co., (1853) 18 Beav. 
 146, and Yeatman v. Yealman, (1877) 
 7 Ch. D. 210, distinguished. 
 
 The defendants had paid taxes on the 
 mortgaged properties for a number of 
 years, and had redeemed them from a 
 sale for taxes. 
 
 Held, that they had no right to a lien 
 on the lands for the amount. 
 
 Falcke v. Scottish Imperial Insurance 
 Co., (1886) 34 Ch. D. 234, and Leslie 
 V. French, (1883) 23 Ch. D. 552, followed. 
 Graham v. British Canadian Loan & Inv. 
 Co., 12 M.R. 244. 
 
 3. Husband and ■mie— Evidence to 
 prove husband's agency for wife. 
 
 Held, that a husband's authority to 
 enter into a contract on behalf of his wife, 
 for the construction of stone foundations 
 on four lots of land belonging to her, was 
 sufficiently estabUshed by proofs of the 
 following facts : — 
 
 1. Prior to the date of the contract 
 the wife entered into what was called^ a 
 building loan agreement in respect "of 
 each of the four lots. ' Each agreement 
 provided, amongst other things, that she 
 would forthwith proceed to erect a frame 
 building with stone foundation on the 
 lot named. These agreements were signed 
 by the wife personally. Subsequently 
 four several apphcations for loans on 
 the several lots were made. These 
 applications were signed by the husband 
 in the wife's name and the wife acted 
 upon them and recognized the loans 
 made pursuant thereto. 
 
 2. During the progress of the plaintiff's 
 work the wife came with her husband and 
 saw the work proceeding but made no 
 objection to it, and she and her husband 
 went frequently to the Loan Company's 
 office together and gave directions as 
 to the buildings. Gillies v. Gibson, 17 
 M.R. 479. 
 
931 
 
 PRINCIPAL AND AGENT. 
 
 932 
 
 4. Implied obligation of agent — 
 
 Improper use of information obtained 
 during employment — Preach of confidence. 
 
 The plaintiff, being employed as agent 
 of the defendants on commission to pro- 
 cure orders in a defined territory for the 
 purchase of the defendants' goods, agreed 
 yiat he would to the best of his abiUty 
 serve their interest. He rented an office 
 in his own name for the purposes of the 
 business and paid the rent himself. 
 During his employment, the plaintiff 
 prepared a mailing .list of customers 
 •and prospective customers in his own 
 territory for use in carrying on the de- 
 ffendants' business, also a card index 
 of 500 or 600 names of such customers, and 
 he kept a ledger containing particulars 
 of sales made for defendants. 
 , During the last three months of his 
 employment, the plaintiff made an agree- 
 ment with another firm in the same line 
 of business as defendants to enter their 
 service on the expiration of his then 
 current engagement,, and made use of 
 the information in his possession to the 
 detriment of the defendants in many 
 ways and planned to take with him to 
 the other firm as much as possible of 
 the business worked up by him for the 
 defendants. 
 
 The defendants, on learning of this, 
 dismissed the plaintiff, entered his office 
 and took away or destroyed the mailing 
 hst, card index and ledger above referred 
 to, and also a hst the plaintiff had pre- 
 pared of likely calendar buyers all over 
 Canada chiefly outside of the plaintiff's 
 territory. 
 
 • Held, (1) The plaintiff was entitled 
 to damages for .the trespass committed 
 by defendants in entering his office, 
 -fixed at $50, and for the destruction of 
 I the list of likely calendar buyers, fixed 
 at $250. 
 
 (2) The defendants were entitled to 
 damages on their counterclaim against 
 the plaintiff, for breach of his agreement 
 to serve their interest to the best of his 
 ability, on account of his conduct as above 
 stated, fixed at $500. 
 
 (3) The mailing list, card index and 
 ledger were the property of the defendants 
 and the plaintiff could not recover any- 
 thing in respect of them. 
 
 Robb V. Green, [1895] 2 Q.B. 315, and 
 Lawib Y.Evans, [1893] 1 Ch. 218, followed. 
 
 Plaintiff to have costs of suit, and de- 
 fendants of their counterclaim, and 
 judgment to be entered against the party 
 
 found indebted after set-off of results. 
 Martin v. Broim, 19 M.R. 680. 
 
 6. Liability of principal to agent 
 on contract entered into by agent in 
 his own name — Sales on. Grain Exchange 
 — Commission — Agent. 
 
 The custom on the Winnipeg Grain 
 Exchange, by which brokers trading 
 there, and acting on instructions from 
 customers to seH grain for future de- 
 Uvery, enter into contracts for such sales 
 in their own names without disclosing 
 the names of their customers, thus 
 making themselves personally hable, is 
 reasonable and necessary for the prompt 
 dispatch of business, and, if a customer 
 makes default in carrying out any such 
 contract and the broker suffers loss in 
 consequence of having to carry it out 
 himseu, he is entitled to recover the 
 amount of such loss from his principal. 
 
 Robinson v. Mollett, (1874) L.R. 7 H.L. 
 802, distinguished. 
 
 Thacker v. Hardy, (1878) 4 Q.B.D. 
 687 ; BayUy v. Wilkins, (1849) 7 C.B. 
 886, andScott V.God/rev, [1901] 2 K.B. 726, 
 followed'. Murphy v. Butler, 18 M.R. 111. 
 
 On appeal to the Supreme Court, 
 Held, reversing the above judgment, 
 that the authority so given did not 
 authorize the plaintiffs to make a sale 
 under the Grain Exchange Rules binding 
 upon their principal ; that no contract 
 binding on the prmcipal outside of these 
 rules had been entered into, and, con- 
 sequently, that he was not liable to in- 
 demnify them for any loss sust&ined by 
 reason of their contract. Murphy v. 
 Butler, 41 S.C.R. 618. 
 
 6. Misrepresentation of authority 
 of agent — Ldability for — Measure of damr 
 ages — Specifie performance. 
 
 1. An agent who, by misrepresentation 
 of his authority, procures a person to 
 enter into an agreement with his prin- 
 cipals for the purchase of land will be 
 personally liable to the intending pur- 
 chaser for damages in an action for 
 specific performance against himself and 
 his principals, if they afterwards repudiate 
 the agreement and prove that the agent 
 had no authority to bind them. 
 
 Colkn v. Wright, (1857) 8 E. & B. 647 ; 
 Halbot V. Lens, [1901] 1 Ch. 344, and 
 Starkey v. Bank of England, [1903] A.C. 
 114, followed. 
 
933. 
 
 PRINCIPAL AND AGENT. 
 
 034 
 
 2. In such a case, the plaintiff is en- 
 titled, not only to the expenses actually 
 incurred, but also to the loss ot the profit 
 he would have made it the bargain had 
 been carried out. 
 
 Robinson v. Harmxm, (1848) 1 Ex. 850 ; 
 EngeU v. Filch, (1869) L.R. 4 Q.B. 659, 
 and Richardson v. Williamson, (1871) 
 L.R. 6 Q.B. 276, followed. Maneer v. 
 Sanford, 15 M.R. 181. 
 
 7. Purchase by agent in his own 
 name — Statute of Frauds. 
 
 Plaintiff, desirous of purchasing pro- 
 perty from one T., employed defendant 
 as his agent to negotiate the purchase. 
 Defendant purchased the property, using 
 his own money, and took the conveyance 
 to himself. 
 
 Held, afiHrming decree that defendant 
 was trustee for plaintiff, and that the 
 Statute of Frauds was no protection. 
 Archibald v. Goldstein, 1 M.R. 45. 
 
 8. Purchase of shares on margin — 
 
 Sale by broker without notice — Acquiescence. 
 Defendant instructed plaintiffs' man- 
 ager at Winnipeg to purchase for him, 
 on a margin of 3 per cent., 100 shares 
 of Erie Railway stock. Plaintiffs, through 
 their agents, bought the shares on the 
 New York Stock Exchange, and the 
 agents thereafter held them subject to 
 the control and order of the plaintiffs. 
 Defendant was informed within an hour 
 of the purchase and the price paid. The 
 next day he received the usual advice 
 note of the transaction in which it was 
 stated that on all marginal business the 
 plaintiffs reserved the right to close 
 transactions when margins are running 
 out without further notice. Two weeks 
 afterwards the price of the shares began 
 to fall, and the margin became so small 
 that the manager telegraphed defendant at 
 Gladstone to send $500 additional margin; 
 and later on the same day, the margin 
 being entirely lost, he telegraphed de- 
 fendant to put up $1,000 further margin. 
 Defendant replied to these telegrams : 
 " Will attend message, down to-morrow." 
 The manager gave no express notice 
 that he would sell the shares unless the 
 margins demanded were put up, but 
 waited until delivery of the mail from 
 Gladstone the next morning. Then, not 
 having heard from defendant, he tele- 
 graphed to have the shares sold, which 
 was done at a loss of $1,150. 
 
 Held, (1.) There was an actual pur- 
 chase of the shares for the defendant. 
 
 and it was not necessary that the shares 
 should have been actually transferred on 
 the books of the railway company, either 
 to the defendant or to the plaintiffs. 
 
 (2.) There was an actual sale of the 
 shares regularly made on defendant's 
 account, according to the usages of the 
 stock-broking business. 
 
 (3) The plaintiffs were' entitled, under 
 the terms of the notice sent to the de- 
 fendant, to sell the shares without notice 
 to him when the margin was exhausted, 
 as the defendant, not having objected to 
 these terms, must be taken, after a 
 reasonable time, to have assented to 
 them. Van Dusen- Harrington Co. v. 
 Morton, 15 M.R. 222. 
 
 9. ReTocation of agent's authority 
 
 — Collection by agent — Security — Further 
 directions, what can be redd. 
 
 Held, that, on further directions, a 
 defendant may, on the question of costs, 
 read his answer, although it cannot, 
 where replication has been filed, be read , 
 as evidence upon the question in dispute 
 except by consent. Only the decree aUd 
 master's report, with any intermediate 
 orders or certificates, can be made use 
 of for that purpose. 
 
 In a suit for an account by principal 
 against agent, the decree on further 
 directions contained a declaration that 
 the agency of the defendant was re- 
 voked. 
 
 Held, that the decree must be varied, 
 as the plaintiff had power to revoke the 
 authority independently of any decree 
 and had already revoked it. 
 
 The decree further declared that the 
 plaintiff should have the exclusive right 
 to the collection of moneys and debts, 
 
 Held, the decree must be varied, as 
 the moneys and debts were the plaintiff's 
 own moneys and he had a right to collect 
 them without any such declaration. 
 
 The defendant claimed to be entitled 
 to a commission of twenty per cent, 
 upon any moneys which might afterwards 
 be received by the plaintiff. The decree 
 directed the plaintiff to give security 
 that he would pay over to the defendant, 
 what the defendant might be entitled to 
 receive. 
 
 Held, the decree must be varied, as; 
 if defendant had a right to the commission, 
 he could take such steps as he might be 
 advised to obtain an account and pay- 
 ment. Vivian v. Scoble, 1 yi.B.. 192. 
 
935 
 
 PRINCIPAL AND SURETY. 
 
 -936 
 
 10. Undisclosed principal— Paj/merei 
 
 to agent, when a discharge to principal. 
 
 A person who sells goods to the agent 
 of an undisclosed principal, believing the 
 agent to be the principal, may sue the 
 principal on discovery of the facts, and 
 the principal will not be discharged from 
 liability by having made payment to 
 the agent before such discovery, unless 
 .the conduct of the seller has been such 
 as to make it unjust for him to call upon 
 the principal for payment, or uidess the 
 character of the business is such as natur- 
 ally to lead the principal to suppose that 
 the seller would give credit to the 'agent 
 alone. 
 
 Irvine v. Watson, (1879) 5 Q.B.D. 102 ; 
 Heald V. KenwoHhy, (1855) 10 Ex. 739 ; 
 Pollock on Contracts, p. 104, and Broom's 
 Common Law, p. 585, followed.' Arbuth- 
 not V. Dupas, 15 M.R. 634. 
 
 See Arbitration and Award, 2. 
 — Company, I, 1. 
 
 — Conditional Saue, 6. 
 
 — Contract, V, 1, 3. 
 
 — Examination FOR Discovert, 11. 
 
 — Jurisdiction, 5. 
 
 — Master and Servant, II. 
 
 — Misrepresentation, III, 1. 
 
 — Ratification. 
 
 — Set Off, 3. 
 
 — Trade Unions, 2. 
 
 PRINCIPAL AND SURETY. 
 
 1. Contribution between co-sureties 
 
 ' — Degrees of .suretyship. 
 
 The defendant and EU Grobb were 
 joint makers of a promissory note given 
 to MacLennan for an indebtedness of 
 Eli Grobb. When this note fell due, Eli 
 Grobb and his brother, the plaintiff, 
 signed a renewal note in favor of 
 MacLennan after promising the defendant 
 that they would try to get MacLennan to 
 accept this renewal for the former note 
 .'and so release the defendant. MacLennan, 
 however, was not willing to releg,se the 
 defendant and insisted on his joining in 
 the new note. Plaintiff paid this when 
 due and claimed contribution of one half 
 the amount from the defendant. At the 
 trial in the County Court, the Judge 
 €ound that Eli Grobb and the plaintiff 
 agreed with the defendant to assume the 
 debt due to MacLennan and gave the 
 note in question in pursuance of such 
 agreement, and that the defendant signed 
 
 the note as surety that it would be paid 
 by one or other of the Grobbs ; that the 
 defendant was not a co-surety with the 
 plaintiff and therefore not hable to re- 
 imburse him in any amount. 
 
 The plaintiff appealed. 
 
 Held, (Phippen, J. A., dissenting,) 
 that the evidence did not support such 
 finding, and that the defendant was 
 liable as a co-surety; 
 
 Whiting v. Burke, (1871) L.R. 6 Ch. 
 345, and lanson v. Paxton, (1872) 22 
 U.C.C.P. 505, followed. Grobb v. Darling, 
 17 M.R. 211. 
 
 2. Discharge of surety— Concealment 
 of dishonesty of servant — Default by servant 
 before bond of suretyship executed. 
 
 Declaration in two counts on a bond 
 of the defendant, conditioned for the 
 fulfilment by an agent of the plaintiff 
 Company of its regulations, and for 
 payment to the Company, monthly, of 
 such sums as the agent should receive 
 for the use of the Company, and, at the 
 expiration of his agency, of all moneys 
 belonging to the Company. One count 
 alleged the receipt by the agent of divers 
 sums and non-payment of the same 
 monthly or at all. The other count 
 alleged a termination of the agency, 
 receipt by the agent during its con- 
 tinuance of large sums of money and non- 
 payment thereof. 
 
 Pleas on equitable grounds, 
 7. That, before the defaults alleged and 
 before the execution of the bond, the 
 agent had been the plaintiff's agent in 
 a like capacity and, wmle such agent, had, 
 as such,! committed divers other defaults 
 of the same kind, and that the plaintiff, 
 well knowing these defaults, neglected 
 to inform the defendant thereof, but 
 retained the agent as such, and that ' 
 the defaults sued for occurred during 
 such continuance. 
 
 9. That, while the agent was so acting 
 and before the dejfaults complained of, 
 the agent had committed during his 
 service di'^ers other defaults of the same 
 kind, and ioi which the Company might 
 lawfully ■ have dismissed him, yet the 
 plaintiff, well knowing thereof, omitted 
 to inform the defendant thereof and con- 
 tinued the agent in the service, and that 
 the defaults complained of were com- 
 mitted during such continuance. 
 On demurrer to these pleas. 
 Held, 1. That the seventh plea was 
 bad on the ground that the party in whose 
 favor a contract of suretyship is made is 
 
937 
 
 PRINCIPAL AND SURETY. 
 
 938 
 
 not necessarily bound to communicate 
 to the surety every fact material to the 
 risk, as in the case of an applicant for 
 insurance, but that the non-communi- 
 cation must occur under such circum- 
 stances as to be fraudulent towards the 
 surety. 
 
 The North British Insurance Co. v. 
 Lloyd, 10 Ex. 523, followed. 
 
 2. That the ninth plea was good on 
 the authority of Sanderson v. Aston, L.R. 
 8 Ex. 73. British Empire &c. Ass. Co. 
 V. Luxton, 9 M.R. 169. 
 
 3. Guaranty insurance — Conditions of 
 insurance — Stipulation that insured shall 
 furnish proof to the satisfaction of insurer — 
 Expenses of prosecuting employee at request 
 of insurer — Notice of. loss — Waiver of 
 conditions. 
 
 One of the conditions of the guarantee 
 policy sued on required the employer, 
 immediately after the discovery of any 
 fraud or dishonesty on the part of the 
 employee, to give notice thereof in writing 
 to the insurer stating the cause, nature 
 and extent of the loss. No formal notice, 
 fully complying with, this condition, was 
 ever given, but information of the loss 
 was promptly conununicated to the 
 defendants and they took steps themselves 
 to ascertain the facts fully. 
 
 Held, that defendants could waive 
 strict performance of this condition and 
 had in fact waived it. 
 
 The policy had been issued on the 
 faith of the statements and answers to 
 questions contained in the written appli- 
 cation or proposal for the insurance 
 signed on behalf of the plaintiffs, and cop- 
 tained the condition that, "if any sup- 
 pression, mis-statement or material omis- 
 sion shall have been made by the empteyer 
 in his proposal, or at any time whatever, 
 of any fact affecting the risk of the cor- 
 poration or in any claim made under 
 
 this agreement, , this agreement 
 
 shall be nuU and void." 
 
 As to the proofs of claim for a loss, the 
 stipulations were that the employer 
 should furnish his claim, with such fuU 
 particulars thereof as should prove to 
 the satisfaction of the insm'er the cause, 
 nature and extent of the loss and the 
 correctness of the claim, and that the 
 particulars furnished should include all 
 reasonable verification of the statements 
 made in the proposal and of the compliance 
 therewith, and should .be verified by 
 affidavits duly certified if required by 
 the insurer. 
 
 Two of the answers ^in the proposal 
 were found to have been incorrect a.nd 
 the evidence showed that the plaintiffs 
 had failed to carry out the promises or 
 undertakings imphed in them, namely : 
 (1) that the employee's receipts of money 
 were to be entered in receipt pass-books 
 furnished to borrowers and subscribers 
 for shares, which pass-books would be 
 checked monthly by the head ofiBce list, 
 and (2) that the bank pass-book would 
 be inspected and checked monthly by 
 the head office. 
 
 After furnishing certain proofs of the 
 loss, the plaintiffs' manager, in response 
 to demands made on behalf of the de- 
 fendants, sent in several statutory de- 
 clarations intended to verify the correct- 
 ness of the answers set forth in the pro- 
 posal and to prove compliance, but the 
 trial Judge fowid as a fact that the proofs 
 furnished were inaccurate and untrue 
 in respect of the two statements last 
 referred to. 
 
 Held, (1) The condition requiring the 
 furnishing of proof to the satisfaction 
 of defendants should not be so construed 
 as to compel the employer to estabhsh 
 to the' satisfaction of the guarantor 
 the absolute Lability of the latter and the 
 absence of any defence. 
 
 (2) The condition requiring " all reason- 
 able verification of the statements in 
 the proposal and of the compliance there- 
 with " meant subsequent compliance 
 with the indicated future course of con- 
 ducting the business. 
 
 (3) That defendants were entitled to 
 rely on the two statements in the answers 
 as to the receipt pass-books and the 
 monthly examinations of the bank pass- 
 book as indicating and promising the 
 existence of safeguards against loss by 
 embezzlement which in fact never ex- 
 isted ; that the plaintiffs had faUed to 
 furnish " reasonable verification " of the 
 statements made in the proposal or of 
 " the compliance therewith " in respect 
 to matters which were conditions of the 
 liability of 'defendants under the policy ; 
 and that, upon principles of equity, the 
 surety should be considered as discharged 
 from his liability by a departure from 
 the course of business indicated by the 
 answers, whether or not the incorporation 
 
 .of the application in the policy should 
 be treated as creating a warranty that 
 the employer would adhere to the in- 
 dicated course. 
 
 Layyrence v. Walmsley, (1862) 12 
 C.B.N.S. 799, followed. 
 
939 
 
 PRINCIPAL AND SURETY. 
 
 940 
 
 The plaintiffs had, after being requested 
 so to do by defendants in pursuance of 
 a condition of the policy, prosecuted the 
 employee to conviction for the embezzle- 
 ment of the various sums of money which 
 he had taken, and they claimed payment 
 of the expenses of the prosecution in 
 addition to their other claim. 
 
 Held, that defendants were only liable 
 for such expenses so far as said prosecu- 
 tion related to the offences committed 
 jbefore they received notice of the defal- 
 cations, but that liability was ilbt de- 
 pendent upon their liabiUty under the 
 policy. ' 
 
 Plaintiffs to pay; defendants' costs of 
 contesting the habihty for the loss, and 
 defendants to pay plaintiffs' costs of 
 estabhshing their claim for the expenses 
 of the prosecution. Ghhe Sav. & 
 Loan Co. v. Employers' Liability Ass. 
 Corp., 13 M.R. 531. 
 
 4. Release of one of two or more 
 joint and several guarantors — Plea of 
 non est factum — Liability of wife under 
 document signed at request of husband — 
 Guaranty. 
 
 1. If an instrument in the form of a 
 joint and several guaranty to a number 
 of creditors is altered after the signature 
 of one of the guarantors by inserting the 
 name of an additional creditor without 
 the knowledge or consent of such guarantor, 
 such alteration vitiates the instrument 
 not only as against him but as against 
 all the others who have signed, although 
 such others signed after the alteration 
 and with knowledge of it. 
 
 ElUsmere Brewing Co. v. Cooper, [1896] 
 1 Q.B. 75, followed. 
 
 2. A person who signs a document 
 knowing its general character cannot 
 succeed on a defence of rum est factum, 
 because it contains larger powers than he 
 was led to believe by the person who 
 induced him to execute it, or because he 
 executed it without knowing or asking 
 what it contained. 
 
 National v. Jackson, (1886) 33 Ch. D. 
 1, and Howatson v. Webb, [1908] 1 Ch. 1, 
 followed. 
 
 It is otherwise, however, when the 
 document turns out to be of a character 
 essentially different from what he sup- 
 posed it to be, as in Foster v. McKinnon 
 (1869) L.R 4 C.P. 704, and Bagot v. 
 Chapman, [1907] 2 Ch. 222. 
 
 3. A creditor cannot enforce a guaranty 
 given by a married woman at the request 
 of her husband at a time when, to the 
 
 creditor's knowledge, she was not in 
 a condition to take much interest in any 
 document presented by her husband to 
 her for signature, if it is proved that, 
 as a matter of fact, the husband did not 
 explain the nature of the document 
 to her and she signed it without asking 
 any questions, supposing it to be some-- 
 thing to assist her husband in his business. 
 
 Chapman v. Bramwell, [1908] 1 K.B. 
 233, and Turnbull v. Duval, [1902] A.C. 
 434, foUowed. 
 
 4. When a married woman is induced 
 by fraud and misrepresentation on the 
 part of her husband and son to give her 
 husband a power of attorney containing 
 provisions of which she was not , aware, 
 under circumstances that should have 
 put the husband's creditors upon inquiry 
 as to whether deception was not being 
 practised upon her in the matter, such 
 creditors will not be allowed afterwards 
 to enforce as against her a guaranty 
 signed in their favor by the husband in 
 her name under such power of attorney. 
 
 National v. Jackson, (1886) 33 Ch. D. 1, 
 followed. Canada Furniture Co. v. Step- 
 henson, 19 M.R. 618. 
 
 6. Release of retiring partner — 
 
 Suretyship — Retiring partner a surety for 
 the continuing partner — Merger. 
 
 Defendants, W. & O'N., being in 
 partnership, gave a promissory note and 
 an I. O. U. to plaintiff for the amount 
 of the firm's indebtedness. The partner- 
 ship was dissolved, and an agreement 
 entered into between the partners, that 
 O'N. should pay all liabiUties. Plaintiff, 
 being aware of this arrangement, took 
 from O'N. his separate promissory note, 
 extending the time for payment. 
 
 If eld (Dtibuc, J. dissenting), that W. 
 had become a surety only for the debt, 
 and that he had been released by the 
 giving of time to O'N. 
 
 O'N., at the time of giving his separate 
 -note, executed ' a mortgage upon real 
 estate, conditioned to be void upon 
 paj^ment of the note and of any renewal 
 thereof. 
 
 Held, that the plaintiff's remedy upon 
 the original note and indebtedness had 
 not merged. Munroe v. 0' Niil, 1 M.R. 
 245. 
 
 6. Release of surety by giving time 
 to principal debtor — King's Bench Act, 
 s. 39, s-s. 14. 
 
 A surety relying on the giving of time 
 by the creditor to the principS debtor 
 
941 
 
 PRIOlR INCUMBEANCE. 
 
 942 
 
 as a defence to an action for the debt 
 mxist now, under sub-section 14 of section 
 39 of The King's Bench Act, 58 & 59 
 Vic, c. 6, show that he has suffered 
 pecuniary loss or damage as the reasonably 
 direct and natural result of the creditor 
 having given the extension of time. 
 
 The defendant, claiming that he was 
 entitled to be treated as a surety, proved 
 that, relying on the representations of 
 his co-debtor that the debt had been paid 
 and satisfied, he had made a settlement 
 of their partnership affairs and paid' a 
 large sum of money to him and given him 
 a formal release besides handing over to 
 him a large quantity of goods. 
 
 Held, that this was not evidence to 
 show that the defendant had been pre- 
 judiced by the plaintiffs having given 
 tirne to the co-debtor, as what the de- 
 fendant had done was done on the strength 
 of the statements made to him by his co- 
 debtor, and not in reUance on anything 
 the plaintiffs had done or omitted to do. 
 Blackwood v. Percival, 14 M.R. 216. 
 
 7. Right of surety to securities held 
 by creditor — Further advance by creditor — 
 Marshalling assets. 
 
 A as surety for B joined him in a mort- 
 gage of their respective properties to 
 secure an advance by C who was aware 
 of the suretyship, and C afterwards lent 
 a further sum to B on mortgage of the 
 latter' s property alone. 
 
 Held, that, after payment of the amount 
 due to C on the joint mortgage, A was 
 entitled to the benefit of that security 
 in priority to the subsequent advance 
 made by C on B's property ; and it made 
 no difference that C s claim against A 
 and B was paid off, not directly by A, 
 but in consequence of a sale of both 
 properties under a prior mortgage. 
 
 Drew V. Lockett, 32 Beav. 499, and 
 Higgins v. Frankis, 15 L.J. Ch. 329, 
 followed. 
 
 Duncan Fox & Co. v. North and South 
 Wales Bank, 6 App. Cas. 1, distinguished. 
 In Re Hamilton Trusts, 10 M.R. 573. 
 
 See Warranty, 5. 
 
 PRIORITY. 
 
 See Assignment foe Benefit of Credi- 
 tors, 3. 
 
 — Attachment of Goods, 6. 
 
 ' — Chattel Mortgage, II, 1; III, 1. 
 
 — Chose in Action, 4. 
 
 — Conditional Sale, 1. 
 
 — Constructive Notice. 
 
 — Deed of Land, 2. 
 
 — Estoppel, 5. 
 
 — Fi. Fa. Goods, 2, 4. 
 
 — Fraudulent Preference, I, 1. 
 - ■ — ■ Garnishment, VI, 5, 9. 
 
 — Highway, 1. 
 
 — Mechanic's Lien, I: IV, 1; VI. 
 
 — Mortgagor and Mortgagee, VI, 5. 
 
 — Ownership of Crops. 
 
 — Partnership, 6. 
 
 — Practice, XX, A, 2. 
 
 — Railways, XI, 3. 
 
 — Real Property Act, IV, 1; V, 5. 
 
 — Registration op Deed. 
 
 — Registry Act, 1, 2. 
 
 — Sheriff, 5. 
 
 — Solicitor's Lien for Costs, 6. 
 — ' Wages, 2. 
 
 — Will, I, 1. 
 
 PRIOR INCUMBRANCE. 
 
 See Practice, XVII, 3. 
 — Railways, X, 1. 
 
 PRIVATE INTERNATIONAL LAW. 
 
 Comity — Assets within jurisdiction of 
 foreign insolvent — Appointment of receiver 
 by foreign court — King's Bench Act, 
 R.S.M. 1902, c. 40, Rules 202, 507— 
 Service outside of the jurisdiction — Affi- 
 davits. 
 
 1. The appointment by a court of a 
 foreign State of a receiver of the assets 
 of an insolvent corporation domiciled 
 in such State does not necessarily effect 
 a transfer to such receiver of assets of 
 such corporation in Manitoba, and, upon 
 the plaintiffs showing that a resident of 
 Manitoba was indebted to such corpor- 
 ation in a sum exceeding $200, which 
 could be garnished, they were held en- 
 titled, under rule 202 of the King's Bench 
 Act, to an order allowing service of the 
 statement of claim outside the jurisdiction. 
 
 In re Mavdslay Son^ & Field, [1900] 
 1 Ch. 602 ; Woodward v. Brooks, (1889) 
 128 111. 222, followed. 
 
 Brand v. Green, (1903) 13 M.R. 101, 
 distinguished. 
 
 2. A motion for the allowance of 
 service of a statement of claim out of 
 the jurisdiction is an interlocutory and 
 not a final motion, and, under Rule 507 
 of the King's Bench Act, an affidavit 
 
943 
 
 PRIVILEGE. 
 
 944 
 
 in support making statements on infor- 
 mation and belief with the grounds thereof 
 is sufficient. Bank of Nova Scotia v. 
 Booth, 19 M.R. 471. - 
 
 PRIVILEGE. 
 
 See Libel, 7. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 See Examination for Discovery, 11. 
 — |;Production op Documents, 3, 13. 
 — lSolicitob and Client, III, 4. 
 
 PRIVILEGED DOCUMENTS. 
 
 See Production of Documents, 13, 14. 
 
 PRIVITY. 
 
 See Garnishment, VI, 10. 
 
 PRIVITY OF CONTRACT. 
 
 Liability of purchaser of equity of 
 redemption to mortgagee — Jurisdiction 
 in equity — Parties to mortgage bill — De- 
 murrer at hearing — Costs. 
 
 M. mortgaged land to McK., who 
 assigned to the plaintiffs, covenanting 
 that the money would be paid. The 
 mortgagor conveyed to P., subject to 
 the mortgage ; the expressed consideration 
 was 13,500, which wfis the amount agreed 
 to be paid for the equity of redemption ; 
 there was no covenant by P. that he 
 would pay the mortgage. P. afterwards_ 
 made payments to the plaintiffs on' 
 account of interest, and to obtain an 
 extension of time for payment. Upon 
 a bill for foreclosure, and for a personal 
 order against M., McK., and P., 
 
 Held, 1. No personal order could be 
 made against P. for. want of privity 
 between him and the plaintiffs. 
 
 2. Nor as against M.' or McK., there 
 being a complete remedy against them 
 at law. Boultbee v. Shore, 1 M.R. 22, 
 discussed. (Obsolete.) 
 
 3. A surety for payment of a mortgage 
 cannot be made a party to a foreclosure 
 bill, and the Court in such a case has no 
 jurisdiction to make a personal order 
 against him for payment. 
 
 4. A demurrer ore tenus can be urged 
 at the hearing upon the ground of want 
 of equity, but not for multifariousness. 
 Real Estate Loan Co. v. Molesworth, 3 M.R. 
 116. 
 
 See Contract, IV, 2. 
 
 — Vendor and Purchaser, VI, 13. 
 
 PROBATE. 
 
 See Evidence, 26. 
 
 — Real Property Act, V, 6. 
 
 — Rectification op Deed, 1. 
 
 — Title to Land , 4. 
 
 PROCEDENDO. 
 
 See Prohibition, III, 2. 
 
 PROCEDURE. 
 
 lee Company, IV, 4. 
 — Practice. 
 
 PRODUCTION OF DOCUMENTS. 
 
 , 1. Application for further af&davit 
 
 — Practice^Affidavit on production. 
 
 A contentious affidavit is not admissible 
 to contradict an affidavit on production, 
 but it may be shown from admissions in 
 letters written by the party making the 
 affidavit or in his pleadings 'that he has 
 or had in his possession or power other 
 documents relevant to the issue. In 
 that case, a further affidavit will be 
 ordered. 
 
 An affidavit verifying such letters is 
 not a contentious affidavit. Cowan v. 
 Drummond, 7 M.R. 575. 
 
 2. Better affidavit on production. 
 
 When a party to an action has made 
 and filed an affidavit on production of 
 documents in the ordinary form ' in 
 obedience to an order to' produce served 
 upon him, the opposite party must be 
 satisfied with such affidavit unless he 
 
945 
 
 PRODUCTION OF DOCUMENTS. 
 
 9^6 
 
 can show, from admissions or former 
 statements on oath of the affiant, that 
 there is a reasonable suspicion that he 
 has in his possession or power other 
 documents relating to the matters in 
 question. 
 
 Lyell V. Kennedy, (1884) 27 Ch. D. 20 ; 
 Moxley v. Canada Atlantic Ry. Co., 
 (1885) 11 P.R. 39 ; Wright v. Pili, (1868) 
 L.R. 3 Ch. 809 ; Compagnie Financier v. 
 Peruvian Guano Co., (1882) 11 Q.B.D. 
 55 ; Hall V. Truman, (1885) 29 Ch. D. 
 319, 3,nd Bray on Discovery, 181, followed. 
 
 The party seeking discovery cannot 
 get an order for a better affidavit merely 
 by showing that there are in the possession 
 or power of the opposite party letters 
 or other documents not mentioned in 
 the affidavit which might contain re- 
 levant matter, in the face of the statement 
 in the affidavit that there are none such. 
 Muir V. Alexander, 15 M.R. 103. 
 
 3. Better and further affidavit'. 
 
 In the affidavit of the defendants' 
 manager, on production of documents, he 
 stated that the defendants had in their 
 possession " The books of the said Bank, 
 consisting of deposit ledgers and liability 
 ledgers, manager's register of collateral 
 securities, letter boois ; " and also letters 
 that, had passed between the managers 
 at Brantford and Wiimipeg, which he 
 objected to produce on the ground that 
 they were privileged communications 
 relating solely to the defendants' case 
 and defence, and did not concern the 
 plaintiff's case. 
 
 Held, that the description of the books 
 was too indefinite, and that the defend- 
 ants should file a further affidavit showing 
 how many, and which of the books re- 
 ferred to, contained any entry relating 
 to the matters in question in the cause ; 
 the rule being that, when objections 
 against productions are made, the affi- 
 davit must describe the documents with 
 sufficient distinctness to enable the Court 
 to order production, if the objections 
 should be over-ruled : Taylor v. Batten, 
 4 Q.B.D. 85. 
 
 Held, also, following Morris v. Edwards, 
 15 A.C. 309, that sufficient had been 
 stated to excuse production of the letters 
 between the managers. Hector v. Can- 
 adian Bank of Commerce, 11 M.R. 320. 
 
 4. Copies of claim papers in in- 
 surance case — Discovery. 
 
 In an action upon an insurance pohcy 
 the plaintifi may be compelled to produce. 
 
 upon his examination in the cause, copies 
 of the claim papers sent by him to the 
 Insurance Company. 
 
 Semble, in all actions the parties may 
 upon such an examination be compelled 
 to produce all documents which they 
 would be bound to produce if called upon 
 for discovery in Equity. Morrison v. 
 City of London Fire Ins. Co., 6 M.R. 222. 
 
 6. Dismissal of bill for want of 
 prosecution — Non^prodvction by de- 
 fendant — Undertaking as to damages. 
 
 On a motion to dismiss the biU for 
 want of prosecution, it was objected that 
 one of the defendants had not obeyed 
 an order to produce. 
 
 Held, that mere default on the part 
 of a defendant to obey an order to pro- 
 duce does not preclude him from ihoving 
 to dismiss, unless the plaintiff has been 
 taking active steps to enforce the pro- 
 duction. 
 
 On appeal, the recital in the order of 
 the material used will govern in case of 
 dispute. 
 
 The Referee in chambers has no juris- 
 diction to order a reference as to damages 
 caused by the issue of an injunction. 
 Toronto Land Co. v. Scott, 1 M.R. 105. 
 
 6. Evidence ezcliisively in support 
 of case of party producing. 
 
 A party to an action is not entitled 
 to discovery of the evidences in the 
 possession of the opposite party which 
 exclusively relate to the case of the 
 latter, and the truth of a statement to 
 that effect respecting any" particular 
 document, made in the affidavit on pro- 
 duction of documents sworn to by one 
 party, cannot be questioned on an applica- 
 tion by the opposite party to compel 
 production of that document. ' 
 
 Lyell V. Kennedy, (1883) 8 A.C. 217 ; 
 Biddefr -v.'-Bridges, (1884) 29 Ch. D. 29, 
 and Morris v. Edwards, (1890) 15 A.C. 
 309, followed. Von Ferber v. Enright, 
 19 M.R. 383. 
 
 7. Examination on affidavit as to 
 documents — Officer of company — Pri- 
 vileged communications — Discovery. 
 
 1. When an affidavit on production of 
 documents *i made by an officer of a 
 company, 'anj other examinable officer 
 of the compaty may be examined upon 
 it, and his ansvers may be used to im- 
 peach the affidaTit on an application to 
 compel the ffling of a further and better 
 affidavit. 
 
947 
 
 PRODUCTION OF DOCUMENTS. 
 
 948 
 
 2. If. such last-mentioned officer on 
 his examination states that he does not 
 know whether or not certain documents 
 exist which, by the rules of the company, 
 should be in existence, he will be ordered 
 to inquire and obtain the information 
 necessary to enable him to answer fuUy 
 and explicitly. 
 
 3. Reports of the various officials and 
 servants of a railway company upon the 
 occurrence of a fire alleged to have been 
 caused by sparks from a locomotive, 
 and as to the condition of the locomotive, 
 if made in the regular course of duty 
 under the rules of the company, are not 
 privileged from production. 
 
 4. The fire having occurred on the 20th 
 day of the month, the officer was ordered 
 to produce all reports on the condition 
 of the locomotive from the first td the 
 last day of the month. Bain v. C.P.R., 
 15 M.R. 544. 
 
 8. Foreign Corporation — Affidavit 
 under sec. 50 of C.L.P. Act, 1854 — Appeal 
 from discretionary order — Practice — Dis- 
 covery. 
 
 An action against a foreign corporation, 
 upon a cause of action which arose out 
 of the jurisdiction, was brought in Man- 
 itoba, under 49 Vic, c. 35, s. 32 (M. 
 1886), on the ground of the. defendant 
 having assets in the Province. On an 
 application by the plaintiffs for dis- 
 covery under section 50 of C.L.P. Act, 
 1854, 
 
 Held, 1. Officers of the corporation, 
 residing out of the jurisdiction of the 
 Court, will not be required to make 
 discovery. 
 
 2. The local officers are not bound to 
 inform themselves of the transactions 
 of the corporation, out of which the cause 
 of action arose, which took place in the 
 foreign territory, for the purpose of afford-' 
 ing discovery to the plaintiff, and the 
 corporation is not bound to make' dis- 
 covery through its local officers. / 
 
 It is otherwise, if the corporation/has 
 voluntarily become a suitor by inyiking 
 the aid of the Court in its own beh^. 
 . There is an appeal from aa order 
 granting or refusing discovery. / 
 
 The apjjlication must be supported by 
 an affidavit of the plaintiff; \At, if there 
 are more than one plaintiff, ffle 'affidavit 
 of one is sufficient. / 
 
 Per Taylor, C. J.— The fiourt will not 
 m^e an order for discoyry when it is 
 clear that documents vfoA^ not be open 
 for inspection, but wheri there is doubt 
 
 the order will be made, and the privilege 
 may be shewn in the affidavit made in 
 obedience to the order. McDonald v. 
 C.P.R., 7 M.R. 423. 
 
 9. Inspection — Production of docu- 
 ments used upon examination. 
 
 A party producing documents upon 
 his examination in the cause is bound to 
 allow the opposite party to inspect and 
 take copies of them. Evans v. Balfour, 3 
 M.R. 243. 
 
 10. Issue under Real Property Act 
 
 — Barring party in default — Practice. 
 
 Under Rule 6 of Schedule R. of The 
 Real Property Act, R.S.M. c. 133, the 
 plaintiff, in an issue under The Real 
 Property Act, obtained an order for pro- 
 duction by the defendant within ten days 
 after service of the order upon him or 
 his attorney. The order was served 
 upon the attorney. The defendant did 
 not comply with the order, but his attor- 
 ney filed his own affidavit. Upon an 
 application to bar the defendant or com- 
 mit him for contempt, 
 
 , Held, that the attorney's affidavit was 
 insufficient. 
 
 Held, also, that, rule 6 being silent as 
 to the method by which production may 
 be enforced, if the equity rule were 
 adopted, four clear days notice must be 
 given, or, if the common law rule were 
 adopted, there must be personal service ; 
 as neither condition was compUed with, 
 the summons was dismissed. 
 
 Held, also, that an application to bar 
 must he made in the original cause or 
 matter and not in the issue, as in this 
 csSe. 
 
 / Semble, it must be within the power 
 /of the Court to deal with disobedience 
 of such an order in some way, as by 
 barring the party in default. Hardy v. 
 Desjarlais, 8 M.R. 401. 
 
 11. Not belonging to defendants — 
 
 Set off. 
 
 Defendants pleaded a set off, the 
 items of which were contained in the 
 books of the N.W.L. Co. Defendants 
 were shareholders in the Company, and 
 originally the sole owners of the stock. 
 
 Plaintiff obtained an order to examine 
 the defendant Carman on his pleas, 
 and, gave him notice to produce the book 
 containing the items of the set off, upon 
 such examination. Production was re- 
 fused. 
 
949 
 
 PRODUCTION OF DOCUMENTS. 
 
 950 
 
 Held, reversing the order of Dubuc, J., 
 that Carman could not be compelled to 
 produce the books. Bradbury v. Mofait, 
 1 M.R. 92. 
 
 12. Not in custody or control of 
 party — Striking out defence for norir-pro- 
 duction. 
 
 A defendant should not have his defence 
 struck out for non-production of docu- 
 ments which are not in any way in his 
 custody or control but are in the custody 
 of the officials of an incorporated body, 
 having its head office in a foreign country 
 and not being a party to the action. 
 
 Kearsley v. Philips, (1882) 10 Q.B.D. 
 36, and Fraser v. Burrows, (1876) 2 Q.B.D. 
 624, followed. Vulcan Iron Works v. 
 Winnipeg Lodge No. 122, 18 M.R. 137. 
 
 13. Privileged documents — Reports of 
 officials to company respecting accidents — 
 Practice — Discovery — Examination. 
 
 1. Reports made by the employees of 
 a railway company to their superior 
 officers in accordance with its rules con- 
 cerning an accident resulting in death, 
 and immediately thereafter, are not 
 privileged from production in an action 
 against the company for damages arising 
 out of the accident, if they were made in 
 the discharge of the regular duties of 
 such employees and for the ptirpose of 
 furnishing to their superiors information 
 as to the accident itseK and were not 
 furnished merely as materials from which 
 the solicitor of the company might make 
 up a brief, and an officer of the company 
 who has made an affidavit on production 
 of documents, must, on his examination 
 on such affidavit, answer questions as 
 to whether such reports were made, 
 who received them, and how they came 
 to be made, and generally furnish such 
 information concerning them that the 
 Court may be in a position to decide, on 
 a further motion, whether they are pri- 
 vileged or not. 
 
 Wooley V. North London Railway Co., 
 (1869) Ij.R. 4 C.P. 602, and Anderson v. 
 Bank of British Columbia, (1876) 2 Ch. D. 
 644, followed. 
 
 2. If any of the information sought 
 on such examination, ^md to which the 
 plaintiff is entitled, is not within the 
 knowledge of the deponent, he must 
 ascertain the facts and giv,e the inform- 
 ation: 
 
 Harris v. Toronto Electric Light Co., 
 (1899) 18 P.R. 286, foUowed. 
 
 3. That the names of some of the de- 
 fendants' witnesses would be disclosed 
 if the questions were answered is not a 
 sufficient reason for refusing to answer. 
 
 Marriott v. Chamberlain, (1886) 17 
 Q.B.D. at p. 165, and Humphries v. 
 Taylor, (1888) 39 Ch. D. 693, followed. 
 
 4. Questions as to whether reiiorts 
 had been sent in as to the condition 
 of the locomotive before the accident, 
 and as to repairs thereto, must also be 
 answered. Savage v. C.P.R., 15 M.R. 
 401. 
 
 14, Privileged documents — Reports of 
 officials of company respecting accidents — 
 LHscovery — Examination — Evidence to con- 
 tradict affidavit on production. 
 
 1. In an action for damages resulting 
 from a railway accident, when negUgence 
 is charged, reports of officials of the com- 
 pany as to the accident made before the 
 defendants had any notice of htigation, 
 and in accordance with the rules of the 
 company, are not privileged from pro- 
 duction, although one of the purposes for 
 which they were prepared was for the 
 information of the company's solicitor 
 in view of possible htigation. 
 
 Wooley V. North London Ry. Co., 
 (1869) L.R. 4 C.P. 602, followed. 
 
 2. The fact that the reports sought 
 to be withheld were written on forms all 
 headed, " For the information of the 
 sohcitor of the company and his advice 
 thereon," is not sufficient of itself to 
 protect them from production. 
 
 Hunter v. G.T.R. Co., (1895) 16 P.R. 
 385, distinguished. 
 
 3. When the officer of the defendants 
 who made the affidavit on production 
 was cross-examined upon it and as a 
 result made a second affidavit producing 
 a number of documents for which he 
 had claimed privilege in the first, the 
 examination on the first affidavit may 
 be uised to contradict the statements 
 in the second, although there was no 
 further examination. 
 
 4. All affidavit on production cannot 
 be contiadicted by a,, controversial affi- 
 davit ; but, if from any source an 
 admission of its incorrectness can be 
 gathered, the affidavit cannot stand. 
 
 Jones V. Monte Video Gas Co., (1880) 
 5 Q.B.D. 55fc ; Bewicke v. Graham, (1881) 
 7 Q.B.D. 400, and Roberts v. Oppenheim, 
 (1884) 26 Ch. D. 734, followed. Savage 
 V. C.P.R., 16 M.R. 381. 
 
951 
 
 PROHIBITION. 
 
 952 
 
 15. Receiver — Railway Company — 
 Practice. 
 
 The opposite party in a suit is entitled 
 to the production of the books of a rail- 
 way company, although the company 
 may be in the hands, of a receiver, who is 
 entitled to the c^lstody of the books and 
 documents, if he has not actually taken 
 possession of them. 
 
 The usual order for production was 
 varied in this case by directing only that 
 the books and documents be produced 
 to the plaintiffs or their soUcitors, on 
 demand after twenty-four hours' notice 
 at the coinpany's general ,ofl5ces, and 
 that the plaintiffs or their soUcitors be 
 allowed to take copies of, or extracts 
 from, such portions of the contents as 
 related to the matters in question. Max- 
 well V. Manitoba & N.W. Ry. Co., 11 
 M.R. 149. 
 
 See Amendment, 9. 
 
 — Examination for Discovert, 6. 
 
 — Examination of Jtidgmbnt Debtor, 
 
 10, 11. 
 
 — Mandamus, 4. 
 
 — Practice, XXVIII, 8, 21. 
 
 SBCtTHITY FOE CoSTS, I, 1. 
 
 PROHIBITION. 
 
 I. County Court, Jurisdiction of. 
 II. Judge in Chambers, Jurisdiction 
 
 OF. 
 
 III. Miscellaneous Cases. 
 
 I. County Court, Jurisdiction of. 
 
 1. Abandonment of excess — Costs on 
 rule nisi. 
 
 The plaintiff sued in the County Court/ 
 to recover $250 ; on the trial he proved 
 that the debt amounted to $573. The 
 defendant objected to the jurisdiction of 
 the Court, as the claim exceeded /the 
 amount allowed in the County Courts 
 Act, 50 v., c. 9, s. 45. The County Court 
 Judge then allowed the plaintiff to sfaiend 
 by abandoning the excess over $2^0, and 
 gave judgment for that amount. 
 
 On application for prohibition/ 
 
 Held, that, so far as jurisdiction was 
 concerned, the action could nd be enter- 
 tained without an abandoniBent of the 
 excess being made in the fi/st instance, 
 and that there was no power of amend- 
 ment where this was not dene. 
 
 The rule nisi did not ask for costs. 
 No one appeared for the plaintiff. 
 
 Held, that, where a rule nisi does not 
 ask for costs, costs are not given unless 
 cause be shown to the rule. 
 
 Dougall v. Leggo, 10 C.L.T. Occ. N. 387. 
 
 2. Abandonment of excess — Un- 
 settled account — Attachment. 
 
 Section 45 of the County Courts Act, 
 1887, provides that "No greater sum than 
 $250 shall be recovered in any action 
 for the balance of an unsettled account, 
 nor shall any action for such balance 
 be sustained where the unsettled account, 
 forming the subject matter to be in- 
 vestigated, in the whole- exceeds $400." 
 
 Sub-section (1) of above section pro- 
 vides that " a claim in contract for any 
 amount may be sued or pleaded as a 
 set off in the County Court, provided 
 the excess over $250 is abandoned .... 
 Provided that in no case shall a greater 
 amount than $250 be recovered in the 
 County Court." 
 
 Held, (KiLLAM, J., dissenting), that, 
 where the balance of an unsettled account 
 of oveir $400 exceeds $250, the plaintiff 
 may abandon the excess and sue in the 
 County Court for and recover $250. 
 
 Per KiLLAM, J. The section and sub- 
 section are inconsistent and the rule that, 
 the Court being an inferior court and 
 having only the jurisdiction conferred by 
 statute, this jurisdiction must not be 
 presumed where it is not distinctly given, 
 should be appUed ; and the clause, 
 limiting the jurisdiction in cases of un- 
 settled accoimts to those accounts which 
 origiiially did not exceed $400, must 
 prevail. 
 
 'Held, also, sections 40 to 45 inclusive 
 of the County Courts Act, 1887, fix the 
 limits of the jurisdiction of the Court, 
 and in that respect control the sections 
 relating to attachment. Dougall v. Leggo, 
 7 M.R. 445. 
 
 3. Acquiescence in jurisdiction — 
 
 Waiver — Assets in Manitoba of value of 
 $200 — Allowing service out of jurisdiction. 
 G. issued a writ in the County Court of 
 Selkirk against C. for breach of con- 
 tract. C. lived in Ontario, and the 
 cause of action arose there. G. obtained 
 an order from the County Court Judge 
 allowing service on C. out of the juris- 
 diction, on an affidavit that C. had 
 assets in Manitoba to the value of $200 
 at least. C. then applied to have the 
 writ and service set aside for want of 
 
953 
 
 PROHIBITION. 
 
 954 
 
 jurisdiction, but the application was 
 dismissed. Counsel for C. attended at 
 the trial and again objected to the juris- 
 diction, but cross-examined plaintiff's 
 witness. A verdict was entered for plain- 
 tiff. Afterwards counsel for defendant 
 obtained a summons from the County 
 Court Judge to set aside the verdict, 
 on the grounds of surprise and want of 
 good faith. On this application no 
 reference was made to the question of 
 jurisdiction. While this motion was pend- 
 ing defendant applied to this Court for 
 prohibition. 
 
 Held, that the defendant, having taken 
 exception to the jurisdiction, had not lost 
 his right to prohibition merely because 
 he allowed the case to be tried and judg- 
 ment signed, especially as on the trial he 
 still took exception to the jurisdiction ; 
 but that, on the subsequent motion to 
 set aside the judgment, there was such a 
 complete acquiescence in the jurisdiction 
 with fuU knowledge of the facts, that this 
 Court should not interfere. 
 
 Held, also, that the provisions of 
 section 32 of The Administration of 
 Justice Act, 1886, (R.S.M.,^ c. 1, s. 24) 
 for allowing service of writs of summons 
 out of Manitoba, do not apply to the 
 Coimty Courts. Gibbins v. Cfmdvxick, 
 8 M.R. 209. 
 
 4. Discretion to order — County Court 
 — Practice — Jurisdiction. 
 
 Where the want of jurisdiction of an 
 inferior Court does not appear on the face 
 of the proceedings and the application 
 for prohibition is not made until after 
 the jud^ent or verdict in that Court, 
 the applicant is not as of right entitled 
 to the writ, but the Superior Court has 
 a discretion to refuse it if it seems in- 
 equitable to grant it. 
 
 In this case the objection to the juris- 
 diction was on account of the residence 
 of the defendant being in Ontario, but 
 such objection was not taken in the dis- 
 pute note although such ground of de- 
 fence is one that should be taken thereby. 
 The Judge of the County Court before 
 whom the action was tried refused to 
 allow an amendment setting up the ob- 
 jection. The claim was not a large one, 
 the plaintiffs had apparently gone to 
 considerable trouble and expense to 
 meet the defence raised in the dispute 
 note, and the defendant had not accounted 
 for his failure to object to the jurisdiction 
 by his dispute note, or to come into 
 
 this Court before judgment and ask for 
 prohibition. 
 
 Held, that under these circumstances 
 the Court, having a discretion, should 
 refuse the writ of prohibition. 
 
 Held, also, that the rule for prohi- 
 bition should have been directed to the 
 regular and duly appointed Judge of the 
 County Court, and not to aiiother Judge 
 who had merely acted for the regular 
 Judge at that particular trial, and who 
 was now functus officio. This objection, 
 however, was not raised on the appUca^ 
 tion before a single Judge of this Court, 
 and the FuU Court did not decide whether 
 it should give effect to it on rehearing, 
 as prohibition was refused on the other 
 grounds. Maxwell v. Clark, 10 M.R. 406. 
 
 6. Discretion to order. 
 
 This action was commenced in the 
 County Court of Brandon on a promissory 
 note dated and payable at Winnipeg. 
 In the writ of summons the, defendant, 
 the maker of the note, was described 
 as '■ of Carberry," where he resided. A 
 dispute note was filed stating that de- 
 fendant was not indebted to the plaintiff 
 as alleged. 
 
 When the case came on for trial, the 
 defendant was not present or represented 
 by any one. A verdict was then entered 
 for the plaintiff, but as, from circum- 
 stances connected with the service of 
 the summons, it seemed possible that the 
 defendant might have been misled as to 
 the date of the trial, the Judge stayed 
 proceedings until the next Court to 
 permit him to apply to re-open the case. 
 
 On the next court day, defendant ap- 
 phed to have the case re-opened, and to 
 amend the dispute note, having given 
 the plaintiff's solicitor notice of his in- 
 tention to do so, and at the same time 
 he raised, although not by dispute note, 
 the question of jurisdiction, claiming 
 that the want of it was apparent on the 
 face of the proceedings. The Judge 
 re-opened the case and directed it to be 
 tried at the next sitting of the Court, 
 allowing an amendment of the dispute 
 note so as to raise some proposed defences, 
 but refused to entertain the question of 
 jurisdiction, holding that defence to 
 have beea waived. Defendant then 
 moved for i writ of prohibition. 
 
 Held, that the want of jurisdiction was 
 not apparent on the face of the pro- 
 ceedings, as Ciere might be a place called 
 "Carberry" vyithin the Judicial Divi- 
 sion of Brandon, so f&r as the Court 
 
955 
 
 PROHIBITION. 
 
 956 
 
 knew ; and, following Maxwell v. Clark, 
 10 M.R. 406, and Gibhins v. Chadwick, 8 
 M.R. 209, the Court had thfe discretion 
 to grant or refuse prohibition, which 
 should, in this case, be exercised in 
 favor of plaintiff, as it was not a case of a 
 total want of jurisdiction in any County 
 Court, but only a question as to which 
 particular Court could entertain the 
 case. Elliott v. May, 11 M.R. 306. 
 
 6. Non-resident defendant — Ac- 
 quiescence — Jiidge's order under sec. 48. 
 
 Where an action in a County Court 
 is brought in a county other than the 
 one in which the cause of action arose, 
 or the defendant resides or carries on 
 business, and the defendant, in applying 
 for a writ of prohibition, in his affidavit 
 makes the general statement " that the 
 said Court has no jurisdiction to enter- 
 tain the suit," the onus is on the plaintiff 
 to shew that a judge has made an order, 
 under section 48 of the County Courts 
 Act, 1887, authorizing the suit to be 
 brought in the Court in which it was 
 brought. 
 
 A defendant filed a dispute note in 
 the County Court, setting up a defence 
 on -the merits,, and also expressly object- 
 ing to the jurisdiction of the Court. 
 
 Held, the rule is, that, wh"en the want 
 of jurisdiction arises, not from the nature 
 of the subject of the suit, but because 
 the defendant is not resident within the 
 jurisdiction, then, if the defendant appears 
 for the purpose of entering into the 
 merits of the suit, he cannot afterwards 
 apply for prohibition ; but if he takes 
 express objection to the jurisdiction, and 
 
 Eromptly applies for prohibition, he cannot 
 e said to have submitted to the juris- 
 diction. Bank of Montreal v. Poyner, 
 7 M.R. 270. 
 
 / 
 
 7. Non-resident defendant — NoHci of 
 objection to jurisdiction — Dispute^ nJAe — 
 Costs — Meritorious defence. / 
 
 The plaintiff sued the defendant in a 
 County Court, within the jurisdiction 
 of which he did not reside and tie cause 
 of action did not arise. The jlefendant 
 did not file a dispute note, b«t notified 
 the plaintiff that he disputed/ the juris- 
 diction of the Court, and intended to 
 apply for prohibition if the/action were 
 persisted in. Notwithstanding this notice, 
 the plaintiff proceeded to judgment. The 
 defendant then applied fo/ prohibition. 
 
 Held, that the defendant was entitled 
 to the prohibition with (Josts, although he 
 did not show a meritorious .defence. 
 
 Held, also, that, when there is nothing 
 on the face of the proceedings to show 
 want of jurisdiction, and the objection 
 arises only upon shewing the residence 
 of a party and the local origin of the 
 cause of action, and the facts are not 
 brought forward until after judgment, 
 the granting of prohibition is in the 
 discretion of the Court. 
 
 Robertson v. Comwell, 7 P.R. 297, 
 followed. Rutherford v. Walls, 8 M.R. 
 
 8. Title to land — Effect of raising 
 objection to jurisdiction in dispute note — 
 Taxe^-^Assessment of homestead before 
 patent — Ldability of occupant — Rates — 
 Evidence — Owner or occupant. 
 
 The plaintiff, a rural municipality, 
 sued the defendant in a County Court for 
 the taxes on a half section of land for the 
 years 1888, 1889', 1890 and 1891. The 
 defendant paid into court the taxes for 
 1891, and defended as to the taxes for 
 the other years. In his defence note, 
 the defendant took objection to the juris- 
 diction of the Court, on the ground that 
 the title to land was in question. At the 
 opening of the trial, the objection was 
 again taken, but the Judge proceeded 
 with the trial. The defendant was 
 called as a witness, and stated that ■ he 
 took up the land in 1882 as a homestead 
 and pre-emption, but never occupied it 
 more than a few weeks at a time. That 
 he last occupied it in 1887 or 1888 ; that 
 his entry was cancelled in 1890 ; that he 
 pAid taxes from 1882 to 1887 ; that the 
 government allowed him to nominate a 
 purchaser ; that he arranged with M. 
 to buy for him ; that letters patent were 
 granted to M., and that he afterwards 
 repaid M. the purchase money and 
 interest, and was a;t the time of the trial 
 the owner of the land. 
 
 The plaintiff put the ' assessment and 
 collection rolls in evidence. In the 
 assessment rolls, the ' defendant was 
 assessed as owner. In the collection rolls 
 as " owner or tenant." 
 
 Held, 1. That the assessment rolls 
 were not conclusive as to the defendant's 
 liability, but that lands of the Crown 
 held under homestead or pre-emption 
 entry were assessable as against the 
 person so holding. 
 
 2. That the mode of describing the 
 defendant in the assessment roll, whether 
 
957 
 
 PROHIBITION. 
 
 958 
 
 as owner or otherwise, was immaterial to 
 his liabiUty. 
 
 3. That, as the defendant admitted his 
 habiUty, no question of title was in 
 dispute. 
 
 4. That a dispute note does not stand in 
 the same position as a plea at law under 
 the old practice, and that the Judge 
 originally, and the Court on motion for 
 prohibition, must enquire into and de- 
 termine the question as to whether there 
 was a real dispute concerning the owner- 
 ship of the land, upon which the liabiUty 
 of the defendant was contingent. Rural 
 Mun. of South Norfolk v. Warren, 8 
 M.R. 481. 
 
 II. Judge in Chambers, Juhisdiotion op. 
 
 1. Powers of Judge. 
 
 A Judge sitting in Chambers has no 
 power to order the issuer of a writ of pro- 
 hibition to a County Court Judge. Watson 
 v.LiZZico, 6M.R. 59. 
 
 2. A Judge in Chambers has no juris- 
 diction to entertain a motion for a pro- 
 hibition, to a County Court Judge. 
 
 Watson V. Lillico, 6 M.R. 59, followed. 
 Re Landshorough, 21 M.R. 708. 
 
 III. Miscellaneous Cases. 
 
 1. Irregularity— Co«ra«2/ Court— Judg- 
 ment not delivered within •period -pre- 
 scribed by County Courts Act, R.S.M., 
 c. 33, s. 130, as amended by s. 1 o/ c. 6 
 of 56 Vic. (M.) 
 
 AppUcation for a writ of prohibition 
 against a judgment of the County Court 
 of Selkirk, entered 11th January, 1899, 
 on the decision then rendered in an action 
 tried in Augufet, 1898. Defendant re- 
 sided in Ontario and notice of the judg- 
 ment was at once given to her soUcitor 
 here. 
 
 On 25th April an action was brought 
 in an Ontario Division Court on the 
 judgment in question, and judgment 
 thereon was recovered there on 17th 
 May. Notice of the application for 
 prohibition was not served until 20th 
 May. 
 
 Held, that the provision requiring 
 the Judge to announce his decision 
 within 60 days is a mere matter of pro- 
 cedure and the delivery of judgment 
 afterwards is to be considered only an 
 irregularity ; that the proper remedy 
 was to appeal against the judgment under 
 the provisions of The County Courts 
 Act ; and that in the exercise of the dis- 
 
 cretion of the Court, under aJl the cir- 
 cumstances of this case, the writ of pro- 
 hibition should be refused, more especially 
 as defendant was not prejudiced by the 
 delay in rendering judgment, and it was 
 shown that plaintiff did not intend to 
 take any steps to enforce the judgment in 
 this Province. Doidge v. Mimms, 12 
 M.R. 618. 
 
 2. Liquor License Act, s. 174 — 
 
 Certiorari — Procedendo — Second summons 
 on original information after conviction 
 quashed — Return of information to Justices 
 — Justice of the Peace. 
 
 The conviction of defendant by a 
 Justice of the Peace under section 174 
 of the Liquor License Act of Manitoba,' 
 having, together with the information 
 on which it was based, been removed 
 into this Court by certiorari, was quashed 
 on the ground that the original summons 
 had not been personally served on the 
 defendant, and that she had not author- 
 ized any person to appear for her on 
 its return. 
 
 At the same time the Judge who quashed 
 the conviction, relying on section 895 of 
 the Criminal Code, 1892, ordered that 
 the information should be returned to 
 the Justice, who issued a second summons 
 upon it, it being too late for the prose- 
 cutor to lay a second information in 
 respect of the offence charged. 
 
 Held, on motion for prohibition, that 
 there was no authority for the return of 
 the information to the convicting Justice 
 after the quashing of the conviction, as 
 the section of, the Criminal Code referred 
 to only applies in cases where before that 
 section a procederf,do would have been 
 issued to send back a record ; that the 
 information was, therefore, not properly 
 before the Justice when he issued the 
 second summons thereon, and that he had 
 no jurisdiction to proceed upon it. 
 
 Review of cases in which a record filed 
 in a superior Court upon a certiorari may 
 be sent back to the inferior Court by a 
 proc^ndo. 
 
 Appeal from judgment of Bain, J., 
 refusing prohibition allowed, and pro- 
 hibition granted without costs. Reg. v. 
 Zickrick, 11 M.R. 452. 
 
 3. Preparation of Voters' Lists— 
 
 The Manlmd Suffrage Registration Act, 
 63 & 64 V'ic., c. 25 {M.)—The Manitoba 
 Voters' Lists Act, 63 & 64 Vic., c. 62. 
 
 A person claiming to be entitled to 
 be registered as an elector in the Electoral 
 
959 
 
 PROHIBITION OF SALE OF LIQUOR. 
 
 9bO 
 
 Division of South Winnipeg and to have 
 had his name on the last revised list 
 of electors for the division applied for a 
 prohibition to restrain the Board of 
 Manhood Suffrage Registrars, as con- 
 stituted 'under The Manhood Suffrage 
 Registration Act, 63 & 64 Vic, c. 25 (M.) 
 from proceeding to prepare the Usts of 
 voters for that constituency under the 
 provisions of the Act, which they were 
 about to do for the purpose of a bye- 
 election then pending. On the motion 
 coming on' for hearing, it was claimed 
 that the Board had no power to go on 
 with their proceedings because, under 
 section 70 of The Manitoba Voters' 
 List Act, 63 & 64 Vic, c. 62, the former 
 revised lists were to be used until new 
 list's had been prepared and revised 
 throughout the 'Province, and, further, 
 that, even when that was done, the Board 
 were not to prepare the whole Ust, but 
 only lists supplemental to the Usts pre- 
 pared under The Voters' Lists Act. It 
 was contended on behalf of the Board 
 that there was no power in the Court to 
 interfere with a Board of thfit kind by 
 prohibition. 
 
 Held, (1) That a Judge should not 
 undertake to decide difficult questions 
 of that kind on a summary application 
 such as was made, but that the parties 
 should be left to declare in prohibition 
 which might still be done under' The 
 Queen's Bench Act. 
 
 (2) Although the Board was about 
 to prepare and revise lists of electors under 
 the Act, it could not be assumed that they 
 would decide or attempt to decide what 
 Usts the returning officer should ' use at 
 the coming election, or would determine 
 or attempt to determine whether the vote 
 of the appUcant should be received or 
 not in the event of his name not being 
 put on the Ust they were about to pre^ 
 pare ; and therefore the appUcant could 
 not say that the Board intended to take 
 away any of his rights, and there was no 
 necessity for an immediate prohibiten. 
 
 Motion dismissed without costs./ Re 
 The Board of Manhood Suffrage Regis- 
 trars for South Winnipeg, 13 M.R.i45. 
 
 4. Transcript of judgmem from 
 County Court — Judgment thJreon in 
 Q.B. ■ 
 
 The plamtiff obtamed a judgment in 
 a County Court by default/ and then 
 entered judgment in the Quefea's Bench on 
 a transcript of that judBuent. After- 
 wards defendant obtained /i writ of pro- 
 
 hibition against the County Court, and 
 then moved , in Chambers to have the 
 Q.B. judgment set aside. , 
 
 Held, that the Q.B. judgment de- 
 pended on the one in the County Court 
 and, prohibition having been granted, it 
 must be set aside. Ldbatt v. Chisholm, 
 7 M.R. 502. 
 
 See Appeal feom Okdeb, 5. 
 
 — Costs, XIII, 21. 
 
 — County Court, I, 7, 8, 11, 12. 
 
 — Criminal Law, I, 2. 
 
 — Magistrate. 
 
 — Municipal Elections, 5. 
 
 — Municipality, I, 2; VIII, 3. 
 
 PROHIBITION OF SALE OF LIQUOR. 
 
 Liquor License Act, R.S.M. 1892, 
 C. 90, s. 68 — Ultra vires — Quashing by- 
 law — Local option. 
 
 It is ultra vires of a Provincial Legis- 
 lature to empower a municipality to 
 pass by-laws which have the effect of 
 prohibiting the sale of intoxicating Uquor 
 in its territory, at least to any greater 
 extent than such selUng was prohibited 
 in the case of Hu^on v. South Norwich, 
 19 A.R. 343, 24S.C.R. 155, viz.: smaU 
 retail sales which could be forbidden 
 under the poUce powers proper to be 
 committed to municipal bodies without 
 interfering with trade and commerce. 
 
 Under section 58 of the Liquor License 
 Act, R.S.M. c 90, the defendant mun- 
 icipality passed a by-law forbidding the 
 receiving of any money for a Ucense, and 
 under the same section and section 94 
 the commissioners are forbidden to grant 
 a Ucense without evidence that the 
 proper fees have been paid, whilst other 
 sections of the Act prohibit the sale of 
 Uquors without such Ucense having 
 been obtained. 
 
 Held, that section 58, taken along 
 with the other sections referred to, must 
 be construed as an attempt to confer 
 upon municipaUties the power to totally 
 prohibit the Uquor traffic within its 
 boundaries, and that the by-law in ques- 
 tion should be quashed. 
 
 In re Prohibitory lAguor Laws, 24 S.C.R. 
 170, followed. Crothers v. Rural Mun. 
 of Louise, 10 M.R. 523. 
 
 This case was practically overruled by 
 the decisions of the Privy Council in A. G. 
 for Ontario v. A. G. for Dominion, [1896] 
 
961 
 
 PROHIBITORY LIQUOR LEGISLATION. 
 
 962 
 
 A.C. 348, and A. G. of Manitoba v. Mani- 
 toba License Holders' Association, [1902] 
 A. C. 73. 
 
 PROHIBITORY LIQUOR LEGISLA- 
 TION. 
 
 See Constitutional Law, 12. 
 
 PROPERTY PASSING. 
 
 See Sale of Goods, II; IV, 4; VI, 2, 6. 
 
 — Warranty, 2. 
 
 PROSTITUTE. 
 
 Criminal Law, XV, 4. 
 
 PROLIXITY. 
 
 See Pleadinq, VII. 
 
 PROMISSORY NOTE. 
 
 See Accord and Satisfaction, 3. 
 
 — Bills and Note^. 
 
 — County Court, II, 6. 
 
 — Fraudulent Conveyance, 13. 
 
 — Mechanic's Lien, IX, 2, 3. 
 -^ Summary Judgment, I, 3. 
 
 — Warranty, 5. 
 
 PROMULGATION OF BY-LAW. 
 
 See Municipality, V, 2. 
 
 PROOF— FAILURE OF 
 
 See Vendor and Purchaser, VI, 17. 
 
 PROVINCE OF JUDGE AND JURY. 
 
 See Master and Servant, I, 1. 
 
 PROVINCIAL LEGISLATURE, 
 POWERS OF. 
 
 See Constitutional Law. 
 
 — Foreign Court, 2. 
 
 — Law Stamps. 
 
 — Liquor License Act, ll. 
 
 — Municipality, VII, 6. » 
 
 — Prohibition op Sale of Liquor. 
 
 — Solicitor and Client, I, 3. 
 
 — Winding-up, I, 3. 
 
 PROWLING ASSIGNEE. 
 
 See Vendor and Purchaser, IV, 2. 
 
 PUBLIC BUILDINGS. 
 
 e Mechanic's Lien, VII, 1. 
 
 PROOF OF HANDWRITING. 
 
 See Criminal Law, XVII, 11. 
 — Extradition, 2. 
 
 PUBLIC CONVENIENCE. 
 
 See Crown Lands, 1. 
 
 PROOF OF JUDGMENT. 
 
 See Interpleader, III. 
 
 PROPERTY IN SAND AND GRAVEL 
 ON HIGHWAYS. 
 
 See Appeal from CotnsfTY Court, IV. 
 
 PUBLIC DOCUMENT, 
 
 See Constitutional Law, 2. 
 — Evidence, 3. 
 
 PUBLIC HEALTH ACT. 
 
 R.S.M. 1902, c. 138, ss. 32, 67, 96, 
 101, 102 — lAahilUy of municipality for 
 services of physician and nurse employed 
 
963 
 
 PUBLIC INCONVENIENCE. 
 
 964 
 
 by health inspector to take care of a small- 
 pox patient. 
 
 Section 67 of the Public Health Act, 
 R.S.M. 1902, c. 138, which enables the 
 health oflBcer to act by removing a person 
 afflicted with any infectious or con- 
 tagious disease to a separate house or 
 by otherwise isolating him, " and by 
 providing nurses and other assistance and 
 necessities for him at his own cost and 
 charge- or the cost and charge of his 
 I)arents or other person or persons 
 liable for his support if able to pay for 
 the same, otherwise at the cost and charge 
 of the municipahty," should be read and 
 construed together with sections 95, 101 
 and 102 of the Act, and, by the true in- 
 terjjretation of all these provisions, per- 
 sons performing services as nurses or 
 furnishing necessities at the request of 
 a health officer for a small-pox patient 
 are entitled to be paid at once by the 
 municipality, without proving^ that the 
 parents or other persons Uable are unable 
 to pay for the same. 
 
 Under section 32 of the Act, an in- 
 spector appointed by the Government 
 has the same powers as a health officer, 
 and may exercise such powers without 
 having first suspended or superseded the 
 local health officer. 
 
 Although the Act does not. distinctly 
 provide for the employment of a phy- 
 sician, yet a person who is a physician, 
 and is employed to act both as doctor 
 and nurse for a smaU-pox patient, may 
 recover at least for his services as nurse, 
 and $15 per day was not considered 
 excessive for the services of so skilled a 
 nurse as a physician should be, con- 
 sidering also the- special risk he ran. 
 
 Quaere, ■ whether the emjjloyment of 
 a physician is not authorized by the 
 word* " providing other assistance and 
 necessities " in section 67. Cameron v. 
 Dauphin,^ M.R. 573. 
 
 PUBLIC INCONVENIENCE. 
 
 See Injunction, I, 4. 
 
 of distress issued by two justices of the 
 peace under The - Master and Servant's 
 Act. The warrant was addressed to 
 all or any of the constables or other 
 peace officers -in the district of Carberry, 
 and was handed to the defendant, a 
 sheriff's bailiff. He at first undertook 
 to execute it, but afterwards on taking 
 advice refused to go on with it, and re- 
 tiu'ned it to the plaintiff's attorney. 
 
 Held, that a sheriff's baihff is not a 
 general but a special agent of the sheriff 
 who employs him, and cannot be treated 
 as a pubhc officer or as a peace officer 
 within the meaning of sub-section 8 
 of section 3, of the Criminal Code^ 1892, 
 and that the defendant had no right to 
 execute the warrant entrusted to him, 
 and could not be made liable for refusing 
 to do so. Latta v. Owens, 10 M.R. 153. 
 
 See Criminal Information. 
 
 PUBLIC OFFICER. 
 
 Action against — Neglect to execute 
 warrant — Sheriff's bailiff not a public 
 officer. 
 
 The plaintiff claimed damages for the 
 defendant's failure to execute a warrant 
 
 PUBLIC PARKS ACT. 
 
 R.S.M. 1902, c. 141, ss. 39, 43, 
 
 Municipal Act, R.S.M. 1902, c. 116, ss. 
 755, 769 — Entry by Parks Board on land 
 prior to expropriation — Powers 'of Parks 
 Board — Right of action — Arbitration — In- 
 junction — Construction of Statutes. 
 
 1. Section 755 of the Municipal Act, 
 R.S.M. 1902, c. 116,. giving power to the 
 council of a city to acquire by purchase 
 or expropriation land for park purposes, 
 read together with section 769, does 
 not authorize the council to enter upon 
 the land, without the consent of the 
 owner, without first taking steps to 
 expropriate the land and obtain an award 
 of arbitrators and paying the amount 
 awarded for compensation to the Coimty 
 Court Clerk. 
 
 2. Section 44 of the Pubhc Parks Act, 
 R.S.M. 1902, c. 141, giving the Parks 
 Board of a town aU the powers of the 
 council under the Municipal Act in regard 
 to aU expropriations of lands and property 
 deemed necessary to be taken or entered 
 upon for the purposes of a park, does not 
 warrant the Board in entering upon land, 
 or doing anything to injuriously affect it, 
 without the consent of the owner, until 
 after they have regularly expropriated 
 and paid for the property ; and a person 
 whose land has been thus entered upon 
 or injuriously affected has a right of 
 action for damages against the Parks 
 Board, and is not restricted to the remedy 
 
.965 
 
 PUBLIC SCHOOLS ACT. 
 
 966 
 
 by arbitration under the expropriation 
 and arbitration clauses of the Municipal 
 Act. 
 
 North Shore By. Co. v. Pion, (1889) 
 14 A.C. 612; Parkdak v. West, (1887) 
 12 A.C. 602, and AHhur v. 6.T.B. Co., 
 (1895) 25 O.R. 40, foUowed. 
 
 3. Statutes which encroach upon the 
 rights of the subject in respect of hiS 
 private property, or which enable pubUc 
 corporations to take his property without 
 his consent, must be construed with the 
 greatest strictness : Maxwell on Statutes, 
 399; Dillon on Mun. Corp., s. 603, et seq. 
 
 4. When a trespass is being continued 
 and substantial damage is being caused, 
 the Court will generally interfere to 
 restrain the further commission of tjne 
 trespass and may grant a mandatory 
 injunction. 
 
 Kerr on Injunctions, 84, 114 ; Wright 
 V. Turner, (1863) 10 Gr. 67, and C.P.B. 
 V. Parke, [1899] A.C. 535, followed. Smith 
 V. Public Parks Board of Portage la 
 Prairie, 15 M.R. 249. 
 
 See Garnishment, V, 8. 
 
 — Illegality, 4. 
 
 — Misrepresentation, IV, 1. 
 
 PUBLIC SCHOOLS ACT. 
 
 1. Election of school trustee — Ne- 
 glect to make declaration of office — Powers 
 of inspector — Practice. 
 
 An inspector appointed under the 
 Public Schools Act, R.S.M. 1902, is not 
 authorized by section 32 of the Act or 
 otherwise to inquire \\'h^ther a trustee 
 duly elected has forfeited his office under 
 section 243 of the Act by refusing or 
 neglecting to take the declaration of 
 office required by section 31. Where an 
 inspector undertook such inquiry and 
 declared the seats of two trustees vacant 
 and. two new trustees were subsequently 
 elected at a meeting' of the ratepayers 
 called by direction of the inspector, the 
 proceedings were declared null and void, 
 and the plaintiff corporation held entitled 
 to succeed in an action of replevin com- 
 menced by direction of the old board 
 against the two new trustees and others 
 who -had broken into the school .building 
 and taken away the furniture. 
 
 Chaplin v. Woodstock, (1886) -16 O.R. 
 728, followed. 
 
 QucEre, whether defeildants could re- 
 sist the action which was brought in the 
 
 name of the school corporation, the 
 acknowledged owner of the goods, and 
 whether defendants in any case could 
 do more than apply to the Court to stay 
 the use of the name of the corporation 
 in the action on the ground that its use 
 was not authorized by those who were 
 lawfully the trustees. School District of 
 Youville V. Bellemere, 14 M.R. 511. 
 
 2. School tajces — Assessment — Collec- 
 tion — Construction of statutes imposing 
 taxation. 
 
 Held, upon demurrer, 1. The rule 
 that, upon the argument of a demurrer, 
 only the pleadings can be looked at 
 does not apply where statutes which affect 
 the question raised have to be considered. 
 
 2. The power of taxation must be ex- 
 pressly conferred, it cannot be given 
 by implication. 
 
 3. There is no power given in the 
 School Acts to a board of school trustees 
 in a city or town, to assess, levy or collect 
 a tax or school rate, except that given 
 to levy a smaU rate upon the parents 
 or guardians of the children attending 
 school. School Trustees for the Protestant 
 School District of the City of Winnipeg v. 
 C.P.B., 2 M.R. 163. 
 
 See Constitutional Law, 13. 
 
 PUBLICATION FOR ONE MONTH. 
 
 See Local Option Bt-Law, II, 1; V, 3. 
 
 PUIS DARREIN CONTINUANCE. 
 
 See Pleading, VIII- 
 
 PURCHASE ON MARGIN. 
 
 See Principal and Agent, V, 8. 
 
 PURCHASER FROM MORTGAGEE. 
 
 See Parties to Action, 7. 
 
 PURCHASER WITH NOTICE. 
 
 See Chattel Mortgage, IV, 1; V, 1. 
 — ■ Registry Act, 1. 
 
967 
 
 PURCHASER WITHOUT NOTICE. 
 
 968 
 
 PURCHASER WITHOUT NOTICE. 
 
 See Breach of Trust. 
 
 — Conditional Saub, 7. 
 
 — Crown Patent, 5. 
 
 — Equitable. Mortgage. 
 
 — Fixtures, 2. 
 
 — Fkaudtjlen'T Conveyance, 20, 21. 
 
 — Mortgagor and Mortgagee, V, 3. 
 
 — Registration op Deed. 
 
 — Sale of Land for Taxes, V, 2. 
 
 — Vendor and Purchaser, VI, 12. 
 
 — Warehouse Receipt. 
 
 QUALIFICATION. 
 
 See Quo Warranto, 1, 3. 
 
 QUANTUM MERUIT. 
 
 See Contract, VIII, 4; X, 2; XI, 2; XV, 9. 
 
 — Pleading, VIII, 2. 
 
 — Principal and Agent, II, B, C, E. 
 
 — Statute op Frauds, 4, 8. 
 
 QUASHING BY-LAW. 
 
 Liquor License Act, R.S.M. 1902, 
 0. 101, s. 61 — The Municipal Ad, R.S.M. 
 1902, c. 116, s. 4:28— Local Option by- 
 law — Application to qumh jor defects in 
 
 A by-law of a municipality requiring 
 the assent of the ratepayers, which has 
 in fact been submitted to them and re- 
 ceived their assent, cannot, under seetion 
 428 of The Municipal Act, R.S.M. 1902, 
 c. 116, be quashed on appUcation to the 
 Court after one year from its passage, 
 although it had not been signed by the 
 reeve or sealed with the corporate seal 
 and the proceedings attending its sub- 
 mission were in other respects informal 
 and defective. 
 In re Vivian and the Rural Municipaliiy 
 of Whitewater, (1902) 14 M.R. 153,. not 
 followed. Re Houghton and Rural Mun. 
 of Argyle, 14 M.R. 526. 
 
 See Constitutional Law, 16. 
 
 — LodAL Option By-Law, I, 1; V, 1, 3; 
 
 VI, 3. 
 
 — Municipality, I, 4; V, 1, 2; VII, 1, 2, 
 
 6, 8; VIII, 5. 
 
 — Prohibition op Sale op Liquor. 
 
 QUASHING CONVICTION. 
 
 See Costs, XIII, 20. 
 
 — L]QU0R License Act, 1, 8. 
 
 QUIT CLAIM DEED. 
 
 See Registration of Deed. 
 
 QUEEN'S COUNSEL. 
 
 Precedence. 
 
 In the case of Queen's Counsel in 
 Manitoba, where their patents are of 
 even date, in the absence of any express 
 provision as to their respective priority 
 of rank contained in the patents, and of 
 any other guide in determining the ques- 
 tion, the order of precedence which they 
 had as members of the Bar in Manitoba 
 before the patents were issued and ir- 
 respective of them must prevail. In the 
 Matter of Her Majesty's Counsel, 8 M.R. 
 155. 
 
 QUESTIONS FOR JURY. 
 
 See False Imprisonment, 3. 
 
 — Libel, 5. 
 
 — Malicious Prosecution, 5. 
 
 — Negligence, I, 2. 
 
 QUO WARRANTO. 
 
 1. Municipal election — Quo'warranto 
 after statutory proceedings. 
 
 Held, 1. The Court will not readily 
 grant leave to file a quo warranto after 
 proceedings taken under the statute 
 have been dismissed. 
 
 2. Can a ratepayer who is not an 
 elector be the relator in quo warranto 
 proceedings ? Qucere. 
 
 3. The evidence as to want of quali- 
 fication shewed that the respondent was 
 assessed for a sufficient amount. There 
 was an affidavit that there was a jfi. fa. 
 lands in the sheriff's hands for $56,000 
 against the respondent ; that the attorney 
 who issued the writ informed the deponent 
 that nothing had been paid upon it. 
 There was not, however, any certificate 
 from the sheriff, or any evidence of 
 
969 
 
 RAILWAY COMMISSIONEES FOR CANADA, BOARD OF. 
 
 970 
 
 inquiry from him ; nor was there any 
 evidence as to ji. fa. goods in Ihe same 
 case, or the existence of goods sufficient 
 to pay it. Held, that there was no 
 sufficient evidence of want of quaUfi- 
 cation. 
 
 '4. An affidavit of a person who said 
 that he was present at a, meeting of 
 Council and saw the respondent take 
 the oath of office without the declaration 
 of qualification, and that he has reason 
 to believe that he, the respondent, has 
 never made the declaration of quali- 
 fication, is insufficient. The affidavit 
 should show that the deponent was 
 present during the whole meeting of 
 the Council. 
 
 5. On an application for qim warranto 
 the utmost strictness of proof is required. 
 Reg. V. Calloway, 3 M.R. 297. 
 
 2. Civil or criminal proceeding — 
 
 King's Bench Act, R.S.M., 1902, c. 40, 
 S. 92, Rule 1. 
 
 Quo warranto proceedings to test the 
 right o£ a person to hold a seat as school 
 trustee are purely civil proceedings and 
 . an apphcation for leave to file an inform- 
 ation by way ot quo warranto for such a 
 purpose is properly made by notice of 
 motion and not by rule nisi. 
 
 The Crown side of the Court of Bang's 
 Bench referred to in Rule 1 and section 
 92 of the King's Bench Act is only that 
 part of the business of the Court which 
 it gets by virtue of the Dominion legis- 
 lation in the Criminal Code. Tvitle v. 
 Quesnel, 19 M.R. 20. 
 
 3. Qualification of relator — Relator 
 put forward by real prosecutor. 
 
 Ail apphcation for leave to exhibit an 
 information by way of qv/) warranto to 
 unseat -a person as school ■ trustee should 
 be dismissed if the relator is a person 
 not really interested in the matter com- 
 plained of but merely put forward as' a 
 nominal relator by the real prosecutor 
 because of the latter's want of quali- 
 fication to be such relator. 
 
 Rex V. Daws, (1767) Burr. 2120 ; 
 King v. Parry, (1837) 6 A. & E. 810, 
 and Reg ex rel. Stewart v. Standish, (1884) 
 6 O.R. 408, foUowed. 
 
 A member of the board who voted for 
 payment of the account of a brother 
 member for wood supplied for the school 
 would not be qualified to be relator in 
 proceedings to unseat the latter by reason 
 of such payment. Rex el rel. Tuttle v. 
 Quesnel, 19 M.R. 23. 
 
 RAILWAY COMMISSIONERS FOR 
 CANADA, BOARD OF. 
 
 Making order of, a rule of Court — 
 
 Railway Act, R.S.C. 1906, c. 37, s. 46— 
 Vagueness and uncertainty in language, of 
 order. 
 
 An order of the Board of Railway 
 Commissioners for Canada requiring a 
 railway company to put a highway "in 
 satisfactory shape for pubUc travel " 
 should not be made a rule of this Court 
 under section 46 of the Railway Act, 
 R.S.C. 1906, c. 37, on the application 
 of the municipality interested, because 
 the wording of it is too vague and un- 
 certain to permit of its enforcement 
 afterwards if made such a rule. 
 
 A Court of Equity would not decree 
 specific performance of an agreement 
 couched in such vague terms and the cases 
 are analogous. 
 
 Taylor v. Partington, (1855) 7 De 
 G.M. & G. 328, referred to. Straihclair 
 V. C.N.R., 21 M.n. 555. 
 
 See Injunction, I, 3. 
 
 — Railwats, V, 5; VIII, 1; XI, 4 
 
 RAILWAYS. 
 
 I. Arbitration. 
 
 II. Baggage of Passengers. 
 
 III. Common Carriers. 
 
 IV. Crossings and Cattle Guards. 
 V. Expropriation. 
 
 VI. Fences. 
 VII. Fire Started bt Sparks from 
 
 Locomotive. 
 VIII. Negligence. 
 IX. Power to Mortgage or Pledge 
 
 Railway. 
 X. Receiver. 
 XI. Miscellaneous Cases. 
 
 I. Arbitration. 
 
 1. Appointment of arbitrators by 
 Judge — Persona designata — Power to re- 
 scind order making appointment — Railway 
 Act, R.S.C. 1906, c. 37, s. 196. 
 
 A Judge in exercising the power con- 
 ferred by section 196 of the Railway Act, 
 R.S.C. 1906, u. 37, to appoint arbitrators 
 to assess the compensation to be paid to 
 the owners by a railway company for 
 land compulsorily taken, acts as persona 
 designata, and, after making the appoint- 
 ment, he is functus officio and has no 
 
971 
 
 RAILWAYS. 
 
 972 
 
 jurisdiction to rescind the order of ap- 
 pointment, even if it is shown that such , 
 order had been made without jviris- 
 diction. 
 
 C.P.B. V. LitUe Seminary of St. Therese', 
 16 S.C.R. 606, followed. Re Chambers 
 and C.P.iJ., 20 M.R. 277. 
 
 2. Coats— Railway Ad, R.S.C. 1906, 
 c. 37, s. 199 — Taxation — Fees of arbitrator 
 who resigned pending the arbitration. 
 
 Application by' the Railway Company 
 under section 199 of the Railway Act, 
 R.S.C. 1906, c. 37, to have its costs of 
 an arbitration to determine the amount 
 of compensation to be paid for land taken 
 taxed by the Judge, the board of ar- 
 bitrators having awarded only the sum 
 previously offered by the company. ' 
 
 Mr. Johnson, one of the arbitrators 
 first appointed, resigned before the award 
 was made and a new arbitrator was 
 appointed in his stead. The owner took 
 up the award, paying the fees of all the 
 arbitrators but Mr. Johnson, who came in 
 on this application and asked that his 
 fees be paid. 
 
 Held, that he could have no relief 
 on this application, but must be left to 
 his remedy, if any, against the owner by 
 action. 
 
 In taxing the costs of the arbitration 
 under the statute, the Judge acts min- 
 isterially and cannot decide anything 
 as to the right to costs. 
 
 Ontario . <fe Quebec Ry. v. Philbrick, 
 (1886) 12 S.e.R. 288, followed. Black- 
 wood y. C.N.R., 20 M.R.'161. 
 
 II. Baggagj! of Pasbbngebs. 
 
 1. Implied contract to carry — Action 
 by owner of goods or his assise, neither 
 being, the passenger — What included in 
 term "personal baggage" — Negligence — 
 Loss of baggage. 
 
 1'. Only the passenger or his assignee 
 can sue a railway company on the impUed 
 contract with a passenger to carry safely 
 his personal baggage arising from his 
 having purchased a ticket for his con- 
 veyance. 
 
 Great Northern Ry. V. Shepherd, (1852) 
 8 Ex. 30 ; GarOile v. G.W.R., (1865) 24 
 U.C.R. 409, and Beecher v. Great Eastern 
 Ry., (1870) L.R. 5 Q.B. 241, followed. 
 
 2. If the action were founded in tort 
 and it was shown that the goods were 
 lost through ]the defendant's negligence, 
 the owner of the goods, though he was not 
 the passenger, could sue. 
 
 Meux V. Great Eastern Ry. Co., [1895] 
 2 Q.B. 387, followed. 
 
 3. In the absence of proof of negUgence, 
 the passenger can only recover for per- 
 sonal baggage lost, and only on clear 
 evidence that such were contained in 
 the missing pieces. 
 
 4. In the case of a married woman 
 traveUing with infant children to join 
 her husband, the husband's clothing, 
 household effects and the clothing of 
 grown up daughters cannot be classed 
 as personal baggage. 
 
 McCaffrey v. C.P.R., (1884) 1 M.R. 
 350, followed. CalUm v. C.N.R., 19 
 M.R. 141. 
 
 2. Liability as carriers or ware- 
 housemen — Baggage left at station — 
 Pleading — Demurrer. 
 
 Held, 1. It is the duty of the railway 
 company, in regard to the baggage of 
 a passenger which has reached its destin- 
 ation, to have the baggage ready for de- 
 Uvery upon the platform,at the usual place 
 of delivery, till the owner, in the exercise 
 of due dihgence, can call and receive it ; 
 and it is the passenger's duty to call for 
 and receive it within a reasonable time ; 
 if he does not so call for and receive it, 
 it is the company's duty to put it into 
 their baggage room and keep it for him, 
 being Uable only as warehousemen. 
 
 2. The question whether the con- 
 signee of goods carried as freight, or a 
 passenger taking luggage with him, has 
 in a particular case appUed for the goods 
 or luggage within a reasonable time 
 after their arrival, is a question of fact 
 to be determined in each case from cir- 
 cumstances. 
 
 3. Whether it is to be considered 
 ordinarily as a matter of law to be the 
 duty of the passenger by railway train 
 to call for his luggage before leaving 
 the station, and whether in case of his 
 failing to do so or to make any arrange- 
 ment about it, the company becomes 
 merely warehousmen of it, Quare. 
 
 4. On the hearing of a demmrrer the 
 Court will look at the whole record and 
 not merely at the particular pleading 
 demurred to ; and ordinarily, although 
 such pleading be bad in law, if that to 
 which it is pleaded also be bad, judgment 
 will be given against the party demurring. 
 But, when the same pleading which is 
 bad, and is demurred to, is pleaded at 
 once to two former pleadings, one of 
 which is good and the other bad in law, 
 judgment will be given in favor of the 
 
973 
 
 RAILWAYS. 
 
 974 
 
 party demurring, notwithstanding the 
 defect in his former pleading, for the 
 pleading demurred to being bad in part 
 must be taken as wholly bad. 
 
 5. To an action for losing luggage the 
 company pleaded as foUows : "For 
 a tenth plea to the said declaration the 
 defendants say that they did safely 
 carry the said luggage from the said city 
 of Emerson to the oitjr of Winnipeg, 
 to their station at the said city of Winni- 
 peg, but the plaintiff left the said railway 
 train and said . station without calling 
 for his luggage or^ taiking the same, and 
 that, after waiting a reasonable time 
 for the plaintiff to call and take away 
 his luggage, and the plaintiff not having 
 called within said time for or taken 
 the said luggage, the defendants stored 
 the same in the station baggage room 
 of the defendants, which was a reasonably 
 secure place to put and keep the same^ 
 and without any charge to the plaintiff 
 the defendants kept and stored the 
 luggage for the plaintiff ; and, whUe the 
 luggage was in the baggage room waiting 
 for the plaintiff to call, the said baggage 
 room with all its contents including the 
 luggage was burned without any default 
 or negUgence on the part of the defend- 
 ants ; and the plaintiff did not caU for 
 the said luggage until after its destruction 
 by fire as aforesaid, whereby and for no 
 other cause the said luggage became lost 
 to the plaintiff." 
 
 Held, a good plea. 
 
 6. To this plea the plaintiff replied 
 as foUows : "And for a third replication 
 to the eighth, ninth and tenth pleas of 
 the defendants the plaintiff says that, 
 on the twenty-third of February last 
 past, in company with his sister of whom 
 he had charge, he left Portland in the 
 State of Mame as a passenger by rail 
 from that city to the city of Winnipeg 
 with the luggage in the declaration 
 mentioned ; and the plaintiff travelled 
 continuously from the one city to the 
 other ; and the plaintiff, while at the city 
 of MimieapoUs on the line of route 
 between Portland and Winnipeg, made 
 enquiries from the baggage-master of 
 The St. Paul, Minneapolis & Manitoba 
 Railroad; being one of the railways 
 over which the plaintiff was carried on 
 his journey, and the plaintiff was in- 
 formed by the said baggage-master that 
 his said luggage was not being carried 
 on the same train with himself ; and 
 the plaintiff when he had completed his 
 journey above mentioned immediately 
 
 on his arrival at Winnipeg looked in at 
 the door of the baggage car of the train 
 on which he had travelled for the pyupose 
 of finding his said luggage, but did not 
 see the same although the interior of 
 the car was sufficiently clear to allow, 
 him to see it if it had been there ; and 
 the plaintiff then looked around the 
 station platform in the immediate vicinity 
 (rf the baggage car but could not see his 
 said luggage ; and then the plaintiff, 
 relying on the information received 
 from the said baggage-master ajid on 
 the result of his said search at Winnipeg 
 station, as above described, did not 
 apply to any officer of the defendants 
 for the said luggage, but within a reason- 
 able time thereafter to wit on the day 
 following he made application to the 
 proper officer of the defendants for his 
 said luggage, but the, same was wholly 
 destroyed." 
 
 Held, bad on demurrer. Brown v. 
 C.P.B., 3 M,R. 496. 
 
 3. Liability as carriers or ware- 
 housemeu — Loss of baggage. 
 
 Held, 1. A Railway Company is liable 
 for the loss of a passenger's ordinary 
 travelling baggage, but not for such 
 articles as window curtains, blankets, 
 cutlery, books, ornaments, &c., even 
 when these are packed with the baggage 
 for which they are liable. 
 
 2. When goods remain at the station 
 at which a passenger aUghts, but it does 
 not appear that the Railway Company 
 has charged, or is entitled to charge, 
 for storage, the Company is not liable 
 as warehousemen. McCaffrey v. C.P.R., 
 M-M.n. 350. 
 
 i 
 
 III. Common Caehiers. 
 
 1. Delivery of goods to carrier — 
 
 Admission by ag^nt. 
 
 Plaintiff sent by S. a box of goods to 
 defendants' station at W. to be carried 
 to Y. at P. S. saw several men working 
 at defendants' freight shed and told 
 one of them he had brought a box for 
 Y.; the man told him "to bring it in 
 and put it there," and S. put it where 
 he was told. He got no receipt. The 
 box was lost. Plaintiff then went to 
 the station at W. and saw the man 
 already referred to, who admitted that 
 he got the box but could not say what 
 he had done with it. 
 
 Held, that whether the goods were 
 to be carried at the risk of the consignor 
 
975 
 
 RAILWAYS. 
 
 976 
 
 or of the consignee was a question, for 
 the jury, and the Court would not dis- 
 turb their verdict. . 
 
 Held, that the admission of the man, 
 whom plaintiff saw, was not admissible 
 as evidence against the defendants, and 
 as it was the only evidence of delivery, 
 the plaintiff should be non-suited. Youna 
 V. C.P.R., 1 M.R. 205. 
 
 2. Loss of goods through negli- 
 gence — -Loss of wheat shipped by railway 
 —Railway Act, 1888, s. 246, s-s. Z— Weights 
 and Measures Act, R.S.C., c. 104, s. 21 
 —Manitoba Grain Act, 1900 (D), c. 39, 
 s. 9 — Indorsement -of bill of lading. 
 
 1. When it clearly appears that the 
 loss of goods shipped by railway must 
 have been caused by the negUgence or 
 omission of the railway company or its 
 servants, the company is precluded 
 by sub-section 3 of section 246 of the 
 Railway Act, 1888, from relying on a 
 condition of the bill of lading exempting 
 it from liabUity for any deficiency in 
 weight or measurement. 
 
 McMillan v. G.T.R., (1889) 16 S.CR. 
 543, foUowed. 
 
 2. The certificate of a weighmaster 
 under section 9 of The Manitoba Grain 
 Act, 1900, being only prima facie evi- 
 dence of the weight of grain in a car, 
 may be rebutted. 
 
 3. The indorsement of a bill of lading 
 to a bank for collection, though it passes 
 the property in the goods, does not 
 prevent the shipper from bringing an 
 action in respect of the loss of the goods, , 
 if he still has an interest in them. 
 
 Leggelt on Bills of Lading, 626 ; Brill 
 V. G.T.R., (1880) 20 U.C.C.P. 440, and 
 G.W. Ry. Co. V. Eagge, (1885) 15 Q.B.D. 
 625, followed. 
 
 4. Section 21 of The Weights and 
 Measures Act, R.S.G., C' 104,- does not 
 apply to a contract for carrying wheat 
 by the carload, although the number 
 of bushels in the car had been ascertained 
 by bag measurement. 
 
 Manitoba Electric & Gas Co. v. Gerrie, 
 (1887) 4 M.R. 210, and MacdonaU v. 
 Corrigal, (1893) 9 M.R. 284, distinguished. 
 Ferris v. C. N.R., 15 M.R. 134; 
 
 3. Negligence — Liability as warehovse- 
 rruxn — Notice of arnval of goods^^Reason- 
 able time. 
 
 The plaintiff's claim was for the loss 
 .of goods shipped to him at Emerson 
 over tlae defendants' railway, which were 
 destroyed by fire while still in the car. 
 
 The car> arrived at noon, and the station 
 agent immediately gave verbal notice 
 to a drayman, according to the usual 
 custom, that there was some freight to 
 be delivered. The plaintiff had been 
 accustomed to have his goods deUvered 
 by the drayman. He was out of town 
 that afternoon, and received no other 
 notice of the arrival of the goods. The 
 car was left standing near the elevator, 
 and was burned during the . following 
 night. It was supposed the fire -origin- 
 ated in the furnace of the elevator. 
 
 Held, that under the circumstances 
 the customary notice to the drayman 
 was sufficient notice to the plaintiff of 
 the arrival of the goods, and that a 
 reasonable time had elapsed for such 
 notice to reach the plaintiff, and for him 
 to remove the goods ; that the transitits 
 was at an end and the liability of the 
 defendants as common carriers had 
 ceased before the fire took place, and 
 that the evidence did not warrant the 
 finding that the defendants had been 
 guilty of negligence in leaving th* car 
 where they did, and that therefore they 
 were not lialble for' the loss of the goods 
 in question. Burdett v. C.P.R., 10 M.R. 
 5. 
 
 4. Action for non-delivery of goods 
 
 — Condition indorsed on shipping bill — 
 Liability of carrier. ' 
 
 In an action brought for non-dehvery 
 of sawn lumber dehvered to defendants 
 at P. to be carried by them to B., de- 
 fendants pleaded a condition indorsed 
 on the shipping biU, as foUows: "That 
 the company wiU not be responsible 
 for any d^ciency in weight or measure 
 of grain, in bags or in bulk, nor for loss 
 or deficiency in the weight, number or 
 measure ,pf lumber, fcoal or iron of any 
 kind carried by the car load." 
 
 The evidence shewed that the lumber 
 was loaded at P. and that a portion 
 of it was not dehvered at B. There was 
 no evidence as to how the loss occurred. 
 
 Held, 1. That by the Statute 42 Vic, 
 c. 9, s. 25, s-s. 4, the . defendants were 
 precluded from setting up the indorsed 
 condition, when a loss is charged as 
 happening through their own negligence. 
 
 2. That, in the absence of evidence, 
 the non-delivery might be assumed to 
 have arisen from misdelivery to some 
 other person, or from the actual use of 
 the property by the defendants for their 
 own purposes, in which cases the condition 
 
977 
 
 RAILWAYS. 
 
 978 
 
 would be no protection. Henry v. 
 C.P.R., I'M.R. 210. 
 
 6. Non-delivery of goods — Liability 
 o/ Railway Company as carriers. 
 
 Plaintiff delivered certain goods to 
 ihe Grand Trunk Railway for carriage 
 to Winnipeg. Defendants in the course 
 of transit received the goods and were 
 paid freight charges over their line. 
 Defendants delivered the goods at Winni- 
 peg to a cartage company to be deli- 
 vered to plaintiff, but some of them were 
 not so delivered. 
 
 Held, defendants liable. Roach v. 
 C.P.R., 1 M.R. 158. 
 
 6. Smuggled goods — "By reason oj the 
 railway." 
 
 The .statutory limitation of actions 
 for " damages or injury sustained by 
 reason of the railway" does not apply 
 in an action, either contract or tort, for 
 damages for non-delivery of goods de- 
 livered to the railway for carriage. 
 
 To a declaration against a carrier for 
 non-deHvery defendants pleaded that the 
 goods had, prior to the dehvery' to the 
 carrier, been forfeited to the Crown for 
 non-payment of customs dues, 
 
 Held, not a valid defence. 
 
 A carrier pleaded a lien for toUs, 
 to which plaintiff replied that he was 
 ready and willing and within a reasonable 
 time offered to pay the tolls, and re- 
 quested deUvery, but defendants ne- 
 glected and refused to deliver and thereby 
 discharged plaintiff' from tendering the 
 toUs. 
 
 Held, bad on demurrer. White v. 
 C.P.R., 6 M.R. 169. 
 
 IV. Crossings and Cattle Gtjards. 
 
 1. Approaches. 
 
 Where a railway company has crossed 
 a highway, the duty of the company 
 is not merely to provide a crossing upon 
 which the rails do not rise more than one 
 inch above, or sink one inch below the 
 level ; but it is also the company's duty 
 to construct and maintain such approaches 
 as may be .necessary to enable persons 
 using the highway to avail themselves 
 of the crossing. 
 
 Therefore, where a railway company 
 laid a plank 14 feet long outside the 
 rail, and did not grade the road up to 
 the plank at one end of it, but left the 
 ends of the ties exposed. 
 
 Held, that the company was liable 
 for an accident occurring to the plaintiff's 
 mule, by reason of the whiffletree catching 
 upon one of these ties. Moggy v. C.P.R., 
 3 M.R. 209. 
 
 2. Cattle guards — Accident — I/to- 
 bility of Company — Contribut(fry negli- 
 gence. 
 
 Action for the value of a cow, killed 
 by defendants' locomotive. A boy was 
 in charge of the cow but it ran away and 
 got on the track through the cattle guards 
 being full of snow. 
 
 Held, defendants liable. Phillips v. 
 C.P.R., 1 M.R. 110. 
 
 3. Omission to ring bell or sound 
 
 whistle — The Railway Act, 1888, t. 
 29, s. 2, s-s. ig), and s. 256 — Contribuiory 
 negligence — Highway crossing. 
 
 1. The word " highway " in section 
 256 of The Railway Act, 1888 (D), 51 
 Vic, c. 29j requiring a beU to be rung 
 or a whistle sounded by a railway loco- 
 motive engine on approaching a crossing 
 over a highway, means a public highway, 
 which is so as of right. 
 
 Semble, the question whether there is 
 a public highway at any point is one which 
 a County Court is precluded by s-s. (d) 
 of section 59 of the County Courts Act, 
 R.S.M., c. 33, from trying. 
 
 2. Where a trail or way over a railway 
 track is used by the public by invitation 
 or license of the Railway Company, a 
 person crossing the track upon the same 
 is bound to observe reasonable precau- 
 tions to avoid injury by trains ; and, 
 where the evidence shows that he has 
 not done so, he cannot recover from the 
 Company for such injuries without prov- , 
 ing that they were immediately caused 
 by the negligence of the Company's 
 servants only. . 
 
 Quaere, whether the failure of the person 
 in charge of a locomotive to ring 'a bell 
 or sound a whistle or observe other 
 precautions on approaching such a cross- 
 ing constitutes actionable negligence. 
 
 CoUon V. Wood, (1860) 8 C.B.N.S. 568, 
 and Weirv. C.P.iJ., (1889) 16 A.R. 100, 
 followed. Royle v. C. N.R., 14 M;R. 275. 
 
 V. EXPHOPEIATION. 
 
 ~ 1. Acceptance of amount offered by 
 Company — Railway Act, 1903, a. 159. 
 
 Under section 159 of The Railway Act, 
 1903, if the owner of land sought to be 
 expropriated by the railway company 
 
979 
 
 RAILWAYS. 
 
 980 
 
 does not accept the ofier of the Milway 
 company within ten days, the company 
 may at once proceed to have the aiiiount 
 of the compensation payable determined 
 by arbitration ; but the owner may 
 accept the ofier at any time after the 
 expiration of ten days if in the meantime 
 the company has taken no further pro- 
 ceedings, and such offer and acceptance 
 will constitute a binding contract be- 
 tween the parties upon which the owner 
 may proceed in an action to recover the 
 amount offered. Bennetto v. C.P.B., 18 
 M.R. 13. 
 
 2. Appeal from award of arbitrators 
 
 — Interest on amount awarded — Railway 
 Ad, RJS.C. 1906, c. 37, ss. 192-214. 
 
 1. Upon an appeal, under section 209 
 of the Railway Act, R.S.C. 1906, c. 37, 
 from an award of arbitrators deter- 
 mining the compensation to be paid to 
 an owner for the compulsory taking of 
 his lands by a railway company, the 
 Court win not assume the function of 
 the arbitrators and make an independent 
 award, but will rather treat the matter 
 as it would an appeal from the decision 
 or verdict of a Judge, and the award 
 wiU not be disturbed, unless the ar- 
 bitrators manifestly erred in some prin- 
 ciple in arriving at their conclusion. 
 
 2. Interest on the amoimt awarded 
 should not be added by the arbitrators, 
 especially in a case where the claimant 
 remains in possession of the property 
 until after the date of the award. 
 
 3. It is proper that the claimant should 
 be allowed the actual valuS of the pro- 
 perty to him, and not merely the market 
 value as on a sale. 
 
 4. The arbitrators are not boxmd to 
 allow ten per cent, extra on the amount 
 of the compensation for the compulsory 
 taking, although that is frequently done, 
 and the Court wiU hot interfere with 
 their refusal to allow such percentage. 
 Re Canadian . . Northern Railway, and 
 Robinsm, 17 M.R. 396. 
 
 3. Appointment of sole arbitrator 
 
 — "Opposite party," meaning of — Evi- 
 dence by affidavit. 
 
 The Railway Company having served 
 on both the owner of the land and the 
 mortgagee the notice and certificate 
 prescribed by sections 146 and 147 of 
 The Railway Act, 61 Vic. (D.), c. 29, 
 the owner refused the sum offered and 
 notified the Company of the name of 
 
 her arbitrator, but the nortgagee gave 
 no such notice. 
 
 Held, that, under section 150 of the 
 Act, the Company was entitled to a,pply 
 to have a sole arbitrator appointed, as 
 the mortgagee should be treated as an 
 " opposite ^arty " within the meaning 
 of that section. 
 
 After giving notice to the Company of 
 the name of her arbitrator, the owner 
 sold and conveyed the property to another 
 person. The land had been brought 
 under The Real Property Act and on 
 the certificate of title issued to the pur- 
 chaser there was endorsed a memorandum 
 of the deposit in the Land Titles OflSce 
 of the Minister's certificate p.nd the plan 
 and book of reference. 
 
 Held, that the purchaser must be 
 deemed, under section 145 of the Act, 
 to have had notice of the expropriation 
 proceedings and was boimd by them. 
 
 Evidence in support of an apphcation 
 under section 150 of the Act may be by 
 affidavit. Re C.P.R. and Batter, 13 M.R. 
 200. 
 
 4. Compensation for land? injur- 
 iously affected— Donjer to children — 
 -Statutes — Retroactive — Expropriation — 
 Appeal from award — Parties. 
 
 After an award and before the ex- 
 piration of the time for appeal, a statute 
 came into operation amending the pre- 
 vious provisions respecting appeals. 
 
 Held, that the new statute applied 
 to the case. 
 
 A statute provided that a notice of 
 apjjeal from an award should be given to 
 all interested parties. 
 
 Held, that the notice was suflBcient 
 if signed by the attorney of the party 
 appealing. 
 
 Such a notice need not be served upon 
 the arbitrators. 
 
 Service of such a notice upon the 
 cashier of a foreign corporation is suflB- 
 cient service. 
 
 The promoter of a railway had power to 
 expropriate land making compensation 
 " for the value of the land taien, and 
 for all damages to land injuriously affected 
 by the construction of the railway," 
 with a proviso for setting-off the in- 
 creased value of the lands not taken, by 
 reason of the passage of the railway 
 through or over the same, "against the 
 inconvenience, loss or damage that might 
 be suffered or sustained by reason of the 
 company taking possession of, or using, 
 the said lands or grounds as aforesaid." 
 
981 
 
 RAILWAYS. 
 
 982 
 
 A portion of certain lands having. been 
 taken by the railway, 
 
 Held, 1. That the compensation should 
 be the difference between the value of 
 the land as it existed before, and of the 
 remaining portion after the construction 
 of the railway. 
 
 2. That inconveniences arisingnot only 
 from the construction, but from the 
 operation of the railway, such as noise, 
 ringing of beUs, smoke and ashes, might 
 be included in the estimate. 
 
 3. Danger to children and others 
 should not be included. 
 
 Upon appeal to the Court in banc, 
 
 Held, that compensation was correctly 
 allowed for depreciation in the value 
 of the land not taken, occasioned by the 
 anticipation of the subsequent operation 
 and user of the railway on the land taken. 
 
 Per KiLLAM, J. — ^The appeal having 
 been limited to a part of the order, the 
 respondent could not attack the other 
 part of the order in arguing the appeal. 
 
 Per Bain, J. — That evidence of an 
 arbitrator as to whether, in estimating 
 the compensation, he had taken into 
 consideration matters which were not 
 within his jurisdiction, was admissible. 
 Ee Scott & Railway Commissioner; 6 
 M.R. 193. 
 
 6. Possession before payment of 
 compensation — Railway Act, R.S.C., 
 1906, c. 37, s. 217— Board of Railway Com- 
 missioners, jurisdiction of. 
 
 An order of the Board of Railway Com- 
 missioners for Canada giving leave to a 
 railway company to consti:uct an ex- 
 tension of a spur track and authorizing 
 the expropriation of the necessary land 
 is conclusive, unless reversed on appeal 
 to the Supreme Court, as to the right 
 of the company to expropriate the land 
 and construct the extension, and the fact 
 that the owner of .the land is bona fide 
 proceeding to appeal to the Supreme 
 Court from such order would not justify 
 a delay in granting a warrant, under 
 section 217 of the Railway Act, R.S.C., 
 1906, c. 37, to put the Company in pos- 
 session of the required land before pay- 
 ment of the compensation, as that section 
 makes it the duty of the judge to grant 
 the warrant on affidavit to his satis- 
 faction that immediate possession . is 
 necessary. . 
 
 Such a warrant should, however, not 
 be granted unless there is some urgent 
 and substantial need for immediate action 
 n the interest of the railway itself or 
 
 of the public, and it is not sufficient to 
 show that the interests of an individual, 
 whose property would be reached by the 
 spur line when buUt, urgently call for 
 such construction in order that he may 
 profitably carry on his business on such 
 property. 
 
 Kingston and Pembroke Ry. Co. and 
 Murphy, (1886) 11 P.R. 304, and C.P.R. 
 V. Little Seminary of Ste. Therese, (1889) 
 16 S.C.R. at p. 617, foUowed. Re C. N.R. 
 and Blackwood, 20 M.R. 113. 
 
 6. Possession before proceedings for 
 expropriation — Railway Act, 1903, ss. 
 152-171 — Right of action where land 
 entered upon by railway company before 
 expropriation proceedings begun. 
 
 The filing of a plan,, profile and book of 
 reference under The Railway Act, 1903, 
 showing the land required for the railway, 
 does not warrant the company in taking / 
 possession of it before proceedings for 
 expropriation, are commenced, unless by 
 agreement with the owner ; and, if such 
 possession is taken; the company is a 
 trespasser, and the owner is not limited 
 to the remedy by arbitration provided 
 by the Act, but may proceed by an 
 ordinaty action at law against the com- 
 pany. Wick^ V. C.P.R., 16 M.R. 343. 
 
 VI. Fences. 
 
 A. Negligence op Company. 
 
 B. Negligence op Owneb op Animals. 
 
 C. Obligation to Fence. 
 
 A. Negligence or Company. 
 
 Accident — Idahility of Company. 
 
 Action for the value of an ox, kiUed 
 by defendants' locomotive. The animal 
 was on the prairie close to the track. 
 The engineer reversed the engine and 
 whistled, but, before the train could 
 be stopped, the animal, having got on 
 the track, was run over and killed. 
 
 Held, 1. That the evidence did not 
 disclose such negligence as would entitle 
 the plaintiff to recover. 
 
 2. That, where the land adjoining the 
 railway is unoccupied, the company is 
 not bound to erect fences at that part of 
 their Une. McFie v. C.P.R., 2 M.R. 6. 
 
 B. Negligence of Owner op Animals. 
 
 1. Liability for animals killed on 
 track — Animah at large through negli- 
 
983 
 
 RAILWAYS. 
 
 984 
 
 gence of owner — Obligation to fence — Rail- 
 way Act, B.S.C. 1906, c. 38, ss. 254, 284, 
 427. 
 
 1. When it' is proved that animals 
 killed by a train of a railway company 
 had been allowed to go at large on a 
 pilblic road through the neghgence or 
 wilful act or omission of the owner or 
 his agent and, in consequence thereof, 
 got upon the right of way through a 
 defect in the railway fence, sub-section 4 
 of section 237 of the Railway Act, 1903 
 Cs. 294 of 0. 37 of R.S.C. 1906) protects 
 the Company from any clairh for damages, 
 although the Company had failed to 
 observe the requirement of section 199 
 (now 254J by neglecting to keep the fence 
 along the right of way in proper repair. 
 
 Murray v. C.P.B., (1907) 7 W.L.R. 50 ; 
 Becker v. C.P.B., (1906) 7 Can. Ry. Cas. 
 29, and Bourassa v. C.P.B., (1906) 7 
 Can. Ry. Cas. 41, followed. 
 
 2. 8aid section 237 deals completely 
 with the question of animals at large 
 getting upon the railway track and being 
 killed or injured and, therefore, section 
 294 (now 427), being only of general 
 application, cannot be interpreted so 
 as to maJie the Company Uable in 
 a case in which, by section 237, 
 it is expressly relieved from liability. 
 
 Howell, C. J., dissenting. Clayton v. 
 C.iV.i?., 17 M.R. 426. 
 
 2. Liability tor animals killed on 
 track — Railway Act, B.S.C. 1906, c. 
 37, s. 294, s-s 4 and, 5 — Construction of 
 statutes — Negligence or wilful act or omis- 
 sion of owner of animals getting at large. 
 
 The liability of a railway company, 
 under sub-sections 4 and 5 of section 
 294 of the Railway Act, R.S.C. 1906, c. 
 37, for damages in the case of animals 
 "at large killed or injured by a train is 
 not hmited io territory where the com- 
 pany is by section 254 obliged to erect 
 suitable fences, and the company can 
 only escape such liability by showing 
 that the animals got at large through the 
 negligence or wilful act or omission of 
 the owner or his agent or the custodian 
 of such animals or his agent. 
 
 The Railway Act of 1903 changed the 
 law in this respect. 
 
 Bank of England v. Vagliano, [1891] 
 A.C., per Lord HerscheU at p. 144, 
 followed as to the interpretation of a 
 statute intended to be a code of law on 
 Ihe subject referred to. 
 
 Arthur V. Central OritariJa By. Co., 
 (1906) 11 O.L.R. 537 ; Bacon v. G.T.B., 
 
 (1906) 12 O.L.R. 196 ; Lebu v. G.T.B., 
 (1906) lb. 592 ; Canvihera v. C.P.B. Co., 
 (1906) 16 M.R. 323, 39 S.C.R. 251, and 
 Beck&r v. C.P.B. Co., (1906) 7 Can Ry. 
 Cas. 29, 5 West.L.R. 569, followed. 
 
 The plaintiff had for two years been 
 accustomed to turn his horses out of 
 the stable in the winter to go without 
 halters to a watering trough about fifteen 
 yards away and driving them back to 
 the stable after drinking. On the oc- 
 casion in question the plaintiff and his 
 hired man were carrying out the. usual 
 routine when three of the horses after 
 drinking, without their noticing it, walked 
 off in the direction of the road instead of 
 returning to the stable. When the 
 foittth. had finished drinking it started 
 to walk after the others. The plaintiff 
 observed this and immediately tried to 
 intercept the horses, but the three escaped 
 and; although the plaintiff followed them 
 up at once and did his -best to recover 
 themj they eventually got- on to the 
 defendants' railway track and were killed 
 by a train on a bridge. 
 
 Held, that the plaintiff was not guilty 
 of negligence or of any wilful act or 
 omission in the matter so as to -disentitle 
 himself to recover. Parks v. C.N.B. 
 Co., 21 M.R. 103. 
 
 C. OBLIGaTION TO FENCE. 
 
 1. Cattle killed by train. 
 
 A railway company is under no obh- 
 gation to erect fences along their Mne 
 where the land adjoining is unoccupied. 
 ■ Cattle straying upon the Mne across 
 such unoccupied land are trespassing 
 and,' if injured there by accident without 
 neghgence, the railway company is not 
 responsible. 
 
 In such case the onus as to negligence 
 is upon the party asserting it. 
 
 Plaintiff's cattle, having been in his 
 yard at nine o'clock one evening, were 
 discovered about ten o'clock the nejrt 
 morning lying wounded alongside the 
 defendants' line of railway — one had a 
 hind foot "mashed up," and one had 
 "- a big gash in her leg." 
 
 Held, That it could be fairly inferred 
 that the injury was caused by an engine 
 or cars running upon the defendants' 
 railway, and under the control of the 
 defendants' servants. 
 
 In such a case the presence of certain 
 employees of the railway at the killing 
 and cutting up of the cattle or even their 
 participation in these acts would not 
 
985 
 
 RAILWAYS. 
 
 986 
 
 establish any liability of the company. 
 McMillan v. Manitoba & NM.B,., 4 
 M.R. 220. 
 
 2. Adjoining Owners. 
 
 The liabihty of a railway company to 
 fence arises by statute only. There 
 is no common law liabihty to fence, either 
 as respects the highway, or as respects 
 adjoining proprietors. 
 
 A statute provided that, " When a 
 Municipal Corporation for any township 
 has been organized, and the whole or any 
 portion of such township has been sur- 
 veyed and sub-divided into lots for 
 settlement, fences shall be erected and 
 maintained on each side of the railway 
 through such township," &c, ; and further 
 that, " Until such fences and cattle-guards 
 are duly made and completed, and if 
 after they are so made and completed 
 they are not duly maintained, the com- 
 pany shall be liable "for all damages done 
 by its tr-ains and engines to cattle, horses 
 and- other animals not wrongfully on 
 the railway and having got there in 
 consequence of the omission to make, 
 complete and maintain such fences and 
 cattle-guards as aforesaid." 
 
 (a) Held, that, having regard to the 
 current of previous legislation, the lia- 
 bihty of the railway to fence existed only 
 in favor of the owners or occupants of 
 lands adjoining the railway. Westhoume 
 CatOe Co. v. The Manitoba & N.W.R., 
 6 M.R. 553. 
 
 (o) Recent legislation has altered this. 
 —Ed. 
 
 3. Adjoining land, where ai^imals 
 might properly be — Permission of owner 
 of land contiguoxLS to railway — Liability 
 for animals killed on railway track. 
 
 The plaintiff's horses were being win- 
 tered on his own land adjacent to the 
 property of his father, through which 
 the defendants' railway ran. In March, 
 1893, the horses strayed along a private 
 road across the father's land, through a 
 broken gate on this road, and on to the 
 railway track, where they were killed by 
 a train of the defendants. 
 
 According to the evidence of the plain- 
 tiff and his father, the latter had several 
 times in previous years given the plaintiff 
 permission to pasture and water his 
 stock on the father's land, or to allow 
 them to run there, but there was no 
 special permission asked or given for 
 that winter, nor was there sufficient 
 
 evidence of a general permission for the 
 plaintiff to allow his stock to run there. 
 
 HeU, that it could not be said that 
 the horses got upon the railway track 
 from land where they might properly be, 
 and therefore the defendants were not, 
 under The Railway Act of Canada, 
 51 Vic, c. 29, s. 194 (as amended by 
 53 Vic, c 28, s. 2) and ss. 196 and 198, 
 hable for the loss. 
 
 Westboume Cattle Co. v. M. & N.W. 
 Ry. Co., 6 M.R. 553, followed. Ferris 
 V. C.P.B., 9 M.R. 501. 
 
 Not followed, Carruthers v. C.P.R.'' 
 16 M.R. 323. 
 
 4. Death of animal not actually 
 struck by train or engine — Railway 
 Act, s. 194, s-s. 3, as re-enacted by 53 Vic, 
 c. 28, {s. 2. 
 
 Under sub-section 8 of section 194 of 
 The Railway Act, as re-enacted by 53 
 Vic, c 28, s. 2, a railway company is 
 not Uable in damages for the death of 
 an animal which, having got on the track 
 through a defective fence, is frightened 
 by a train and then runs into a barbed 
 wire in another part of the fence and is 
 so cut by the barbs that it dies. 
 
 The damage to the animal cannot 
 be said to be " caused by any of the Com- 
 pany's trains or engines," unless the ani- 
 mal is actually struck by the train or 
 engine. 
 
 Dicta of the Judges in James v. Grand 
 Trunk Ry. Co., (1901) 1 O.L.R. 127, 31 
 S.C.R. 420, and decision in Winspear v. 
 The Accident Insurance Co., (1880) 6 
 Q.B.D. 42, foUowed. McKellar v. C.P.R., 
 14 M.R. 614. 
 
 5. Adjoining land — Obligation to fence 
 right of way — Railway Act, 1903, .s. 199, 
 s-s. 3. 
 
 1. Under section 199 of the Railway 
 Act, 1903, a railway company is required 
 to erect and maintain fences suitable 
 and sufficient to prevent cattle from 
 getting on the railroad from adjoining 
 land which is cultivated and settled on, 
 although not inclosed. 
 
 2. The words " not improved or settled, 
 and inclosed," in sub-section 3 of that 
 section, describing lands in respect of 
 which the company is not required to 
 fence, should either be construed to 
 mean " not improved and not inclosed, 
 or not settled and not inclosed," or should 
 be read with the comma put after the 
 word " improved," instead of after the 
 
987 
 
 RAILWAYS. 
 
 988 
 
 word " settled," thus, " not improved, 
 or settled and inclosed," so that, either 
 way, the obligaltion to fence exists as 
 to land that is either (1) improved, or 
 (2) settled and inclosed. Dreger v. 
 C.N.B., 15 M.R. 386. 
 
 'Not followed, Schellenberg v. C.P.B., 
 16 M.R. 154. 
 
 6. Adjoining land — Obligation to fence 
 —Railway Act, 1903 (D), s, 199, s-s. 3. 
 
 Under sub-section 3 of section 199 of 
 the Railway Act, 1903 (D), a railway 
 company is not required to fence off 
 lands on either side of the right of way 
 unless they are inclosed, as the plain 
 meaning of the words " not improved or 
 settled, and inclosed " is the same as 
 if they were " not improved and inclosed, 
 or not settled and inclosed." 
 
 Dreger v. C.N.B. Co., (1905) 15 M.R. 
 386, not followed. SckeUenberg v. C.P.R., 
 16 M.R. 154. 
 
 7. For the protection of others 
 than the lawful occupants of adjoin- 
 ing lands — Railway Act, 1903 (D), ss. 
 199 and 237. 
 
 Under sections 199 and 237 of The 
 Railway Act, 1903, the obligation of a 
 railway company to fence off its right 
 of way is a duty which it owes to the 
 public at large and is not imposed upon 
 it solely for the benefit of the occupants 
 of the lands adjoining the right of way ; 
 and, therefore, the owner of animals 
 which, without neghgence on his part, 
 escape from his enclosed pasture into a 
 highway, thence into a neighbor's field 
 adjoining the right of way of a railway 
 company, and thence through an opening 
 in the fence along the right of way on 
 to the railway track, and which are then 
 killed by a train of the company, is en- 
 titled to recover against the company for 
 the loss, when the company has neglected 
 to place a gate at such opening. 
 
 Fensom v. C.P.R., (1904) 8 O.L.R. 688, 
 3.ndBacon v.G.T.R., (1906) 7 O.W.R. 753, 
 followed. ' 
 
 Ferris v. C.P.R., (1894) 9 M.R. 501, 
 not followed. Carruthers v. C.P.R., 16 
 M.R. 323. 
 
 AfBrmed, 39 S.C.R., 251. 
 
 8. Injury to crops caused by cattle 
 straying from railway line not fenced 
 
 —Railway Act, R.S.C. 1906, c. 37, ss. 
 254, 427. 
 
 The duty of a railway company to 
 provide, under section 254 of the Railway 
 Act, R.S.C. 1906, c. 37, fences and cattle 
 guards suitable and sufficient to prevent 
 cattle and other animals from getting 
 on the railway, is prescribed only to 
 protect the adjoining land owners from 
 loss caused by their animals being killed 
 or injured on the tracjs: ; and, notwith- 
 standing the general language of section 
 427 of the Act which gives a right of 
 action to any one who suffers damages 
 caused by the breach gi any duty pre- 
 scribed by the Act, an adjoining owner 
 whose crops are injured by cattle straying 
 on to his land from the railway track, in 
 consequence of the absence of fences and 
 cattle guards, has no right of action 
 against the railway company in respect 
 of such injury. 
 
 James v. G.T.R., (1901) 31 S.C.R. 420, 
 Gorns V. Scott, (1874) L.R. 9 Ex. 126, 
 and McKellar v. C.P.B., (1904) 14 M.R. 
 614, followed. Winterburn v. Edmonton 
 Ry. Co., (1908) 8 W.L.R. 815, not foUowed. 
 
 Richards, J. A., dissented. Hunt v. 
 G.T.P., 18 M.R. 603. 
 
 9. Animal getting on track through 
 open gate at farm crossing — Non-suit 
 — New action. 
 
 If a gate in the fence at a farm crossing 
 of a railway is left open by the person 
 for whose use the crossing is provided or 
 any of his servants or by a stranger 
 or by any person other than an employee 
 of the company, the company is relieved 
 by section 295 of the Railway Act, R.S.C. 
 1906, c. 37, from the hability imposed 
 by sub-section 4 of section 294 to com- 
 pensate the owner for the loss of an animal 
 at largje, without his negUgence or wilful 
 act or omission, getting upon the railway 
 track through such gate and killed by 
 a train. 
 
 Flewelling v. Grand Trunk Ry. Co., 
 (1906) 6 Can. Ry. Cas. 47, followed. 
 
 Per Pekdtje, J. A. — Some negligence 
 or breach of statutory duty on the part 
 of the railway company in respect of 
 such gate would have to be shown to 
 render the company Uable in such a case. 
 
 Per H6well, C. J. A. — If railway 
 fences or gates are torn down or get open 
 by the action of the elements or by some 
 accident or default not caused by the act 
 of man, and an animal thereby gets upon 
 the track and is killed, none of the ex- 
 ceptions in section 295 would apply 
 
RAILWAYS. 
 
 990 
 
 and the company would be liable under 
 sub-section 4 of section 294. 
 
 Non-suit ordered, reserving right to 
 plaintiff to bring another action. Aikin 
 V. C.P.R., 18 M.R. 617 
 
 VII. FiEB StarteO by Spabks froIm; 
 Locomotive. 
 
 1. Contributory negligence — Action 
 for injury to land out of the jurisdiction — 
 Railway Act, R.S.C. 1906, t. 37, s. 298 — 
 Evidence. 
 
 The plaintiffs' premises, adjoining the 
 defendants' railway, were discovered to 
 be on fire about five mfiiutes after the 
 passage of one of the defendants' trains 
 hauled by two engines up a heavy grade. 
 It was proved that the wind at the time 
 would have carried any sparks from the 
 engines directly towards the premises 
 and that it is usual for engines, under 
 such circumstances, although well and 
 properly equipped, to throw off sparks 
 and cinders. The evidence also satisfied 
 the trial Judge th^t it was in a high degree 
 improbable that the fire could have been 
 caused in any other way, although no 
 Aegligence in the operation of the train 
 was shewn and no one saw any sparks 
 alight. 
 
 Held (1) The evidence warranted the 
 Judge's finding that the fire had been 
 caused by sparks from the locomotives. 
 
 Tait V. C.P.R., (1906) 16 k.R. 391, 
 followed. 
 
 (2) The plaintiff was entitled to a 
 verdict for the amount of the damage 
 to the contents of the building caused 
 by the fire, under section 298 of the 
 Railway Act, R.S.C. 1906, c. 37, which 
 makes the Railway Company liable 
 for losses caused by fire started- by a 
 locomotive "whether guilty of negli- 
 gence or not." 
 
 (3) No contributory negligence on the 
 part of the owner, unless it is wanton or 
 such as amounts to fraud in increasing the 
 risk of fire, is available as a defence. 
 
 Vaughan v. Taff VaU Ry. Co., (1858) 
 3 H. & N. 743 ; Campbell v. McGregor, 
 (1889) 29 N.B. 644 ; Jaffrey v. T. G. & B. 
 Ry. Co., (1874) 23 U.C.C.P. 560 ; McLaren 
 V. Canada Central, (1882) 32 U.C.C.P. 
 341 ; Bowen v. Boston & A.R. Co., (1901) 
 61 N.E.R. 142 ; Matthews v. Missouri 
 Pacific, (1897) 44 S.W.R. 802 ; and 
 Mathews v. St. Louis & S.F. Ry. Co., 
 (1893) 24 S.W.R. 602, followed. 
 
 (4) The plaintiffs could not recover 
 for the damage to the building caused by 
 
 the same fire for want of jurisdiction in 
 the Court, as it was part of the realty 
 which was in another Province, and the 
 title to it was in issue in this action. 
 
 Brereton v. C.P.R., (1898) 29 O.R. 57, 
 and British S.A. Co. v. Companhia de 
 MocamUgue, [1893] A.C. 602, followed. 
 Winnipeg Oil Co. v. C.N.R., 21 M.R. 
 274. 
 
 2. Evidence of cause of fire — Joinder 
 of plaintiffs having separate causes of action 
 arising out of same event — King's Bench 
 Act, Rule 218— Costs. 
 
 If it appears from the evidence that 
 there was no other possible cause for 
 the starting of a prairie fire near a railway 
 track than sparks from a passing loco- 
 motive, the proper conclusion to be 
 drawn is that a railway company is 
 liable, notwithstanding that the sparks 
 must have carried the fire an unusual 
 distance and that no evidence was given 
 as to the condition of the smokestack 
 and netting at the time. 
 
 A number of plaintiffs joined in the 
 Tait case presentmg separate claims for 
 losses by the same fire which plainly 
 appeared by the statement of claim, to 
 which the defendants filed a statement 
 of defence without having moved to 
 strike out any of the claims. 
 
 Held, without deciding whether Rule 
 218 of the King's Bench Act justified the 
 joinder of plaintiffs in this case, that it 
 was too late to take the objection of dms- 
 joinder at the trial. 
 
 A deduction was ordered to be made 
 from plaintiffs' counsel fees for the trial, 
 because considerable time was taken up 
 in proving title to the property destroyed 
 which the defendants had not been asked 
 to admit, and which would be presumed 
 from mere possession as against tort 
 feasors. Tait v. C.P.R. ; Bain v. C.P.R. ; 
 Kellett V. C.P.R., 16 M.R. 391. 
 
 3. Right of company to benefit 
 of insurance against same loss — 
 
 Action by insured against insurer after 
 recovery of judgment against railway 
 company. 
 
 This was an action to recover from an 
 insurance company the amount of a 
 pohcy against loss by a fire caused by 
 sparks from a railway locomotive. The 
 plaintiff had recovered judgment against 
 the railway company for the amount of 
 his loss under section 298 of the Railway 
 Act, which judgment had been paid less 
 the amount of the policy sued on. The 
 
991 
 
 RAILWAYS. 
 
 992 
 
 last paragraph of that section, as amended 
 by 9 Edward VII, c. 32, s. 9, is as foUows : 
 
 " Provided further that the Company 
 shall, to the extent of the compensation 
 recoverable, be entitled to the benefit 
 of any insurance effected upon the pro- 
 perty by the owner thereof. Such in- 
 surance shall, if paid before the amount 
 of compensation has been determined, be 
 deducted therefrom ; if not so paid, the 
 policy or policies shall be assigned to 
 the Company, and the Company may 
 maintain an action thereon." 
 
 Held, that the statute did not of its 
 own force vest the policy in the railway 
 company and that, unless it had demanded 
 an assignment, the plaintiff was not 
 bound to give it and might maintain 
 an action against the insurance company 
 upon the policy. 
 
 Corporatioii of Oldham v. Bank of 
 England, [190i] 2 Ch. 716, distinguished. 
 Banting v. Western Ass Co. ; Banting v. 
 Law Union & Crown Mortgage Co. 21 
 M.R. 142.. 
 
 VIII. Negligence. 
 
 1. Condition requiring notice of 
 claim for damage to goods — Railway 
 Act, 1903, s. 214, s-s, 3, s. 275. 
 
 A condition in a shipping bill providing 
 that there should be no claim ior damage 
 to goods shipped over a railway unless 
 notice in writing and the particulars of 
 the claim are given within thirty-six 
 hours after delivery, if it has b^en ap- 
 proved by order or regulation of the 
 Board of Railway Commissioners of 
 Canada under section 275 of the Railway 
 Act, 1903, is binding upon the shipper 
 even if negligence on the part ^of the 
 railway company is proved, notwith- 
 standing the language of sub-section 3 
 of section 214 of the Act enacting that, 
 " subject to the Act," the company 
 shall not be relieved from an action 
 by any notice, condition or declaration 
 if the damage arises from any negligence 
 or omission of the company or of its 
 servants, as both sections of the Act 
 . must be read together. 
 
 O.T.R. V. McMillan, (1889) 16 S.C.R. 
 543, and Ma^on v. G.T.B., (1875) 37 
 U.C.R. 163, followed. Hayward v. 
 C.N.B., 16 M.R. 158. 
 
 2. Engine moving backwards in 
 railway yard without man in front 
 to warn pedestrians — Contributqry ne- 
 
 gligence — Use of bell and whistle — Tres- 
 passer, right of action for injury to. 
 
 Under section 276 of the Railway Act, 
 R.S.C. 1906, c. 37, as amended by 9 
 & 10 Edw. VII, c. 50, s. 7, it is only 
 when a train is passing or about to pass 
 over or along a highway that the railway 
 company- is required, in case the train 
 is not headed by an engine moving for- 
 ward in the ordinary manner, to station 
 a man on that part of the train, or of 
 the tender if that is in front, which is 
 then foremost, to warn persons standing 
 on or crossing or about to cross the track, 
 and section 274 of the Act, requiring the 
 use of the bell and whistle, should be 
 interpreted as limited in the same way. 
 
 The plaintiff's husband, an employee 
 of the defendant company, while pro- 
 ceeding through the railway yards on 
 business of his own, stepped off the 
 track on which he was walking, to avoid 
 an approaching express train, and stepped 
 on to another track, when he was struck 
 and killed, at a point which was not near 
 any highway crossing, by a yard engine 
 moving reversely without any person 
 stationed on the part of the tender which 
 was foremost. There was a path be- 
 tween the two tracks on which the de- 
 ceased might have walked safely. 
 
 Held, without a finding on the evi- 
 dence as to whether or not the bell of 
 the yard engine had been rung, that the 
 defendants were not Uable, as they had 
 not been guilty of any negligence and 
 the deceased was guilty of contributory 
 neghgence in going upon the other track. 
 
 Semble, the deceased had no right to 
 be where he was at the time of the acci- 
 dent and was therefore a trespasser : 
 Deane v. Clayton, (1817) 7 Taunt. 489, 
 and Jordin v. Crump, (1847) 8 M. & W. 
 782, and no action was maintainable 
 without evidence of intention to injure. 
 Shutak v. C.N.R., 20 M.R. 242. 
 
 3. Failure to blow whistle and ring 
 bell on approaching crossing — Bail- 
 way Act, 1903, c. 58, s. 224^-Onits of 
 proof as to existence of by-law of munici- 
 pality — New trial — Evidence by affidavit. 
 
 Action for damages for the kiUing of 
 plaintiff's horses at a highway crossing 
 by an engine of the defendants. 
 
 The learned trial Judge did not think 
 it necessary to decide, upon the con- 
 flicting evidence, whether the whistle 
 had been blown as required by section 
 224 of the Railway Act, 1903, but he 
 
993 
 
 RAILWAYS. 
 
 994 
 
 found that the bell'had not been rung and 
 the defendants had, therefore, been 
 guilty of negligence. He was, however, 
 inclined to believe that the plaintiff's 
 driver had been guilty of contributory 
 negligence in not looking out for the 
 engine. The action was dismissed on 
 the ground that the plaintiff had not 
 proved that there was no by-law of the 
 city prohibiting the blowiiig of whistles 
 and ringing of bells becauee, under that 
 section, if such a by-law was in force, 
 the whistle should not be blown nor the 
 bell rung. 
 
 Held, on appeal, that, upon the plain- 
 tiff filing an affidavit proving the non- 
 existence of such a by-law, there should 
 be a new trial, as the evidence strongly 
 indicated negUgentae and there was no 
 positive finding of contributory negli- 
 gence. , 
 
 Qucere, whether the onus was on the 
 plaintiff to prove the non-existence of 
 such a by-law. 
 
 Semble, the trial Judge might properly 
 have allowed such proof to have been 
 made by affidavit. Pedlar v. C. N.R., 18 
 M.R. 525. 
 
 4. Failure to blow whistle and ring 
 bell — Ldability for accident at level crossing 
 —Railway Act, R.S.C. 1906, c. 37, s. 
 274 — Contributory negligence. 
 
 Two of the plaintiff's teams driven by 
 his servants - were approaching the level 
 crossing of the highway with defendants' 
 railway. The drivers were on the look- 
 out for trains but saw and heard nothing 
 and proceeded to drive across the track 
 when a train struck and killed one of 
 the teams and damaged the wagon and 
 harness. 
 
 The engineer and fireman both swore 
 that the whistle had been sounded as 
 required by section 274 of the Railway 
 Act, R.S.C. 1906, c. 37 ; but they did not 
 claim that the beE had been rung as that 
 section also required. The two drivers 
 swore that they did not hear the whistle. 
 The defendants also contended that the 
 drivers should have seen the headlight 
 of the engine and therefore were guilty of 
 contributory negUgence, but there was 
 some evidence that the headlight might 
 have been obscured at the moment by 
 escaping steam. 
 
 Held, that the plaintiff was entitled 
 to a verdict for the amount of his loss. 
 Pedlq,r v. C.N.R., 20 M.R. 265. 
 
 5. Limitation of time for action — 
 
 Railway Ad, R.S.C. 1906, c. 37, s. 306— 
 Demurrer^Damages sustained by reason 
 of the construction or operation of the rail- 
 way. 
 
 The statement of claim alleged that 
 the plaintiff was employed by the de- 
 fendant company as a laborer and as 
 such took pait in blasting and in thawing 
 frozen dynamite for that purpose under 
 the order and directions of the defendant's 
 roadmaster, that he was injufed by an 
 explosion of such dynamite, and that the 
 defendant was a railway company owning 
 and operating lines of railway within 
 the Province and was guilty of negli- 
 gence in certain particulars specified. 
 
 Held, on demurrer, that. these allegar 
 tions did not of themselves show that 
 the action was one to recover damages 
 for injury sustained by reason of the 
 construction or operation of the railway 
 within the meaning of section 306 of the 
 Railway Act, R.S.C. 1906, c. 37, and 
 therefore barred by the lapse of one year 
 from the date of the injury. Anderson v. 
 C.N.R., 20 M.R. 19. 
 
 6. No platform — Station grounds no 
 lighted. 
 
 The plaintiff was a passenger on de- 
 fendants' train from Winnipeg to 
 Deloraine. The train arrived at Delor- 
 aine at 10.30 p.m. The night was dark 
 and the station grounds were not Mghted. 
 There was no platform on which to alight, 
 but the ground was smooth and level. 
 A brakeman came with a lantern, carried 
 out the plaintiff's vaUse and assisted 
 her to afight. The lowest step of the 
 carriage was 26 inches from the ground. 
 Before assisting her to alight, the brake- 
 man placed the lantern on the ground. It 
 cast a hght 20 or 30 feet around. In 
 alighting, the plaintiff injured her knee 
 and was -compelled in consequence to 
 abandon her employment as cook in a 
 hotel at Deloraine. It appeared at the 
 trial that the plaintiff's knee had been 
 weak for sometime previously and that 
 she had been affected with synovitis in 
 a sub-acute form. She did- not tell 
 the brakeman of this weakness of the knee. 
 In an action brought for* this injury. 
 Held, that the defendants were not 
 guilty of negligence which should render 
 them liable for the injury and that, if 
 there was any negligence at all, it was 
 attributable to the plaintiff in not telling 
 
995 
 
 RAILWAYS. 
 
 996 
 
 the brakeman of her feeble and delicate 
 knee. . McGinney v. C.P.R., 7 M.R. 151. 
 
 Distinguished, Gvay v. C.N.R., 15 
 M.R. 275. 
 
 7. Passenger alighting from train 
 where no platform — Obligation to in- 
 form conductor of physical condition. 
 
 If there is a plalform at a railway 
 station, the railway company is bound 
 to bring the passenger car of a train 
 stopping ' there up to the platform to 
 permit passengers to step down on it in 
 alighting, or to provide some other safe 
 means for passengers to alight. 
 
 Bobson V. N.E. By. Co., (1876) 2 Q.B.D. 
 85, followed. 
 The plaintiff was a passenger on one of 
 defendants' trains. Un stopping at the 
 station where she wished to get off, the 
 train was left so that the car, in which 
 the plaintiff was, stood entirely behind 
 the station platform. The conductor 
 having offered plaintiff his hand to assist 
 her in alighting, she took it and jumped 
 to the ground, three feet below. The 
 ground ' at that point sloped slightly 
 downwards from the track and was 
 slippery with snow or ice. The plaintiff 
 received serious injury in consequence 
 of 'the jump. She was two months 
 advanced in pregnancy, was very unweU 
 foi the next six days and then had a 
 miscarriage, from which she suffered 
 great weakness for a considerable time. 
 Plaintiff did not know at the time she 
 jumped that there was a platform at the 
 station. i 
 
 Held, (1) The defendants were liable 
 in damages for the injury suffered by 
 plaintiff, as the conductor had been 
 guilty of negligence. 
 
 Quebec Central By. v. Lortit, (1893) 
 22 S.C.R. 336, and Curry v. C.P.B., 
 (1889) 17 Oil. 65, distinguished. 
 
 (2) The plaintiff was riot bound to 
 disclose her pregnancy to the conductor, 
 so that he might know that special care 
 was necessary in aiding her to alight. 
 
 McGinney v; C.P.B., (1890) 7 M.R. 
 151, distinguished. Guay v. C.N.B., 
 15 M.R. 275. 
 
 IX. Power to Mortgage or Pledge 
 • Railway. 
 
 1. Lien on, railway, equipment and 
 land grant — Parties to action. 
 
 The plaintiff's bill alleged that the 
 defendant company was a duly incor- 
 porated company, with its head office at 
 
 Ottawa, Ontario ; that the plaintiff 
 entered into an agreement with the 
 defendant company to build and equip 
 fifty miles of the railway in Manitoba 
 for £200,000, which the company agreed 
 to pay him ; that he built and equipped 
 the fifty miles of the railway according 
 to the terms of the agreement ; that under 
 the terms of the agreement he was en- 
 titled to a hen on and to hold possession 
 of the fifty miles of the railway and the 
 franchise, rolling stock, land grant, &;c., 
 as security for the amount due him, 
 and that in September, 1891, there was 
 due him over $600,000. It also alleged 
 that he obtained a judgment by consent 
 in Ontario, by which it was declared 
 that he had a lien on the railway, land 
 grant, &c. for $622,226, and it was ordered 
 that .the . defendant company should, 
 withiji six months, pay the said, sum 
 with interest ; that the judgment also 
 declared, at the request of plaintiff, 
 that certain specified amounts of the 
 said sum should, be paid to certain named 
 third parties, and the fund was charged 
 with these payments as a first charge ; 
 that trie defendant made default in pay- 
 ment, and the plaintiff obtained a second 
 judgment in Ontario to enforce the first 
 judgment ; that by this judgment it 
 was ordered the company should pay the 
 $622,226, and should forthwith deUver 
 up possession of the railway, land grant, 
 &c. to the plaintiff, and the company 
 was perpetually restrained -from selling 
 or negotiating the bonds of the company, 
 making and issuing bonds, and from 
 deahng with the land grant. The bill 
 prayed amongst other things that the 
 company be ordered to pay the $622,226 
 and interest, and forthwith to deliver 
 possession of the said railway, .rolling 
 stock, &c., and that it be restrained from 
 interfering with Ihe plaintiff in his pos- 
 session thereof; and also that the company 
 be restrained from alienating or encum- 
 bering the railway, land grant, &c., 
 and from issuing bonds, &c. 
 
 The defendants demurred to so much 
 of the bill as sought payment of trie money 
 to persons other than the plaintiff, and 
 to so much of the bill as sought to obtain 
 an order for delivery of the possession 
 of the railway, &c., on the ground these 
 third persons were necessary parties to 
 trie suit. It also demurred for want of 
 equity to so much of the bill as sought 
 to restrain the defendants from alienating 
 or otherwise disposing of the railway, 
 land grant, rolling stock, &c. 
 
997 
 
 RAILWAYS. 
 
 998 
 
 Held, that, at this stage of the pro- 
 ceedings, the third parties did not appear 
 to be necessary parties, and that, if it 
 should prove to be necessary at the 
 hearing, a decree could be made saving 
 their rights. 
 
 Held, also, that the clause in the con- 
 tract giving the plaintiff a lien and &st 
 charge on the fifty miles of railway, 
 land grant, rolling stock, &c., until he 
 was paid, was, intra vires. A railway 
 company has a general power to give 
 securities for purposes within the scope 
 of the power conferred upon the company 
 to construct and operate the railway, 
 unless this power is expressly negatived 
 in the Act of Incorporationj and express 
 power to borrow and give specified 
 securities will not exclude the general 
 power. 
 
 Bichford v. Orand Junction Railway 
 Company, 1 S.C.R. 696, followed. 
 
 Charlebois v. Great N.W. Central Bail- 
 way Company, 9 M.R. 1. 
 
 2. Ratiflcation of contract— Bonds — 
 
 Raising money — Validity of bonds wrongly ' 
 charging land grant. 
 
 The president of a Railway Company, 
 purporting to act on behalf of the Com- 
 pany, entered into a contract with certain 
 contractors for the construction of forty 
 miles of road. By the contract, bonds 
 to double the amount of the moneys to 
 be secured were to be deposited in a 
 bank to secure to the contractors payment 
 of a portion of the price of the construc- 
 tion of the railroad. 
 
 The president afterwards agreed that, 
 in default of payment withia a limited 
 time, the contractors should take the 
 bonds in payment at \fifty cents on the 
 dollar. 
 
 Two J ears after the bonds were de- 
 livered to the contractors, the Company 
 filed a bill repudiating the contract and 
 asking that the bonds be declared "null 
 and void. 
 
 It appeared that the defendants had 
 obtained a judgment at law against 
 plaintiffs for a large amount on the con- 
 tract, in which action Ihe Company had 
 set up as a defence that the contractors 
 had accepted the bonds in payment, 
 that the plaintiffs had begun an action 
 then pending on the contract, against 
 defendants, claiming damages for non- 
 completion of work, that an Act of 
 Parliament had been passed in the in- 
 
 terest of the Company, which recited 
 the construction and completion of the 
 work, and that dining two years no 
 steps had been taken to repudiate the 
 contract or to question the president's 
 authority, and that the Company bad 
 taken possession of and the benefit of 
 the work. 
 
 'Held, 1. That the Company must 
 be taken to have ratified the contract. 
 
 2. That the Company could not take 
 the benefit of a part of the contract and 
 repudiate it as to another part. 
 
 The Act of Incorporation g?,ve the 
 directors power to " issue and sell or 
 pledge all or any of the said bonds- for 
 the purpose of raising money for the 
 prosecution of the said undertaking." 
 
 Held, that the expression, " raising 
 money," should be given a liberal con- 
 struction, and that using the bonds in 
 the way above mentioned was really 
 a raising money for the prosecution of 
 the undertaking. 
 
 A by-law of the Company authorized 
 the president of the Company to "sell 
 or pledge the same at such price or prices 
 and upon such terms and considerations 
 as he shall see fit." 
 
 Held, that, in the absence of evidence 
 that more favorable terms could have 
 been made, the president, in thus agreeing 
 to give the contractors bonds at fifty 
 cents on the dollar instead of cash, was 
 only disposing of them at such price 
 and on such terms as he could. 
 
 The Company by its Act of Incorpor- 
 ation had power to issue bonds which 
 should " constitute a first mortgage and 
 preferential lien, charge, claim' and pri- 
 vilege upon the said railway constructed, 
 and upon its Government land grant 
 to be earned, and the undertaking." 
 By an amending Act the words, "and 
 upon its government land grant to be 
 earned," were struck out. Subsequently 
 the Company issued bonds which pur- 
 ported to charge the land grant of the 
 Company. 
 
 Semble, that the Company had no 
 power to charge the land grant to be 
 earned, but, 
 
 - Held, that, assuming the bonds not to 
 be a valid charge upon the land grant, 
 they were not on that account void, but 
 were valid as to the rest of the property 
 charged and as evidence of debt. The 
 Winnipeg & Hudson's Bay Railway Co. 
 V. Mann, 7 M.R. 81. 
 
999 
 
 RAILWAYS. 
 
 1000 
 
 X. Rbceivbb. 
 
 1. Borrowing money on pledge of 
 future revenues — Prior incumbrances. 
 
 The plaintiffs, as judgment creditors 
 of the defendant Company, having ob- 
 tained a decree for the appointment of 
 a receiver of the railway, and a receiver 
 having been appointed who was in pos- 
 session of the property, joined with tLe 
 defendants in an application for an order 
 authorizing the receiver to borrow on 
 the security of the railway and its earn- 
 ings, in priority to all other charges 
 thereon, a large sum of money required 
 to pay working expenditure. Certain 
 bond-holders having a first incimibrance 
 and charge upon 180 miles of the railway 
 and its revenues, who were not parties 
 to the suit, were notified of the applica^ 
 tion and opposed the making of the 
 order. It was contended on behalf 
 of the appUcants that the bond-holders' 
 lien did not attach upon revenues re- 
 quired for working expenses. 
 
 'Held, that the question whether it 
 did or not could not be decided in this suit, 
 and that an order authorizing the loan 
 as desired could not be made without 
 showing on its face that it would not 
 insure a security which would take pre- 
 cedence over the claim of the bond- 
 holders. Allan V. Manitoba & N.W.R., 
 10 M.R. 143. 
 
 2. Working expenses of railway — 
 
 " Working expenditure." 
 
 The railway of defendants being in 
 possession of a receiver and manager, 
 whose duties, as defined by the order 
 appointing him, were to receive and 
 'manage the railway properly and assets, 
 to operate, carry on and superintend 
 the said railway, to receive ihe revenue, 
 to pass his accounts from time to time, 
 and -pay into court whatever balance 
 should be found due from him after pay- 
 ing the expenses of operation and man- 
 agement of the said railway, the de- 
 fendants applied for payment, by the 
 receiver or out of moneys paid into court 
 by him, of the salary of the secretary of 
 the Company, directors' fees, expenses 
 of an office for the Company and of 
 ; meetings of directors, etc. 
 
 Held, that these matters had nothing 
 to do with the operation and management 
 of the railway, and that the receiver 
 could not be authorized to pay them. 
 
 Held, also, that, as by another order 
 all proceedings had been stayed except 
 
 such as might be necessary in connection 
 with the management of the railway 
 by the receiver, no appUcation lor pay- 
 ment of such expenses out of the money 
 in court could be entertained pending 
 the stay of proceedings. 
 
 The term " expenses of operation and 
 management " in the Court order should 
 not be given the extended meaning of 
 the term " working expenditure," as 
 defined in s. 2, s-s. {x), of The Railway 
 Act, 51 Vic, c. 29. Charlebois v. Great 
 N.W. Ry. Co., 11 M.R. 135. 
 
 XI. MiSCBLLANEOTJS CaSES. 
 
 1. Compensation for land injur- 
 iously a&ected, though not en- 
 croached upon by work — Winnipeg 
 Charter, 1 & 2 Edw. VII, c. 77, s-s (c) 
 added to s. 708 by s. 15 o/ 3 & 4 Edw. 
 VII, c. 64. 
 
 Where the statute under which a claim 
 was made for damages to land, caused 
 by the construction of certain works and 
 the closing up of certain streets, piovided 
 that any advantage which the real 
 estate might deiive from the contemplated 
 works should be deducted from the sum 
 estimated for damage done to the land 
 in arriving at the compensation to be 
 paid, and it was found that the detriment 
 to the claimant's . property caused by 
 the closing of the streets was more than 
 offset by the advantage accruing to it 
 from the construction of the works ; it 
 was 
 
 Held, that the claimant could not 
 recover anything in respect to such 
 detiiment. 
 
 Held, also, that, even if the' detriment 
 to the claimanl's land should alone be 
 considered, he is not entitled to com- 
 pensation by reason only that he is, 
 by the construction of a public work, de- 
 prived of a mode of reaching an adjoin- 
 ing distiict from his land and is obliged 
 to use a substituted r3ute which is less 
 convenient, if the consequent depreciation 
 in the value of his property is general 
 to the inhabitants of the particular 
 locality affected, though his property 
 may be depreciated more than that of 
 any of the others. The claimant in 
 such a case would have no right of action 
 at common law, and therefore his land 
 was not ihjm'iously affecled within the 
 meaning of the statutes, the test in such 
 cases being, would the complainant have 
 a right of action if the work had been done 
 without statutory authority ? 
 
1001 
 
 RAILWAYS. 
 
 1002 
 
 King v. McArthur, (1904) 34 S.C.R. 
 570, followed. 
 
 Chamberlain v. West End &c., Ry. Co., 
 (1863) 2 B. & S. 617 ; Metropolitan v. 
 MacCarthy, ' (1874) L.R. 7 E. & I. App. 
 243 ; Caledonian Ry. Co. v. Walker's 
 Trustees, (1882) 7 A.C. 259, and Re 
 Tate and Toronto, (1905) 10 O.L.R. 650, 
 distinguished. Re Shragge and City of 
 Winnipeg, 20 M.R. 1. 
 
 2. Limitation of time for com- 
 mencing action — Injury received while 
 working at icehouse for railway company — 
 What included in word " railway " as 
 used in section 30&— ^Railways subject 
 to Dominion Legislation — Workmen's Comr 
 pensaiion for Injuries Act, R.S.M. 1902, 
 c. 178 — Distinction between rights of 
 action arising under the Railway Act, 
 and those given by the Common Law or 
 Provincial legislation, as respects the 
 limitation of time for commencing suit — 
 Railway Act, R.S.C. 1906, c. 37, 6. 2 (21) 
 and s. 306. 
 
 1. An injury caused by the defective 
 state of a scaffold being used in the con- 
 
 • struct ion of an ice house for the use of 
 a railway company is not one " sustained 
 by reason of the construction or operation 
 of the railway," within the meaning of 
 section 306 of the Railway Act, R.S.C. 
 1906, c. 37, and therefore an action to 
 lecover damages for such injury is not 
 barred by that section by the lapse of 
 a year. 
 
 Ryckman v. Hamilton, etc. Ry. Co.. 
 [1905] 10 O.L.R. 419, and C.N.R. v. 
 Robinson, [1910] 43 S.C.R. 387, followed. 
 
 2. The limitation of time prescribed 
 by section 306 relates only to actions 
 against railway companies provided for 
 in the Railway Act itself, and was not 
 intended to apply to actions the rights 
 of which exist at Common Law or under 
 Provincial legislation. 
 
 3. Dominion railways are subject to 
 Provincial legislation on the relations 
 between master and servant, such as The 
 Workmen's Compensation for Injuries 
 Act, unless the field has been covered 
 by Dominion legislation ancillary to 
 Dominion legislation respecting railways 
 under the jurisdiction of Parliament, 
 and sub-section 4 of section 306 qualifies 
 its main clause and excludes its operation 
 where the injury complained of comes 
 within the jurisdiction of, and is specially 
 dealt with by the laws of, the Province 
 in which it takes place, provided such 
 laws do not encroach on Dominion powers. 
 
 C.P.R. V. Roy, [1902] A C. 220, dis- 
 tingviished. 
 
 Canada Southern v. Jackson, (1890) 
 17 S.C.R. 325, foUowed. 
 
 Per Cameron, J. A. Although the 
 definition of the word " railway " in 
 paragraph (21) of section 2 of the Railway 
 Act would seem to include the ice house 
 in question, yet that is subject to the 
 qualifying provision " unless the context 
 otherwise requires," at the beginning 
 of section 2, and the context in section 
 306 does otherwise require. Sutherland 
 V. C.N.R.'Co., 21 M.R. 27. 
 
 3. Sale of railway under mortgage— 
 
 Jurisdiction where part of railway is outside 
 the Province — Priority of working expenses 
 of whole railway over mortgage of part. 
 
 The plaintiffs, being first mortgagees, 
 in trust for bond holders, of a section of 
 the defendants' railway Une 180 miles 
 in length, of which a small portion, 94 
 miles in length, was outside of the Pro- 
 vince, together with certain chattel 
 property, took proceedings for a sale of 
 the property and the appointment of a 
 receiver, interest being in arrears on 
 their mortgage. 
 
 Held, that the Court could not decree 
 a sale of the whole of the real property 
 mortgaged to the plaintiffs, because a 
 portion of it was outside of the juris- 
 diction, nor could the Court decree a sale 
 of that portion within the jurisdiction, 
 because it was not a portion proper 
 to be cut off and operated separ- 
 ately by a purchaser : Redfield v. Wick- 
 ham, 13 A. C. 467. . 
 
 Held, also, that the plaintiffs were 
 entitled to have a receiver appointed, 
 an account taken, and an order for pay- 
 ment into court, also an inquiry as to 
 what personal property was embraced 
 in their security and to have that sold ; 
 but that, under the statute authorizing 
 the plaintiffs' mortgage', 46 Vic, 6. 68, 
 s. 5 (D), the worfing expenses of the 
 whole railway were a first lien on the 
 revenues thereof, and must be provided 
 for in priority to the claim of the plain- 
 tiffs under their mortgage. Gray v. 
 Manitoba & N.W.R., 11 M.R. 42. 
 
 Affirmed, [1897] A.C. 254. 
 
 4. Spur track facilities — Damages for 
 refusal to supply — Limitation of time for 
 bringing action for — Board of Railway 
 Commissioners — Jurisdiction of — Railway 
 Act, 1903, ss. 24, 214, 242, 253. 
 
1003 
 
 RAILWAYS. 
 
 1004 
 
 Action for damages for taking away 
 spur track facilities formerly enjoyed 
 and refusing to restore same for plain- 
 tiffs' use on their land adjoining the rail- 
 way yards, 
 
 The Board of Railway Commissioners 
 had, by order dated 19th February, 
 1906, made under sections 214 and- 253 
 of the Railway Act, 1903, found as a fact 
 that the defendants had refused to afford 
 " reasonable -and proper faciMties " as 
 required by section 253, and directed the 
 defendants to restore these spur track 
 faoihties within four weeks, which order 
 was affirmed by the Supreme Court of 
 Canada, 37 S.C.R. 541. , 
 
 Held, (1) An action hes for such dam- 
 ages under the circumstances, the finding 
 of fact by the Board being conclusive 
 under section 42 (3) of the Act, and the 
 Court has jurisdiction to find and assess 
 the damages. 
 
 (2) Plaintiffs were entitled to damages 
 from the date of the breach and not 
 merely from the date of the Board's 
 order. 
 
 (3) The Board had no jurisdiction "to 
 deal with the question of damages and, 
 not having assumed to do' so, the plain- 
 tiffs were not estopped from bringing 
 this action by any adjudication of the 
 Board. 
 
 (4) Damages should be allowed dm-ing 
 the time taken up by the appeal to the 
 Supreme Court and Peruvian Guano Co. v. 
 Dreyfus, [1902] A.C. 166, did not apply. 
 
 (5) Section 242 of the, Act, limiting 
 the time for bringing " aU actions or 
 suits for indemnity by reason of the 
 construction, or operation of the railway," 
 does not apply to an action for a breach 
 of a statutory duty in neglecting and 
 refusing to supply reasonable and proper 
 facilities. 
 
 Per Cameron, J. A. The word " rail- 
 way," under s-s. 5 of s. 2 of the Railway 
 Act of 1903, includes stations and sidings, 
 not only those constructed and in use, 
 but also those which the company has 
 power to construct or operate. In this 
 respect the statutory provisions in Can- 
 ada are widely different from those in 
 Great Britain. 
 
 South Eastern B. Co. v. Railway Com,- ' 
 missioners, 6 Q.B.D. 586, and Darlaston 
 Local Board v. London & North Western 
 B. Co., [1894] 2 Q.B. 694, distinguished. 
 Bobinson v. C.N.B., 19 M.R. 300. 
 
 Affirmed, 43 S.C.R. 387. 
 Affirmed, [1911] A.C. 739, 
 
 5. Statutory powers, exercise of — 
 
 Railway Act, 1888, ss. 90, 92, U6— Action 
 for damages in running trial line — When 
 remedy limited to arbitration — Damages 
 resulting from exercise of statutory powers. 
 
 If damages are occasioned to a land- 
 owner by the exercise of the powers con- 
 ferred on a railway company by the Rail- 
 way Act and there is no negligence in 
 the mode of exercising such powers, the 
 person injmiously aSected is limited 
 to the provisions of the Act for con'- 
 pensation : Roy v. C.P.R., [1902] A.C. 
 220, smdBennett v.G.T.R., (1901) 2 O.L.R. 
 425. But, if there is negUgehce in such 
 exercise of statutory powers, or if damages 
 are unnecessarily infficted, then an action 
 wiU he and the complainant is not limited 
 to the remedy given by the arbitration 
 clauses of the Act. 
 
 The plaintiff's clairn was for damages 
 for cutting down trees in his grove through 
 which the defendants were making a 
 survey for a trial Une for a proposed 
 branch of their railway, but the possi- 
 biUty of rurming the trial line through 
 the grove without cutting down the 
 trees by making a rectangular detour ■ 
 around it was not raised at the trial 
 and the trial Judge did not pass upon it. 
 
 Held, that the plaintiff, who had been 
 non-suited at the trial, was entitled to 
 a new trial to determine whether the 
 Une could not have been run in the 
 manner suggested. Barrett v. C.P.R., 
 16 M.B. 549. 
 
 At the new trial ordered in the fore- 
 going case, the County Court Judge 
 again non-suited the plaintiff who ap- 
 pealed to the Court of Appeal. 
 
 Held, that the evidence showed that 
 it was unnecessary to cut down the trees 
 for the purpose of running the required 
 trial Une and that the plaintiff was en- 
 titled to recover in the action, and that 
 judgment should be entered for him for 
 $250.00 damages and costs of both trials 
 and both appeals. 16 M.R. 558. 
 
 See Arbitration and Award, 6. 
 
 — Constitdtional Law, 15. 
 
 — Crown Lands, 1. 
 
 — Injunction, I, 2, 10. 
 
 — Mortgagor and Mortgagee, VI, 
 
 13, 14. 
 
 — Negligence, II, 2; V. 
 
 — Production op Documents, 15. 
 
 — Statutes, Construction of, 2. 
 
 — Summary Judgment, III, 1. 
 
 — Workmen's Compensation for In. 
 
 JURIES Act, 4. 
 
1005 
 
 RATE BY-LAW. 
 
 1006 
 
 RATE BY-LAW. 
 
 See Sale op Land for Taxes, IX, 1. 
 
 RATIFICATION. 
 
 Of sale made by agent without 
 authority — Relation back — Intervening 
 rigni of third party — Injunction — Damages 
 — Undertaking to pay damages — Sale of 
 land. 
 
 M., as- agent of S., on 18th July, 1910, 
 made a sale of the land in question to 
 the plaintiff conditional on its being 
 apl)roved by S., who lived in Victoria, 
 B.C. There was no evidence of such 
 approval prior to 5th October, 1910, 
 when S. conveyed the land to the plaintiff, 
 
 Held, that, although the making of 
 the conveyance was a ratification of the 
 sale made by M. in the previous July re- 
 lating back to the date of the contract, 
 such ratification would not operate so 
 as to affect the rights of the defendant 
 who had been cutting hay on the land 
 under a permit given to him in February, 
 1910, by M., with the authority of S., 
 granting him the right to cut and remove 
 the hay on the land " providing that the 
 land is unsold before the hay is cut." 
 
 Patterson v. Tingley, 10 N.B.R. 553, 
 and Nicholson v. Page, 27- U.C.R. 318, 
 foEowed. 
 
 This action was begun on 18th August, 
 1910, when the defendant had cut part 
 of the hay under his permit, and the 
 plaintiff, upon the usual undertaking 
 as to damages, obtained an ex parte 
 injunction against the defendant's doing 
 anything more on the premises until 
 the 25th of the same month, when the 
 injunction was dissolved as to the cut 
 hay, and continued to the hearing as 
 to the uncut hajr only. There was 
 nothing at the hearing to show whether 
 or not the undertaking as to damages 
 was continued after the 25th of August. 
 
 HM, that it could not be assumed 
 that it was, and that, in the absence of 
 such undertaking, although the action 
 was dismissed with costs, the defendant 
 could only recover in this action such 
 damages as he had sustained by reason 
 of the injunction as to the cut hay from 
 the 18th to the 25th of August. Oliver 
 V. Slater, 16 W.L.R. 107. 
 
 See Boundary Lines. 
 — Company, IV, 1. 
 
 See Fraud, 2. 
 
 — Infant, 1. 
 
 — Landlord and Tenant, T, 5. 
 
 — Municipality, VI, 2„ 
 
 — Partnership, 11. 
 
 — Principal and Agent, I, 7; III; V^ 1. 
 
 — !6,a1lways, ix, 2. 
 
 ■ — Rectification of Deed, 1. 
 
 — Sheriff, 7. 
 
 I. 
 
 II. 
 
 III. 
 
 iV. 
 V. 
 
 REAL PROPERTY ACT. 
 
 Caveat. 
 
 IsstJE Under. 
 
 Petition Under. 
 
 Trusts of Property Under. 
 
 Miscellaneous Cases. 
 
 I. Caveat. 
 
 1. Addition of caveator — Estate or 
 interest of caveator — Directions in statute 
 imperative. , 
 
 In an application under The Real 
 Property Act the caveat gave no addition 
 for the caveator, though the affidavit 
 in support described him as an accountant. 
 
 Held, that the addition of the caveator 
 must be set out in the caveat. 
 
 The statenjent of the caveator's estate 
 and interest in the land, both in the 
 caveat and in the affi^davit, was only : 
 " I have an attachment against T. M., 
 who owns, or has a personal interest in, 
 the land described." 
 
 Held, insufficient. Jones v. Simpson, 
 8 M.R. 124. 
 
 2. Address and description of cave- 
 ator — Signature of caveat by company — 
 Foreign corporation claiming interest in 
 land. 
 
 (1) In proceeding by way of caTveat 
 and petition under The Real Property 
 Act, if the caveator is an incorporated 
 company, it is sufficient to state the fuU 
 name of the company without further 
 description, although section 143 of The 
 Real Property Act, R.S.M., c. 133, 
 says that " every caveat filed with the 
 District Registrar shall state the name 
 and addition of the person by whom or 
 on whose behalf the same is filed." 
 
 Shears v. Jacob, (1866) L.R. 1 C.P. 
 513, and Woolf v. The City Steamboat Co., 
 (1849) 7 C.B. 103, referred to. 
 
 (2) The signature to the caveat was 
 the name of the company with " O., 
 H. & N., managers," underneath, without 
 the corporate seal. 
 
1007 
 
 REAL PKOPERTY ACT. 
 
 1008 
 
 Held, suflBcient. 
 
 (3) A registered judgment creditor has 
 a right, under The Real Property Act, to 
 'claim an estate or interest in the lands 
 bound by the judgment. 
 
 (4) It is not necessary for the peti- 
 tioners, although a foreign corporation, 
 to show that they are authorized to hold 
 real estate in this Province. North of 
 Scotland Canadian Mortgage Co. v. Thomp- 
 son, 13 M.R. 95. 
 
 3. Affidavit to be filed with caveat. 
 
 An affidavit filed in support of a caveat 
 did not state that, in the deponent's 
 belief, the applicant had a good and valid 
 claim upon the land, as required by the 
 statute. 
 
 Held, that the filing of a caveat that 
 comp.ies with the statute is a condition 
 precedent to the jurisdiction of the Court 
 to entertain a petit.on upon it. The 
 petition was, therefore, dismissed with 
 costs. McArthur v. Glass, 6 M.R., 224. 
 
 4. Description of land. 
 
 A caveat filed under the Real Property 
 Act must contain a proper description 
 of the land in question, and it is not 
 sufficient that such description is given 
 in the affidavit verifying the caveat 
 which is filed with it. 
 
 The petition of the caveators, following 
 a caveat which was defective in this 
 respect, was dismissed with costs. 
 
 JoTUS V. Simpson, 8 M.R. 124, and 
 McKay v. Nanton, 7 M.R. 250, followed. 
 Martin v. Morden, 9 M R., 565. 
 
 5. Description of property — Second 
 caveat. 
 
 The direction in Schedule O to The 
 Real Property Act does not require that 
 the description of the land given in the 
 caveat should be word for word the same 
 as that in the application, but the caveat 
 will be sufficient if the description given 
 is such as will enable the property to be 
 located on the ground. 
 
 The description in the caveat was as 
 follows : " Lot No. 32 in block 15, as 
 shown upon a plan of Oak Lake, being a 
 subdivision 'of the NJ of section 23, in 
 township 9, in range 24 W. of the P.M. 
 in the Province of Manitoba," and it 
 was shown that there were four plans 
 filed in the Registry Office relating to 
 different portions of the town of Oak 
 Lake. 
 
 Held, nevertheless, that, as it was npt 
 shown that there was a lot No. 32 in 
 
 block 15 in more than one of such plans, 
 the description was sufficient. 
 
 The caveat was filed in the names 
 of Charles Adams and John H. Adams 
 as partners in the firm of Adams Bros., 
 as creditors of a certain insolvent, and 
 Charles Adams had previously filed a 
 caveat as assignee in trust against the 
 same apphcation, and based upon the 
 same allegations as to title. 
 
 Held, that the objection that the 
 • present was a second caveat ffied without 
 leave by the same person could not be 
 sustained. Adams v. Hockin, 12 M.R. 
 433. 
 
 6. Mistake in name of Applicant — 
 
 Place to serve notices. 
 
 Augustus Meredith Nanton having 
 apphed for a certfficate of title of the 
 lands in question under The Real Pro- 
 perty Act of 1889, M. filed a caveat 
 claiming an estate in fee simple in the 
 lands, and he then filed a petition to 
 establish his claim. In the caveat the 
 name of the applicant was stated to be 
 Augustus Meredith Newton. It appeared 
 that in the usual notice served upon the 
 caveator by direction of the District 
 Registrar, under section 52, the name 
 " Nanton " was not written plainly, 
 and that the application mmiber was 
 correctly given, and the lands correctly 
 described in the caveat. 
 
 Held, that the direction in Schedule O 
 of the statute, as to stating the name of 
 the apphcant is not imperative, and that 
 the mistake was only an irregularity, 
 and the caveat was not invalid on account 
 of it. , 
 
 The petition alleged that the caveatee 
 had applied to bring the lands under the 
 Real Property Act, and that the peti- 
 tioner had filed a caveat forbidding this, 
 but did not expressly allege that the 
 lands had not been registered under the 
 Act. 
 
 Held, that on the facts stated the 
 Court wiU assume that the caveat was 
 lodged before the registration of the certifi- 
 cate of title. 
 
 Section 130, sub-section 8, of The Real 
 Property Act of 1889 provides that 
 every caveat " shall state some address 
 or place within the Province Of Manitoba 
 at which notices and proceedings relating 
 to caveats may be served." 
 
 The caveat did not name a place at 
 which notices, &c., might be served, 
 but said, " I appoint A. N. McPherson, 
 Commissioner of Railways, office, Winni- 
 
1009 
 
 REAL PROPERTY ACT. 
 
 1010 
 
 peg,' my agent',' On whom notices and 
 proceedings thereto may be served." 
 
 Held, that ''the statute requires the 
 caveat to state some place at which 
 notices may be served, and that the 
 statutory direction in this respect must 
 be deemed to be imperative. The caveat 
 in this case merely naming a person, 
 the petition could not be entertained. 
 
 McAHhw v. Olass, 6 M.R. 224, followed. 
 McKay V. Nanton, 7 M.R. 250. 
 
 Distinguished : Sprague v. Graham, 7 
 M.R. 398. 
 
 7. Petition following — Description of 
 land — Statement of interest claimed — Ad- 
 dress of caveator — New evidence on appeal 
 —Rule 476, Q.B. Act, 1895. 
 
 In the caveator's petition his name 
 was given without any address or de- 
 scription, and a statement of facts on 
 which he relied was given, from which it 
 might be inferred what interest or title 
 he claimed in the lands, but the petition 
 did not state specifically what estate, 
 interest or charge he claimed as required 
 by Rule 1 of Schedule R. 
 
 The land> was described in the caveat 
 and petition as " Lot 32 in block 15 as 
 shewn upon a plan of Oak Lake", being a 
 sub-division of the north half of section 
 23, in township 9; range 24 west of the 
 principal meridian of Manitoba." 
 
 Held, 1. That the description of the 
 land was not necessarily indefinite and 
 uncertain, unless it was shewn that there 
 was more than one plan of Oak Lake ; 
 and that, if it followed the description 
 given in the appUcation of the caveatee, 
 it would, according to the form in Schedule 
 O of The Real Property Act, be sufficient. 
 
 2. That both the caveat and petition 
 showed sufficiently what estate, interest 
 or charge the caveator claimed. 
 
 3. That there was no rule of Court 
 requiring the address or description of 
 the caveator to be stated in his petition. 
 
 This being an appeal to the Full Court 
 from the decision^of Taylor, C. J., allowing 
 an appeal from the Referee, the respon- 
 dent applied imder Rule 476 of The 
 Queen's Bench Act, 1895, for permission 
 to put in evidence to show that the 
 description in the caveat differed mater- 
 ially from that in the application. 
 
 Ordered, that, upon payment of the 
 costs of the appeal withiA five days 
 after taxation, such evidence should be 
 received, and the matter referred back 
 to the Referee with leave to adduce it, 
 
 but that, if the costs should not be so 
 paid, the order for an issue should stand 
 confirmed with costs. Adams v. Hoekin, 
 12 M.R. 11. 
 
 8. Petition of caveator must be 
 founded on caveat. 
 
 A caveat filed under section 133 of 
 The Real Property Act, R.S.M. 1902, 
 c. 148, must accurately set forth the 
 title, estate or interest in the land claimed 
 by the caveator, and a petition filed by 
 the caveator, after notice served upon 
 him by the caveatee, under section 
 131 of the Act, requiring the caveator 
 to take proceedings upon his caveat, 
 must be one asserting substantially 
 the same title, estate or interest as that 
 stated in the caveat or it will be dis- 
 missed. 
 
 McArthur v. Glass, (1889) 6 M.R. 224 ; 
 McKay v. Nanton, (1891) 7 M.R. 250, 
 and MaHin v. Morden, (1894) 9 M.R. 565, 
 followed. Re Cass & McDermid, 20 M.R. 
 139. 
 
 9. Second caveat. 
 
 The caveatee having applied for a 
 certificate of title under The Real Pro- 
 perty Act, the caveators filed a caveat 
 forbidding the same. Three weeks after- 
 wards, owing to there being a defect 
 in the first caveat, they filed a second 
 without having an order from a Judge 
 giving them leave to do so. The first 
 caveat had not lapsed or been withdrawn 
 or discharged brfore the second was filed. 
 The petition of the caveators was based 
 on the second caveat. 
 
 Held, that there was no authority 
 given by the Act for filing the second 
 caveat without a Judge's order, and that 
 the petition based on such second caveat 
 was invaUd, and should be dismissed 
 with costs. Frost, Caveator and Driver, 
 Caveatee, 10 M.R. 209. 
 
 Distinguished, Alloway v. St. Andrews, 
 15 M.R. 188. 
 
 10. Filing second caveat based on 
 additional right or title. 
 
 1. The words '' a caveat " in section 
 127 of The Real Property Act, R.S.M. 
 1902, c. 148, in view of s-s. (m) of s. 8 
 of The Interpretation Act, R.S.M. 1902, 
 c. 89, cannot be construed to mean 
 "only one caveat;" and, if the caveator, 
 after filing his caveat and taking pro- 
 ceedings under it for the trial of an issue, 
 pending such trial acqmres a new title 
 
1011 
 
 REAL PROPERTY ACT. 
 
 1012 
 
 or estate in the land in question, he may 
 file a new caveat thereon without getting 
 a judge's order for leave to do so. 
 
 2. The provisions of section 140 of 
 the Act only apply to a second caveat 
 " in relation to the same matter," that 
 is the same estate or interest on which 
 the first caveat was based. 
 
 Frost V. Driver, (1894) 10 M.R. 209, 
 distingtiished. 
 
 3. When such a second caveat is pro- 
 perly filed, the trial of the issue under 
 the first caveat should be postponed to 
 enable proceedings to be taken upon 
 such new caveat, so that the trial of the 
 issues under both caveats may take place 
 at the same time, and, if convenient, the 
 issues might be consolidated. Alloway 
 V. , Rural Mun. of St. Andrews, 15 
 M.R. 188. 
 
 II. Issue Under. 
 
 1. Form of order for trial of — Costs. 
 An order directing the l^rial of an issue; 
 
 under The Real Property Act should 
 reserve aU further questions, including 
 the question of costs, until after the trial 
 of the issue. Lavalle v. Drumnwnd, 6 
 M.R. 120. 
 
 2. ISfEect of non-suit — New trial — 
 Discretion. 
 
 Where the plaintiff in an issue under 
 The Real Property Act is non-suited, a 
 Judge has full discretion to allow or 
 refuse a new trial of the issue. 
 
 H. appUed to bring certain lands under 
 The Real Property Act, when G. filed a 
 caveat, which she followed up with a 
 petition. Upon the petition coming on 
 for hearing, an issue was directed in 
 which G. was made plaintiff. At the 
 trial G. did not give sufficient proof of 
 her title to the land, and was non-suited. 
 G. then applied for a new trial, in order 
 o produce further evidence. This evi- 
 dence might have been given at the first 
 trial 
 
 Held, that, taking all the circumstances 
 of this case into consideration, but 
 without laying down an absolute rule, 
 the application for a new trial should be 
 refused and the petition dismissed, with 
 costs. Grant v. Hunter, 8 M.R. 220. 
 
 3. Parties to issue — Practice. 
 
 N. applied to bring certain lands under 
 the provisions of The Real Property 
 Act and in his application directed that 
 the certificate of title should be issued 
 
 in the name of W. Notice of the appli- 
 cation was served on H. who filed a 
 caveat and followed it up with a petition. 
 On the return of the petition an issue was 
 directed. H. appUed to have W. added 
 as a party to the issue, he being the 
 true owner of the land. 
 
 Held, that both N. and W. should be 
 parties to the issue. Hay v. Nixon, 7 
 M.R. 579. 
 
 4. Practice — Who should be ■plainUff in 
 issue. 
 
 In 1882, B. agreed to pm'chase certain 
 lands from the Government, and paid 
 a portion of the i)urchase money. In 
 189.1, he gave a quit claim deed to G., 
 who paid the balance of the purchase 
 money and obtained a patent from the 
 Crown. G. then applied for a certificate 
 of title under The Real Property Act. 
 R. then lodged a caveat, and presented a 
 petition in which he claimed title under 
 a tax sale deed issued in 1889. Both 
 parties agreed that it was a matter in 
 which a bill should be filed. The question 
 Nvas who should be plaintiff. 
 
 Held, that R., the caveator, should 
 be plaintiff. 
 
 Held, also, that, as a general rule, the 
 caveator should be plaintiff. Bvddell v. 
 Georgeson, 8 M.R. 134. 
 
 5. Practice — Who should be plaintiff. 
 The caveators, by their petition under 
 
 The Real Property Act, claimed a charge 
 on the land in question by virtue of 
 a writ of execution against the 
 lands of one Andrew Morden, whom they 
 alleged to have been the owner of the 
 land when their writ was placed in the 
 sheriff's hands. 
 
 The caveatee, who had appUed for a 
 certificate of title, claimed the land under 
 a tax sale deed, and in answer to the 
 petition further set up that the land was 
 exempt from seizure under execution as 
 having been the homestead of Andrew 
 Morden, also that he was advised and 
 believed that the caveators' writ had not 
 been kept in force by renewal, but these 
 matters were not sufficiently proved by 
 his affidavit. > 
 
 Held, that the burden of proof was on 
 the caveatee, and that he must be the 
 plaintiff in the issue directed on the 
 petition. Martin v. Morden, 9 M.R. 567. 
 
 6. Practice — Plaintiff in issue. 
 
 A mortgagee of land having applied 
 to bring it under The Real Property Act, 
 
1013 
 
 REAL PROPERTY ACT. 
 
 1014 
 
 a caveat was filed, and the caveator pro- 
 ceeded by petition for the piirpose of' 
 estabUshing his claim, alleging that he 
 had acquired a title from the mortgagor 
 subsequent to the caveatee's mortgage, 
 that the mortgagee's claim was barred 
 by The Real Property Limitation Act, 
 and that he himself was in possession 
 of the property, which he verified by 
 affidavit. 
 
 Held, that, in the issue ordered to 
 determine the question whether the 
 mortgagee's rights had been barred under 
 the statute, the onus of showing this 
 was upon the petitioner, and he should 
 be the plaintiff. Bucknam v. Stewart, 
 11 M.R. 491. 
 
 7. Security for costs. 
 
 B. applied for a certificate of title. 
 McC. filed a caveat and an order was 
 made for the trial of an issue in which 
 he was made plaintiff. B. appUed for 
 security for costs. His title was founded 
 on a sale for taxes. 
 
 Held, that B. was in reality the plain- 
 tiff and could not obtain security for 
 costs. McCarthy v. Badgley, 6 M.R. 270. 
 
 8. Security for costs. 
 
 A. applied for a certificate of title. B. 
 filed a caveat. Both parties claimed 
 under conveyances from the patentee. 
 
 HM, that, in an issue to try the right, 
 A. should be plaintiff and, being out of 
 the jurisdiction, should give security 
 for costs. 
 
 McCarthy v. Badgley, 6 Man. R. 270, 
 considered. Grant v. Hunter, 6 M.R. 
 550. 
 
 9. Tax sale deed — Who should he 
 plaintiff — Onus of proof. 
 
 In a petition under The Real Property 
 Act, the petitioner alleged that he had 
 a title in fee simple to the lands in ques- 
 tion. The eaveatee claimed under a 
 tax sale deed, but did not distinctly 
 negative the petitioner's title, except 
 as a consequence of the tax sale. 
 
 Held, that this onus of establishing 
 his title was on the eaveatee, and that he 
 should be made plaintiff in the issue. 
 Howell V. Montgomery, 8 M.R. 499. 
 
 III. Petition Under. 
 
 1. Affidavits in support of petition 
 after caveat. . 
 
 It is not necessary to file affidavits 
 in support of a petition based upon a 
 
 caveat in the Land Titles Office. Cause 
 may be shewn by argument upon the 
 allegations in the petition, or by affidavits ; 
 after which the Judge may, if necessary, 
 permit the petitioner to adduce evidence, 
 or may direct an issue. Be McArthur & 
 Glass, 6 M.R. 301. 
 
 2. Dismissal for want of prosecution 
 
 — Rule 16 modifies Rule 13 — Husband 
 and wife — Married woman — Separate 
 estate. 
 
 G. filed a petition to enforce a caveat 
 under The Real Property Act; but did 
 not serve . the petition within the time 
 prescribed by rule 13 of said Act. A 
 motion was made to dismiss the petition 
 for want of prosecution. 
 
 Held, that there could not be a dis- 
 missal in the first instance, that rule 16 
 modifies rule 13, and that the only order 
 that could be made was one giving time 
 to serve. 
 
 The eaveatee was a married woman, 
 and it was held that the facts set out 
 in her affidavit were insufficient to shew 
 that the land in question was her separate 
 estate. Graham v. Hamilton, 8 M.R. 459. 
 
 3. Married woman — Next friend- 
 Appointment of — Dismissal of petition — 
 Discretionary order — New petition — Leave 
 to file — Right to file when dismissal not 
 on merits. . 
 
 S., a married woman, filed a petition 
 upon a caveat under The Real Property 
 Act. The petition shewed that S. was 
 a married woman, and that, "under and 
 by virtue of a certificate of title issued 
 to the caveator under the provisions of 
 The Real Property Act of 1885, the 
 caveator claimed to be entitled to an 
 estate in fee simple in the above-men- 
 tioned lands, and to be the owner thereof." 
 When the petition came on for hearing 
 in Chambers, it was objected that S. 
 should have petitioned by her next 
 friend, and ^n enlargement for a week 
 was granted for her to have one appointed. 
 As this was not done within the time 
 allowed, a fm-ther peremptory enlarge- 
 ment of three days was granted. On the 
 day that the petition finally came on 
 for hearing, counsel for the petitioner 
 filed the consent of B. to be appointed 
 next friend, and asked to have Mm ap- 
 pointed ex parte ; but the Judge would 
 only grant a summons, and he afterwards, 
 that day in Chambers, dismissed the 
 petition. The petitioner applied to the 
 Full Court to have the order dismissing 
 
1015 
 
 REAL PROPERTY ACT. 
 
 1016 
 
 the petition set aside, or varied by grant- 
 ing leave to file a new petition. 
 
 Held, that, as it did not clearly appear 
 on the face of the petition that the pro- 
 perty in question was the separate pro- 
 perty of the caveator, it was necessary 
 for her to have a next friend appointed. 
 
 Held, also, that the Judge in Chambers, 
 having all the circumstances before him, 
 had exercised his discretion in dismissing 
 the petition, and the Court should not 
 interfere. 
 
 Held, also, that nothing had been shewn 
 to warrant a positive order granting leave 
 to file a new petition. 
 
 Per DuBTTC, J. The petition was not 
 dismissed on the merits, and the caveator 
 might file a new one without special 
 leave. Schultz.y. Frank, 8 M.R. 345. 
 
 4. Pleading in — Allegation in petition 
 — Affidavit supporting caveat. 
 
 In a petition under The Real Property 
 Act, it is not necessary to allege that 
 the caveat was supported by an affidavit 
 or statutory declaration. When the pet- 
 ition alleges that a caveat was filed in 
 the prescribed form, it is presumed that 
 the requirements of , the Act have been 
 complied with. Downs v. Campbell, 7 
 M.R. 34. 
 
 5. Pleading in — Necessary allegation 
 — Practice. 
 
 Where a petition to enforce a caveat, 
 lodged pursuant to section 130 of The 
 Real Property Act of 1889, is filed after 
 the expiration of one month from the 
 receipt of the caveat by the District 
 Registrar, it is necessary to allege in the 
 petition that a certificate of title has 
 not been issued. 
 
 McKay v. Nanton, 7 M.R., 250, 
 distinguished. ' Sprague v. Graham, 7 
 M.R. 398. 
 
 6. Pleading — Statement of objections to 
 validity of tax sale. 
 
 The caveator filed a petition under 
 Schedule L, Rule 1, of The Real Pro- 
 perty Act, 1 & 2 Edw. VII, c. 43, to 
 prevent the caveatees, tax sale purchasers, 
 from getting a certificate of title applied 
 for by them ; and, after setting out the 
 nature of her title by grant from the 
 Crown, alleged that the caveatees claimed 
 title to the same land under certain 
 alleged sales of same for taxes and that 
 the said tax sales and all proceedings 
 connected therewith under which the 
 caveatees claimed title were illegal, null 
 
 and void, and that the caveatees were 
 not at the time of their application tlje 
 owners of the land. 
 
 Held, without deciding whether it 
 is necessary in such a petition to go 
 further than to set forth fully the title 
 of the caveator, that, as the petitioner 
 had set out the claim of the caveatees 
 and the nature of it, he should also have 
 shown in what particulars the title of 
 the caveatees was defective or invalid, 
 and what facts were relied on to have 
 the tax sales declared void and prima 
 facie to displace the adverse claims of 
 the tax purchasers. 
 
 The order of the Chief Justice giving 
 leave to the petitioner, within a limited 
 time and upon payment of the costs of 
 the appeal to him from the Referee 
 and of the hearing before the Referee, to 
 amend the petition as she might 'be 
 advised and to bring it on for further 
 hearing before the Referee, and that in 
 default the. petition should be dismissed 
 with costs, was afiirmed with costs. 
 Iredale v. Mclntyre, 14 M.R. 199. 
 
 7. Security for costs — Practice — Ir- 
 regularity — King's Bench Act, Ride 342. 
 
 1. A caveator proceeding under The 
 Real Property Act by way of petition 
 to estabhsh a claim to the land, after 
 service of notice at the instance of the 
 apphcant for a certificate of title, must, 
 as a general rule, be treated as the plain- 
 tiff in the proceedings and, if he is re- 
 sident out of the jurisdiction, must give 
 security for the caveatee's costs. 
 
 2. That the caveator's claim is in 
 respect of a registered mortgage on the 
 land, upon which he swears there is 
 money owing and unpaid, will not take 
 the case out of the general "rule, if the 
 caveatee in good faith disputes that there 
 is anything due or owing on the mortgage. 
 
 3. Under such circumstances the owner- 
 ship of the mortgage within the juris- 
 diction will not reUeve a caveator from 
 the necessity of furnishing other security 
 for costs. 
 
 Armstrong v. Armstrong, (1898) 18 P.R. 
 65, distinguished. 
 
 Objection was taken to the regularity 
 of the prEecipe, being the first proceeding 
 taken by the caveatee in the matter, for 
 want of the indorsement of his place of 
 residence and description upon it as 
 required by the practice of the court. 
 
 Held, that, under Rule 335 of The 
 Bang's Bench Act, no effect should be 
 given to the objection, as it was purely 
 
1017 
 
 REAL PROPERTY ACT. 
 
 1018 
 
 technical and it did not appear that the 
 interests of the caveator had been or 
 could be affected by the irregularity, 
 if it were one. Lena v. Smith, 14 M.R. 
 258. 
 
 8. Staying proceedings until costs 
 of _ former suit in Queen's Bench 
 paid — Laches. 
 
 The Court has no jurisdiction to stay 
 proceedings on a petition filed to enforce 
 a caveat under The Real Property Act, 
 because the costs of an action or suit 
 in the Court of Queen's Bench relating 
 to the same matter have not been paid. 
 
 Where a petition to enforce a caveat 
 under The Real Property Act alleged 
 that the land had been conveyed years 
 before, but claimed a lien for unpaid 
 purchase money, 
 
 Held, that, until The Statute of Limit- 
 ations barred the claim, delay in enforcing 
 it could not be made a ground for the 
 Court refusing relief. Graham v. Ham- 
 ilton, 8 M.R. 443. 
 
 IV. Trusts of Pkopbrty Undek. 
 
 1. Priority between registered fi. 
 fa. and unregistered transfer. 
 
 After a fi. fa. against the registered 
 owner of lands had been registered, a 
 prior transferee of the whole estate re- 
 gistered his transfer. 
 
 Held, that a transfer gives to the 
 transferee the right to have the land 
 registered in his name, but until it is 
 registered it has~no effect upon the land ; 
 and that the execution creditor was there- 
 fore entitled to priority. Re Herbert & 
 Gibson, 6 M.R. 191. 
 
 2. Priority between registered fi. 
 fa. and unregistered transfer — Pet- 
 ition — Affidavit evidence. 
 
 On the 23rd February, 1888, G. was 
 the registered owner in fee simple of 
 certain lands under The Real Property 
 Act of 1885. 'On or about that day G. 
 executed a transfer of the lands to H. 
 and was paid the purchase money, but 
 the transfer was not registered until 
 the 1st May, 1888. In the meantime a 
 writ of execution against the lands of G. 
 was registered. The Registrar-General, ■ 
 under section 110 of The Real Property 
 Act of 1885, submitted for the opinion 
 of a Judge the question whether the 
 land was bound by the execution. The 
 
 question was argued before Bain, J., 
 who gave an opinion that the land was 
 bound. H. afterwards transferred to 
 S., who filed this petition for a direction 
 to register the transfer, and to issue to 
 him a clear certificate of title. The 
 petition came up in chambers, and both 
 sides filed affidavits, after which Dtjbuc, 
 J., referred the petition to the Full Court. 
 Held, 1. That Bain, J., did not decide 
 the question, but merely gave an opinion 
 for the guidance of the Registrar-General, 
 leaving the parties to raise the question 
 again, as they had by this petition,. 
 
 2. That the Registrar-General could 
 not inquire into the existence of a bene- 
 ficial interest apart from the registered 
 title. The petitioner's remedy, if any, 
 was in a Court of Equity. 
 
 Semble, a petition under the 118th 
 section of The Real Property Act of 1889 
 may be summarily disposed of on affidav- 
 its, but, at all events, the respondent, 
 having filed affidavits in reply, was 
 too late to raise the objection. 
 
 The statute does not by registration 
 recognize trusts, or the separation of 
 legal and beneficial ownerships, but, as 
 against the registered owner, Courts of 
 Equity will recognize and give effect to 
 trusts and contracts by acting in personam. 
 Re Herbert & Gibson, 6 M.R. 191, explain- 
 ed. Re Massey & Gibson, 7 M.R. 172. 
 
 3. Trusts and powers not appearing 
 on the certificate — Certifixxde of title 
 final at each stage. 
 
 A certificate of title for certain lands 
 had been issued to M., (described therein 
 as sole surviving executrix and devisee 
 under the will of B.,) which stated that 
 M. was seized of an estate in fee simple 
 in the lands subject to the following 
 incumbrances : 1st, a mortgage made by 
 B. to C; 2nd, a lien or charge for $5,000 
 in favor of M.B. under the said will ; 3rd, 
 a mortgage made by M. herself to C, 
 attaching upon M.'s interest as such 
 devisee only. Afterwards M. sold part 
 of the land to D. and executed a transfer 
 thereof to liim, and the District Registrar, 
 holding that M. had a power of sale as 
 executrix under B.'s will, which enabled 
 her to sell the land for the purpose of 
 paying debts and legacies, and finding, 
 as the fact was, that the sale was necessary 
 for that purpose, decided to issu-e a new 
 certificate of title to D., free and clear 
 of all incumbrances except the mortgage 
 made by the testator. 
 
1019 
 
 REAL PROPERTY ACT. 
 
 1020 
 
 To this C. objected, and the matter 
 was referred to the Court on appeal from 
 the District Registrar. 
 
 Held, that it was not competent for 
 the District Registrar to go behind his 
 former certificate, and find in the re- 
 gistered owner a power inconsistent 
 with the title stated in it, and thus cut 
 out two of the incumbrances therein set 
 forth. 
 
 Be Massey and Oibson, 7 M.R. 172, 
 followed. 
 
 Held, also, that, even if the former 
 certificate could have been corrected by 
 the District Registrar as erroneous, such 
 power of correction was in him and could 
 not be exercised by the Court on the 
 'appeal. 
 
 The 122nd section of The Real Property- 
 Act appUes where the holder of a certi- 
 ficate of title has died or become bank- 
 rupt and there is a transmission of his 
 interest, but has no application „ where 
 the land transmitted had not been brought 
 under the Aci. Re Moore and Coiv- 
 federation Life Ass., 9 M.R. 453. 
 
 V. MiSCELLAlSFEOUS CaSES. 
 
 1.- Action for damages against Dis- 
 trict Registrar — Pleading — Denial of 
 notice. 
 
 In declaring against the District Re- 
 gistrar as nominal defendant in an action 
 under The Real Property Act, to recover 
 damages out of the Assurance Fund for 
 being deprived of one's land by the issue 
 of a certificate of title to another, it is 
 necessary to allege that the action is 
 brought under the statute and that the 
 act complained of was done contrary 
 to the provisions of the statute. 
 
 It is not necessary in such declaration 
 to allege that no notice of the proceedings 
 leading to the grant of the certificate 
 had been served upon the plaintiff, or 
 to negative any of the matters which 
 section 168 of the Act says shall be a bar 
 to the action. These are properly the 
 subject of a plea or pleas to the declar- 
 ation. Wilson v. District Registrar, 
 Winnipeg, 9 M.R. 215. 
 
 2. Cancelling certificate of title 
 issued in error, where no fraud is 
 shown — Title to lands bought at tax sale 
 — Real Property Act, R.S.M., c. 133, ss. 
 ,126, 127, 128—60 Vic., c. 21, s. 1—61 
 Vic, c. 33, ss. 8-10. 
 
 A certificate of title issued through an 
 error on the part of a District Registrar 
 
 may be ordered to be cancelled pursuant 
 to the provisions of sections 126 and 127 
 of The Real Property Act, R.S.M., c. 
 133, notwithstanding the proviso in 
 section 128 of the Act and that there was 
 no fraud on the part of the holder of the 
 certificate. 
 
 Under the Act 60 Vic, c. 21, s. 1, as 
 amended by 61 Vic, c 33, ss. 8-10, which 
 prescribes the proceedings for obtaining 
 certificates of title for lands purchased , 
 at tax sales, it was error in law for the 
 District Registrar to issue the certificate 
 in question within six mQnths from the 
 flate of the apphcation, as he did, although 
 he had the consent of the only persona 
 who to his knowledge had any interest in 
 opposing the issue. 
 
 When the certificate in question was 
 issued, the District Registrar was not 
 aware that other parties were interested 
 ■in the land who should have been served 
 with notice under section 49 of the Act, 
 and this was error in point of fact suffi- 
 cient with the error in law to warrant 
 an order for cancellation. Re Buchanan, 
 12 M.R. 612. 
 
 3. Evidence of Intestacy — Power of 
 personal representative. 
 
 A mortgagor of lands died intestate. 
 His administrator released the equity 
 of redemption to the mortgagee, who 
 applied for a certificate of title. The 
 land had not .previously been brought 
 under the provisions of the Act. 
 
 Held, 1. That production ot letters 
 of adrainistration was not sufficient 
 proof of the death intestate. 
 
 2. That the administrator had no. 
 power to release the equity of redemption, 
 because the property had not theretofore 
 been brought under the provisions of 
 the Act, and, even in case of land under 
 the Act, a personal representative cannot 
 convey until he has been registered as 
 owner. Re Lewis, 5 M.R. 44. 
 
 4. Foreign corporation — Company — 
 Provincial license to hold real estate. 
 
 Certain property having been brought 
 under The Real Property Act, a certi- 
 ficate of title was issued to the C.P.R. 
 Co. The Company had not taken out 
 a Provincial license, and desired to 
 transfer a part of the property. 
 
 Held, that the question was settled 
 when the certificate of title issued, and 
 could not now be raised. Re C.P.R., 
 Re Douglas Lots, 6 M.R. 598. 
 
1021 
 
 REAL PROPERTY LIMITATION ACT. 
 
 1022 
 
 6. Probate. 
 
 Held, before executors can apply for 
 registration as owners of the testator's 
 land they must prove the will in the 
 Surrogate Court. Re Bannerman, 2 M.R. 
 377. 
 
 6. Removal from files of document 
 unproperly pladed in Registrar- Gen- 
 eral's oSice. 
 
 A document drawn up as for regis- 
 tration under the Mechanic's Lien Act 
 was filed in the Registrar-General's office. 
 Upon an appUcation to remove it from 
 the files, 
 
 Held, that the Court had no power to 
 order its removal. But, as it was im- 
 properly placed there, the appMcation was 
 refused without costs. GaU v. Kelly, 5 
 M.R. 224. 
 
 7. Unpatented lands. 
 
 Held, 1. By section 28 of the Real 
 Property Act of 1885, lands, " when 
 alienated " by the Crown, " shall be 
 . subject to the provisions of this Act." 
 The word " alienated " means completely 
 alienated — that is by patent. 
 
 2. Lands unalienated, by patent, on 
 the 1st July, 1885, remain under the old 
 law until brought under the provisions 
 of the Act. 
 
 3. Lands brought under the Act be- 
 come chattels real for the purpose of 
 devolution at death, but are lands in 
 other respects, and are not exigible under 
 fi. fa. goods. 
 
 4. A person entitled to a patent for 
 a homestead, or pre-emption, having 
 received a certificate of recommendation 
 for patent, countersigned by the Com- 
 missioner of Dominion Lands, may bring 
 such lands under the operation of the 
 Real Property Act, 1885. Taylor, J., diss. 
 
 5. After application under the Act no 
 deeds can be registered in, the county 
 registry offices. 
 
 6. Conveyances of lands, patented 
 after the 1st July, 1885, in the statutory 
 short form may be treated as substan- 
 tially in conformity with the forms given 
 in the Act. Be Irish, 2 M.R., 361. 
 
 8. Withdrawal of application — Effect 
 of — Rights of caveator — Jurisdiction of 
 Court — Non-suit — Costs. 
 
 A. made an application to bring certain 
 lands under The Real Property Act. 
 C. filed a caveat, which he followed up 
 with a petition. Upon the petition 
 coming on for hearing, an issue was 
 
 directed in which A. was made plaintiff. 
 A. claimed under a tax sale deed. On 
 the trial of the issue a non-suit was 
 entered. The . Full Court afterwards 
 dismissed an appMcation to set aside 
 the non-suit. The petition was then 
 brought on for hearing again, when it 
 appeared that A. had withdrawn his 
 appUcation for a certificate of title. 
 
 Held, that the appUcation was the 
 foundation of the proceedings in court, 
 and when it was withdrawn the juris- 
 diction of the Coiut was at an end, 
 otherwise than to order the caveatee 
 to pay the costs of the proceedings, 
 Campbell v. AUoway, 8 M.R. 224. 
 
 Sse Affidavit. 
 
 — Amendment, 8. 
 
 — Dominion Lands Act, 3. 
 
 — Evidence, 3, 11. 
 
 — Indians, 1. 
 
 — MoKTGAGOR AND MoETGAGEB, I, 
 
 III, 2, IV, 2, 4; 
 
 — Pleading, XI, 1. ' 
 
 — Phodtjction of Docdments, 10. 
 
 REAL PROPERTY LIMITATION ACT 
 
 1. Action for damages for breach 
 of covenant in agreement for sale 
 of land — Distinction between covenant 
 that there ere no incumbrances and covenant 
 to indemnify against incumbrances — Meas- 
 ure of damages for breach of such covenants. 
 
 1. A claim for damages for breach of 
 a covenant against incumbiances on land 
 is not a claim " to recover any sum of 
 money secured by any mortgage, judg- 
 ment or Uen, or otherwise charged upon 
 or palyable out of any land or rent " 
 within the meaning of section 24 of The 
 Real Property Limitation Act, R.S.M. 
 1902, c. 100, and an action to recover 
 such damages is therefore not barred 
 under that section by the lapse of ten 
 years. 
 
 Re Powers, (1885) 30 Ch. D. 291, 
 foUowed. Sutton v. Sutton, (1883) 22 
 Ch. D. 511, and Fearnside v. Flint, (1883) 
 22 Ch. D. 579, distinguished. 
 
 2. Where the covenant for the breach 
 of which an action is brought is one 
 against incumbrances, the plaintiff is 
 not entitled to recover as damages the 
 amount of all incumbrances, but only 
 such as have been actually enforced, 
 though it would be otherwise if the 
 covenant had been that the land was 
 free from incumbrances. 
 
1023 
 
 REAL PROPERTY LIMITATION ACT. 
 
 1024 
 
 The defendant covenanted that he 
 would give the plaintifi a deed clear of 
 all incumbrances except a mortKage of 
 $1,000. 
 
 Held, that the plaintiff's damages 
 should be limited to the excess of the 
 mortgagee's claim over $1,000, notwith- 
 standing there were at the time registered 
 judgments against the land for further 
 sums of money. WUson v. Graham, 16 
 M.R. 101. 
 
 2. Payment on account of judg- 
 ment — Assignment in trust — Limitation 
 of actions. 
 
 On the application of a judgment 
 creditor for leave to issue execution 
 upon a judgment recovered more than 
 ten years before. 
 
 Held, following Harlock v. Ashberry, 
 19 Ch. D. 539, that a payment to the 
 plaintiff by an assignee in trust for 
 creditors of the judgment debtor, under 
 a deed containing the usual provisions, 
 made before the date of the judgment 
 was not sufficient to take the case out 
 of the statute, section 24 of The Real 
 Property Limitation Act, R.S.M., c. 89, 
 although such payment was made within 
 ten years before the apphcation, and that 
 leave to issue execution upon such judg- 
 ment should be refused. McKenzie v. 
 Fletcher, 11 M.R. 540. 
 
 3. Possession — Mortgage. 
 
 The Real Property Limitation Act, 
 R.S.M., c. 89, does not begin to run 
 against a mortgagee of land in a, state of 
 nature until actual possession is taken 
 by some person not claiming under him. 
 
 Smith V. Lloyd, 9 Ex. 562 ; Agency 
 Company v. Short, 13 A.C. 793, and 
 Delaney v. C.P.R., 21 O.R. 11, foUowed. 
 
 Doe dem. McLean v. Fish, 5 U.C.R. 
 295, dissented from. Bucknam v. Stewart, 
 11 M.R. 625. 
 
 4. Possession — Evidence .required to 
 prove adverse possession — Claim set up 
 by wife living with husband — Amendment 
 of issue under Real Property Act, R.S.M. 
 1902, c. 148. 
 
 1. A party asserting a title to land by 
 adverse possession should prove it most 
 clearly and, although there is no statutory 
 requirement that the evidence of such 
 party and members of his family must 
 be corroborated, it would be unsafe, 
 unless such evidence appears to be correct 
 beyond reasonable doubt, to hold that a 
 
 title by possession ha^ been gained in 
 the absence of strong additional evidence 
 by disinterested witnesses. 
 
 2. When a husband and wife are living 
 together, the possession of any property 
 on which they are living or which is 
 occupied by them must ordinarily be 
 attributed to the husband as the head 
 of the family, and the wife cannot acquire 
 title to the property for herself by length 
 of possession under The Real Property 
 Limitation Act, R.S.M. 1902, c. 100. 
 
 3. Permission should not be given, 
 even if the Judge has power to allow it, 
 to amend an issue under the Real Property 
 Act, R.S.M. 1902, c. 148, between a 
 married woman claiming by such possess- 
 ion and the holder of the paper title, by 
 setting up that her husband had ac- 
 quired such title and given the plaintifi 
 a quit claim deed of the property, for 
 no one claiming a title by length of ad- 
 verse possession is entitled to any such 
 indulgence froln the Court. 
 
 Sanders v. Sanders, (1881) 19 Ch. D. 
 373, distinguished. Callaway v. Piatt, 
 17 M.R. 485. 
 
 6. Retrospective statute. 
 
 Although The Real Property Limit- 
 ation Act, R.S.M. c. 89, passed in 1883, 
 did not commence and take effect until 
 1st January, 1885, yet it appUes to rights 
 and causes of action which existed or 
 accrued before as well as after the last 
 mentioned date. 
 
 Plaintiff's claim was for foreclosure 
 of a mortgage which fell due on 1st 
 January, 1884 ; no sum had been paid 
 on account of principal or interest, and 
 the mortgagor and his heirs continued 
 in possession up to the filing of the bill 
 in March, 1894. 
 
 Held, following Doe d. Bennett v. 
 Turner, 7 M. & W. 226, and Doe d. Jukes 
 V. Sumner, .14 M. & W. 39, that the 
 plaintiff's claim was barred either by 
 section 4 or section 24 of the statute. 
 Stover V. Marchand, 10 M.R. 322. 
 
 6. Right of action, when accrued— 
 
 Onus of proof — Evidence of default in 
 payment — Estoppel. 
 
 To an action on a covenant in a mort- 
 gage dated 2nd January, 1883, for pay- 
 ment of $2400.00 on 1st January, 1886, 
 with interest half yearly, the defendant 
 among other defences pleaded the Statute 
 of Limitations and the plaintiff joined 
 
1025 
 
 REASONABLE AND PROBABLE CAUSE. 
 
 1025 
 
 The mortgage contained the usual 
 proviso that on default of payment of 
 interest the principal should become 
 payable. At the trial the plaintiffs put 
 in evidence their mortgage deed and the 
 defendant gave no evidence. • 
 
 Held, following Reeves v. Butcherf 
 [1891] 2 Q.B. 509, and Hemp v. Garland, 
 4 Q.B, 519, that the statute began to 
 run from the time the first default in 
 payment of interest was made, since 
 the right of action then accrued to the 
 plaintiffs ; but that the onus lay upon 
 defendant to piove that default was 
 made earlier than the time fixed for 
 payment of principal, and, there being 
 no evidence of this, the issue was decided 
 in favor of the plaintiffs. 
 
 The defendant also pleaded that 
 plaintiffs were not a body corporate or 
 entitled to sue in this Province or to 
 take mortgages by said name and style. 
 
 Held, that this defence was not open 
 to defendant, for a man oaimot set up 
 the incapacity of the party with whom 
 he contracted in bar of an action' by 
 that party for breach of the contract. 
 Manitoba Mortgage <& Inv. Co. v. Daly, 
 10 M.R. 425. 
 
 7. Sale of land for taxes — Limitation 
 of actions — Mortgagor and mortgagee — 
 Foreclosure — Tax sale — Assessment Act, 
 s. 194r-55 Vic., u. 26, s. 8, M. (1892). 
 
 The surplus proceeds of land sold 
 for municipal faxes in 1888, paid to the 
 treasurer in November, 1890, were claimed 
 in April, 1896, by the holder of a mortgage 
 on the land, and also by the- assignee of 
 the equity of redemption. Judgment 
 against the mortgagor had been obtained 
 upon the covenant contained in the 
 mortgage and execution placed in the 
 sheriff's hands. The holder of the mort- 
 gage had in 1887 obtained a final order 
 of foreclosure and had afterwards re- 
 newed the execution issued in the suit 
 upon the covenant. It was contended 
 by the assignee of the equity of redemption 
 that all rights under the mortgage were 
 barred by The Real Property Limitation 
 Act, R.S.M., c. 89, s. 4, as more than ten 
 years had elapsed frtan the time when 
 the principal money secured by the 
 mortgage fell due, also that the renewal 
 of the execution opened up the fore- 
 closure, and that the foreclosure action 
 did not interfere with the running of 
 the statute in his favor. 
 
 He W, that, at the time of the appU- 
 cation to the District Registrar, the holder 
 of the mortgage had not lost his right 
 to recover' thq land as against the holder 
 of the equity of redemption or to continue 
 successfully the suit for such recovery 
 which was pending when the money in 
 question was ' paid to the municipal 
 treasurer, and that consequently he was 
 still entitled to such money, being the 
 proceeds of the land in question. 
 
 Quoere, whether s. 194 of The Assess- 
 ment Act, as amended by 55 Vic, c. 26, 
 s. 8, giving the right to apply for the 
 money to the person who, at the expir- 
 ation of the time for redemption from 
 the tax sale, held an incumbrance on 
 the land, does not furnish a new point of 
 departure and operate to bring to an end 
 the running of the period fixed by the 
 Statute of Limitations. Re Bain and 
 Chambers, 11 M.R. 550. 
 
 8. Sale of land for taxes — Right of 
 municipality to sell after ten years. 
 
 1. Statutes of Limitation apply to 
 municipal and other corporations as well 
 as to persons. 
 
 Hornsey Local Board v. Monarch, etc.,' 
 Society, (1890) 24 Q.B.D. 1, followed. 
 
 2. Section 24 of The Real Property 
 Limitation Act, R.S.M. 1902, c. 100, 
 apphes to proceedings talren by a muni- 
 cipality to sell lands for taxes which are 
 a lien or charge on the land, and the 
 municipality will be restrained by in- 
 junction from taking such proceedings 
 after the lapse of ten years from the time 
 when the taxes fell due. 
 
 Neil V. Almmd, (1899) 29 O.R. 63, amd 
 McDonald v. Grundy, (1904) 8 O.L.R. 
 113, followed. 
 
 3. The plaintiff is also entitled, .under 
 section 17 of the Act, to a declaration 
 that neither the levy of taxes nor the rate 
 remains any longer a lien or charge on 
 the land. Royce v. Macdonald, 19 M.R. 
 191. 
 
 see moktgagor and mortgagee, vi, 15, 
 — Rectification of Deed. 
 
 REASONABLE AND PROBABLE 
 CAUSE. 
 
 S&e Pleading, X, 7. 
 
1027 
 
 REASONABLE TIME. 
 
 1028 
 
 REASONABLE TIME. 
 
 See Banks and Banking, 6. 
 
 — Bills and Notes, X, 7. 
 
 — Contract, I, 2. 
 
 — Railways, H, 2;. Ill, 3. 
 
 — Vendor and Purchaser, IV, 2, 8, 9; 
 
 VII, 10. 
 
 REBUTTAL OF EVIDENCE. 
 
 See Evidence. 
 — Libel, 5. 
 
 RECEIVER. 
 
 Accounts — Municipality — Liability of 
 receiver for loss of interest by non-deposit 
 in bank of moneys collected'. 
 
 The receiver of a town municipality 
 will be responsible to the corporation for 
 loss of interest occasioned by his neglect 
 to deposit in the bank moneys collected 
 by him for the town. Tovm of Emerson 
 V. Wright, 5 W.L.R. 365. 
 
 See Equitable Execution. 
 
 — Garnishment, V, 5. 
 
 — Mortgagor and Mortgagee, VI, 13. 
 
 — Practice, XXVIII, 20, 22. 
 
 — ■ Private International Law. 
 — • Production of Documents, 15. 
 
 — Railways, X. 
 
 RECEIVING STOLEN GOODS. 
 
 See Conviction, 1. 
 
 — Criminal Law, XVII, 17. 
 
 RECITAL. 
 
 See Indemnity, 4. 
 
 RECOGNIZANCE. 
 
 See Election Petition, VII; IX, 2. 
 -^ Summary Convictiow. 
 
 RECOGNIZANCE OF BAIL. 
 
 See Criminal Law, XVII, 14. 
 
 RECOMMENDATION FOR PATENT. 
 
 See Homestead, 2, 3, 5. 
 
 — Real Property Act, V, 8. 
 
 — Registered Judgment, 4. 
 
 RECOUNT OF BALLOTS. 
 
 See Dominion Elections Act. 
 
 — Election Petition, VIII. 
 
 — Parliamentary Elections, 1. 
 
 RECOVERY BACK OF MONEY PAID. 
 
 See Bills and Notes, IV, 1. 
 
 — Contract, XV, 1. 
 
 — Duress, 2. 
 
 — Mistake, 2. 
 
 — Vendor and PufecaASER, II, 6, 
 
 IV, 5; V, 1; VI, 11; VII, 4, 7. 
 
 7; 
 
 RECTIFICATION OF AGREEMENT. 
 
 See Contract, IX, 1, 3. 
 
 RECTIFICATION OF CONTRACT. 
 
 See Contract, IX, 2, 4, 5. 
 
 — Covenants, 8. 
 
 RECTIFICATION OF DEED. 
 
 1. Mistake — Parties — Mortgagee en- 
 forcing mortgagor's remedies over — Evi- 
 dence of agency^Escrow— Trustee for sale 
 — Power to mortgage — Ratification — Indem- 
 nity of trustee — Appeal— Points open with- 
 out cross-appeal — Foreign executors— •'Part- 
 nership or co-partnership— Evidence os 
 against answer. 
 
 The defendant D. executed a moitgage 
 in favor of the plaintiff, in which was the 
 usual covenant for payment. He ap- 
 pended the wbrd " trustee " to his sig- 
 nature, thinking that thereby he pledged 
 himself not personally but in his re- 
 presentative capacity only. When sued 
 upon his covenant. 
 
 Held, per Dubuc, J., that there was 
 no mutual mistake, and therefore no 
 
1029 
 
 RECTIFICATION OF DEED. 
 
 1030 
 
 case for rectification, but a unilateral 
 mistake, and that of law only. 
 
 If mistake is positively denied by 
 any party to an instrument, parol evi- 
 dence is inadmissible to prove it. 
 
 In a suit upon a mortgage against a 
 trustee who gave it, the trustee in his 
 answer set up his trust, gave the names 
 of his cestuis que trustent, and submitted 
 they were necessary parties to the suit, 
 but asked no relief over against them. 
 The cestuis que trustent, having been 
 added, the plaintiff asked that their 
 liability to indemnify the trustee should 
 be enforced in the plaintiff's favor. 
 
 Held, that the plaintiff was so entitled. 
 
 A bond was executed by D. for V. as 
 his attorney. D. on examination . by 
 the plaintiff as to his authority said that 
 he had a power of attorney (not produced) 
 from V. and had acted for him in relation 
 to the matter in respect of which the bond 
 was given, for several months. 
 
 3eld, that D. was properly authorized 
 to execute the bond. 
 
 A number of persons interested in 
 certain land executed a bond as collateral 
 to a mortgage of the land given by their 
 trustee. B., one of these persons, ob- 
 tained the various signatures, some of 
 them upon the agreement that the bond 
 was not ■ to be delivered until all the 
 persons interested had executed it. B. 
 delivered the bond without obtaining all 
 the signatures, and the mortgagee upon 
 the faith of it advanced the money. 
 
 Held, that all the persons signing it 
 were liable on the bond. 
 
 A trustee for sale of land upon which 
 there was a mortgage executed a new 
 mortgage paying off the old one. 
 
 Held, that he had power to do so, 
 and that his cestuis que trustent were 
 bound to indemnify him. 
 
 M., one of the cestuis que trustent, 
 assigned his interest to C. previous to 
 the giving of the second mortgage. C. 
 thereafter attended meetings of the assoc- 
 iation and, paid two calls made by the 
 trustee, being thus known and accepted 
 as the assignee of the share. 
 
 Held, that the trustee was entitled to 
 no relief as against him. 
 
 Upon re-hearing Dobtic, J., remained 
 of the above opinion. 
 
 Per Taylor, C. J. When some of 
 the defendants re-hear, the whole case 
 is open as between them and the plaintiff ; 
 but the plaintiff can ask for no variation 
 of the decree as against the other de- 
 fendants unless he also re-hear£. 
 
 2. The cestuis que trustent of a mort- 
 gagor are not necessary parties to a bill 
 for sale, but they are not improper 
 parties. 
 
 3. Foreign executors who have not 
 proved the will in this Province do not 
 sufficiently represent the estate. 
 
 4. A trustee for the sale of an estate 
 has not power to mortgage. Acts of 
 ratification by the cestuis que trustent 
 discussed and held sufficient. 
 
 5. Whether a voluntary association of 
 persons formed for the purpose of buying 
 a piece of land with a view to resale is 
 a partnership, discussed. 
 
 6. Parol evidence of a single interested 
 witness not sufficient to set aside a deed. 
 The rule as to two witnesses to overcome 
 the answer doubted. 
 
 7. There is an implied agreement on 
 the part of the cestuis que trustent to in- 
 demnify the trustee against all loss 
 which may accrue in the proper execution 
 of the trust. But where there is an ex- 
 press agreement upon the subject none 
 can be implied. 
 
 8. Persons against whom the plaintiff's 
 debtor is entitled to rehef over should 
 not on that account be made partiete 
 to the bUl, and the plaintijff cannot 
 enforce such rehef in his own favor. It 
 is not all persons who have an interest 
 in the subject matter of the suit, but in 
 general those only who have an interest 
 in the object of the suit, who are ordinarily 
 required to be made parties. Balfour v. 
 Drummond, 9 C.L.T. Occ. N. 201. 
 
 2. Mistake — Description of land -^ 
 Inner and outer two miles of parish lot — ■ 
 Real Property Limitation Act — When right 
 of action on covenant for payment barred 
 — Possession — Occasional hay cuttings — ■ 
 Interest, rate of— Meaning of " liabilities " 
 in chapter 29 of 63 & 64 Vic. {D.)—What 
 arrears of interest recoverable in fore- 
 closure action. 
 
 Action for foreclosure of a mortgage by 
 defendant to plaintiffs of land described 
 as lots 19 and 20 of the Parish of Head- 
 ingly containing by admeasurement 418 
 acres more or less and for rectification 
 of the mortgage so as to make it cover 
 the outer two miles of said lots as well 
 as the inner, plaintiffs alleging that such 
 was the intention of the parties at the 
 time the , loan was made and' that the 
 outer two miles had been omitted by 
 mutual mistake. 
 
1031 
 
 RECTIFICATION OF INSTRUJ^IENTS. 
 
 1032 
 
 Held, that rectification as asked for 
 should be ordered on the following 
 grounds : — ■ 
 
 (1) Because the defendant, who was a 
 man of intelligence and good education, 
 had signed a mortgage giving the acreage 
 as 418 more or less, whereas without 
 the outer two miles the two lots only 
 contained 223.65 acres and with them 
 only 421.22 acres. 
 
 (2) The defendant had, three years 
 .after the date of the mortgage, asked, 
 the plaintiffs to discharge it as against 
 the right of way of a railway running to 
 his knoVledge only through the outer 
 
 ,two miles of the lots, and had arranged 
 that the price of such right of way should 
 be- paid by the railway company to the 
 plaintijBEs in reduction of the mortgage 
 debt. 
 
 Defendant had left the land in 1892, 
 seven years after the last payment on 
 account of the mortgage, and had never 
 paid or attempted to pay any taxes on 
 it since .those for 1887, after which the 
 plaintiffs paid aU the taxes. 
 
 The mortgage contained the usual 
 provisions for quiet possession to the 
 mortgagees on default and for possession 
 by the mortgagor until default. 
 
 Held, following Buchnam v. Stewart, 
 (1897) 11 M.R. 625, and Trustees, &e. Co. 
 v. ShoH, (1888) 13 A.C. 793, that de- 
 fendant had not been in actual adverse 
 possession for a sufficient length of time 
 to acquire title under The Real Property 
 Limitation Act against the plaintiffs, 
 and that occasional entries upon the land 
 by a relative of the defendant for the 
 purpose of cutting hay, for several years 
 after the defendant had left the land 
 vacant, had not the effect of continuing 
 his actual possession beypnd that time. 
 
 The principal of the mortgage fell due 
 on 25th May, 1884, and it was provided 
 that interest at the rate of eight per 
 cent, per annum was to be paid half 
 yearly .... till the whole of the principal 
 should be paid. 
 
 Held, (1) Following Freehold Loan Co. 
 v. McLean, (1891) 8 M.R. 116, and Man. 
 & N.W. Loan Co. v. Barker, (1892) 8 
 M.R. 296, 'that interest after the, due 
 date was only recoverable as damages and 
 only at the statutory rate and only for 
 the six years prior to the commencement 
 of the action. 
 
 (2) "That, although 63 & 64 Vic. (D.), 
 c. 29, making five per cent, the legal 
 rate, provides that " the change in the 
 
 rate of interest in this Act shall no* 
 apply to liabilities existing at the time 
 of the passing of this Act," the interest 
 for that part of the six years since the 
 passing of, that Act should only be allowed 
 at the rate of five per cent per annum, 
 for the word " liabilities " in that Act 
 does not refer to the principal debt but 
 only to the obligation to pay interest as 
 damages. 16 Am. cfc Eng. Encyc. of 
 Law, 1061 & 1062, and cases there cited 
 followed. 
 
 (3) It is only in an action for i-edemp- 
 tion, or one in which the question of 
 the number of years arrears of interest 
 to be allowed is to be treated as if the 
 action were one for redemption, that 
 more than six - years arrears are allowed 
 on the principle that he who comes into 
 equity must do equity. 
 
 Dingle v. Coppen, [1899] 1 Ch. 726, 
 and In re Lloyd, [1903] 1 Ch. 385, dis- 
 tinguishedl 
 
 Held, also, that section 24 of The Real 
 Property Limitation Act barred the right 
 of the plaintiffs to a personal order 
 against the defendant for jiayment of 
 the mortgage debt after ten years from 
 the last payment. British Canadian Loan 
 and Agency Co. v. Farmer, 15 M.R. 593. 
 
 EECTIFICATION OF INSTRUMENTS. 
 
 See Landlord and Tenant, IV, 2. 
 
 RE-DEMISE. 
 
 See Master and Servant, II. 
 
 REDEMPTION. 
 
 See Breach of Trust. 
 
 — Mortgagor and Mortgagee, I, 2, 3; 
 
 IV; VI, 9, 10. 
 
 — Pauties to Action, T, 
 
 — Registered Judgment, 5. 
 
 • — Vendor and Purchaser, VII, 6. 
 
 REDEMPTION FROM TAX SALE. 
 
 See Sale op Land fob Taxes, X, 9. 
 
1033 
 
 REFEREE IN CHAMBERS, JURISDICTION OF. 
 
 1034 
 
 REFEREE IN CHAMBERS, JURIS- 
 DICTION OF. 
 
 Queen's Bench Act, 1896, Rules 
 26 and 804 — Sale of land under registered 
 certificate of judgment — " Now." 
 
 Held, that Rule 26 of The Queen's 
 Bench Act, 1895, which empowered the 
 Referee in Chambers " to do such things 
 
 and exercise all such authority 
 
 and jurisdiction as are now done 
 
 or exercised by him or by any 
 
 Judge of the Coxurt sitting in Chambers," 
 with certain specified exceptions, did 
 not authorize the Referee to make any 
 order for the sale of land "under Rule 804, 
 and, that it applied only to the powers, 
 authority and jurisdiction which at the 
 time of the coming into force of the Act 
 and Rules, but independently thereof, 
 a Judge in Chambers had. Watson v. 
 Dandy, 12 M.R. 175. 
 
 See Administratoe Pendente' Lite, 1. 
 
 — Amendment, 3. 
 
 — ■ Evidence on Commission, 9. 
 
 — Interpleader, IV; 3; VIII, 5; IX, 3. 
 
 — Jurisdiction, 5. 
 
 — JuRT Trial, I, 10. 
 
 — Practice, XXVIII, 24. 
 
 — Production of Documents, 5. 
 
 — Security for Costs, I, 2. 
 
 — Summary Judgment, I, 2. 
 
 REFERENCE TO MASTER. 
 
 See Costs, XIII, 22. 
 
 — Practice, XXVIII, 13. 
 
 — Winding-up, II, 4. 
 
 REFUSAL TO ACCEPT. 
 
 See Sale of Goods, III. 
 
 REGISTERED DEED. 
 
 See Pleading, XII, 2. 
 
 REGISTERED JUDGMENT. 
 
 1. Assignment of certificate — Re- 
 medies by issuing writs of execution and 
 
 registering certificate of judgment — Certi- 
 ficate of judgment. 
 
 Bill by the assignee of a registered 
 judgment, for sale of lands. Upon 
 demurrer, — 
 
 Held, 1. The judgment having been 
 assigned, it was immaterial that the 
 judgment remained registered in the 
 name of the original creditor. 
 
 2. That an assignee of a judgment may 
 file a bill to enforce it. 
 
 3. That the issue of execution upon 
 the judgment does not prevent pro- 
 ceedings by bUl. Arnold v. McLaren, 
 1 M.R. 313. 
 
 2. County Covart— Exemptions — Resi- 
 dence commenced after judgment registered 
 — Dissolution of partnership — Registra- 
 tion — Continuance of liability — Costs. 
 
 A County Cowt judgment for less 
 than $100 registered before the County 
 Courts Act of 1887, and re-registered 
 under section 135 of that Act before the 
 1st November, 1887, was held valid, 
 and could be enforced by bill in equity . 
 After a judgment was registered the 
 judgment debtor took up his residence 
 in a house which he owned, and claimed 
 its exemption. 
 
 Held, that it was not exempt. 
 
 Plaintiff's claim being small, his costs 
 were fixed at $50. Burt v. Clarke, 5 M.R. 
 150. 
 
 3. County Covxt— Queen's Bench Act, 
 1895, RuUs S04r-6—Sale cf land under 
 judgment. 
 
 The provisions of Rules 804-6 of the 
 Queen's Bench Act, 1895, do not authorize 
 p'roceedings to be taken in a summary 
 way under them for the purpose of real- 
 izing a registered judgment of a County 
 Court by sale of land, such rules being 
 applicable only to jiidgments in the 
 Queen's Bench. Proctor v. Parker, 11 
 M.R. 485. 
 
 See now, however, Rule 744 of The 
 King's Bench Act, R.S.M. 1902, c. 40. 
 
 4. Form, of certificate — Agreement to 
 assign homestead — Patent. 
 
 The omission by a registrar to endorse 
 upon an instrument registered the certi- 
 ficate prescribed by Con. Stat. Man., c. 
 60, s. 15, does not prevent the instrument 
 binding the lands. 
 
 A certificate of judgment was signed 
 by the deputy prothonotary and was under 
 the seal of the Court of Queen's Bench. 
 
1035 
 
 REGISTERED JUDGMENT 
 
 1036 
 
 Held, insufficient because the date of 
 the judgment was 18 October, 1883, 
 whereas the certificate referred to a 
 judgment of 18 October, 1884, (the num- 
 ber of the rdU not appearing upon the 
 certificate) and because the certificate 
 did not show that the judgment was 
 recovered in the Queen's Bench, 
 
 Under the 13th sub.-sec. of the 34th 
 sec. of 42 Vic, c. 31, homesteads cannot 
 be bound by executions in the sheriff's 
 hands prior to patent. 
 
 Since that Act a certificate of judgment 
 will bind the homestead of the defendant 
 immediately after recommendation for 
 patent. i 
 
 A registered judgment attaches upon 
 land acquired subsequent to its regis- 
 tration (per KiLLAM, J.). Harris v. 
 Rankin, 4 M.R. 115. 
 
 6. Lien of, under County Courts 
 Act, R.S.M. 1902, c. 38, s. 213, against 
 debtor's interest under agreement of 
 purchase of land — Purchase of land to 
 be paid for only by delivery of share of 
 crops — Relief against forfeiture — Cancel- 
 lation of agreement by vendor — Right of 
 redemption as between judgment creditor 
 of purchaser and vendor. 
 
 The binding effect of the registration 
 of a certificate of a County Covut judg- 
 ment against the lands of the judgment 
 debtor, under section 213 of the County 
 Courts Act, R,S.M. 1902, c. 38, is not 
 neaily so extensive as in the case of a 
 registered judgment of the Court of 
 King's Bench under The Judgments 
 Act, R.S.M. 1902, c. 91 ; and, when the 
 only interest or estate of the judgment 
 debtor in the land in question is under an 
 agreement of purchase providing for 
 payment by delivery of, one half of each 
 year's crop and in no other way, the 
 judgment creditor, having only a re- 
 gistered County Court judgment, does 
 not acquire all the rights or position of 
 an assignee of the' benefits of the agree- 
 ment, and is not necessarily entitled to 
 notice of a cancellation of the agreement 
 by the vendor in pursuance of a stipu- 
 lation contained therein, or to insist on 
 taking the place of the purchaser in all 
 respects or to redeem the vendor, nor is 
 he entitled to an order for the sale of the 
 land after such cancellation. 
 
 When the vendor in such a case- de- 
 clares the agreement forfeited and can- 
 cels same by notice under one of its 
 terms, whether or not the purchaser 
 could get relief in equity against the 
 
 forfeiture, the judgment creditor has no 
 standing to claim such reMef. McGregor 
 V. Withersy 15 M.R. 434. 
 
 6. Multifariousness — Exemptions — 
 Bill to realize registered judgment. 
 
 The plaintiff had a registered judgment 
 against five defendants. Upon a bUl 
 filed to obtain a sale of lands held by each 
 ■separately from the others — 
 
 Held, 1. That the bill was not multi- 
 farious. 
 
 2. That no personal order for payment 
 could be made. Real Estate v. Moles- 
 worth, 3 Man. L.R. 116, followed. 
 
 3. That a bill and not a petition in 
 the old suit was the proper proceeding. 
 
 4. Such a suit need not be preceded 
 by any proceeding upon execution or 
 otherwise. 
 
 5. Such a bill should show that the 
 lands are not exempt from seizure. Fonseca 
 V. MacDonald, 3 M.R. 413. 
 
 Distingiiished, Keewatin Lumber Co. 
 V. ■FFiscA,.8M.R. 365 
 
 7. Retrospective Act — 
 
 County Court judgment — 49 Vic, c. 35. 
 
 No statute prior to 49 Vic, c. 35, 
 made any lands exempt from a judgment 
 registered under the County Coiurts 
 Act. 
 
 A judgment registered before the 49 
 Vic. may be enforced after its passage. 
 Hopkins v. Beckel, 4 M.R. 408. 
 
 8. Revivor of judgment — Trusts 
 under Real Propeity Act — Exemption — • 
 Certificate of judgment — Parties. 
 
 In 1884 the plaintiffs recovered a 
 judgment for 1682.76 against A. M. and 
 B. Certain lands in the City of Winnipeg 
 were owned by Mrs. G. M., subject to 
 two mortgages. Mrs. G. M. died in- 
 testate and the lands were afterwards 
 sold under the mortgages ajid bought in 
 in the name of A. C. M. A portion of the 
 purchase money was paid, and mortgages 
 on portions ofi the lands given for the 
 remainder. The purchase money paid 
 was the money of G. M., father of A. M. 
 and A. C. M., and the learned Judge at 
 the hearing found that the purchase 
 was really made by him, A. C. M. being 
 merely a trustee. The evidence showed 
 that G. M. intended the lands should 
 be used as a home for A. M. and his wife. 
 The property waSj at the time the bill 
 was filed, and for some time previously, 
 occupied by A. M. as his residence, but 
 
1037 
 
 REGISTRAR OF COURT— POWERS OF. 
 
 1038 
 
 he never paid any rent for it. A. C. M. 
 had never occupied or used any portion 
 of it or asserted any claim over it., A. 
 C. M. in 1889 obtained a certificate of 
 title under The Real Property Act. 
 Afterwards, at an election trial in which 
 it was sought to unseat A. M., who had 
 been elected as alderman, on the ground 
 that he did not possess sufficient pro- 
 perty, A. C. M. endorsed on his certi- 
 ficate of title a declaration that he held 
 those lands in trust for A. M. After 
 this declaration, and after B.'s death, 
 the judgment being still unsatisfied, the 
 plaintiffs registered a certificate of judg- 
 ment and filed a bill thereon to have the 
 lands sold, alleging that they were held 
 in trust by A. O. M. for A. M. In his 
 answer A. M. stated that aU the lands 
 except Lot 1 were exempt from seizure, 
 as he actually hved thereon, and parts 
 of Lots 3 and 4 were subject to a mort- 
 gage for $2,000. A. C. M. in his answer, 
 and at the hearing, alleged that he had 
 included Lot 1 in the declaration of 
 trust by error. 
 
 Held, 1. That a certificate of judg- 
 ment could be issued and registered 
 without a revivor of the judgment, or 
 a suggestion of the death of B., but it 
 could only be enforced against the lands 
 of the survivor. ' 
 
 2. That the personal representative 
 of the deceased was not a necessary party 
 to the bill. 
 
 3. That, where lands under The Real 
 Property Act are held in trust, a re- 
 gistered judgment against^ the cestui 
 que trust may be enforced against the 
 lands so held, and the trustee holder 
 of .the certificate of title compelled to 
 make the necessary transfer. 
 
 Re Massey & Gibson, 7 M.R. 172, 
 followed. 
 
 By the sub-section substituted by 49 
 Vic, c. 35, s. 3 (M. 1886), for the original 
 sub-section 11 of section 117 of The Ad- 
 ministration of Justice Act, 1885, " the 
 actual residence or home of any person 
 other than a farmer," is exempt from 
 seizure under execution, " provided the 
 same does not exceed the value of $1,500 ; 
 and, if the same does exceed the value of 
 $1,500, then it may be offered for sale," 
 &c. 49 Vic, c 35, s. 4 (M. 1886), makes 
 this exemption apply to proceedings in 
 equity to enforce a judgment. 
 
 Held, that when the property is mort- 
 gaged it is necessary that the equity of 
 redemption should be above the pre- 
 scribed value to make it chargeable with 
 
 a judgment debt. It is only the in- 
 terest of the debtor that is charged, not 
 the entire fee simpie. The land is only 
 to be sold if more than $1,500 be offered 
 for it, which cannot be expected if the 
 equity of redemption be not above that 
 value, and the onus of shewing the value 
 is upon the plaintiff. Ontario, Bank v. 
 McMicken, 7 M.R. 203. 
 
 See Devolution op Estates, 2, 
 
 — Evidence, 9. 
 
 ^- . Exemptions, 4, 7, 10. 
 
 — fratjdu1.ent conveyancb, 9, 10, 15, 
 
 19. 
 
 — Garnishment, VI, 2. 
 
 — Homestead, 2, 4, 5. 
 
 — Infant, 13. 
 
 — Pleading, IX, 1. 
 
 — Practice, XXVIII, 1. 
 
 — Real Property Act, I, 2. 
 
 — Referee in Chambers. 
 ■ — ■ Registry Act. 
 
 — Statutes, Construction of, 5, 
 
 REGISTRAR OF COURT— POWERS 
 OF. 
 
 See Practice, XXVIII, 13. 
 
 REGISTRATION OF DEED. 
 
 Priority — Quit claim deed — Notice — 
 Affidavit of execution. 
 
 A quit claim deed is within the Registry 
 Act, and by registration defeats a prior 
 unregistered grant of the interest of the 
 same grantor. 
 
 Registration is effectual without an 
 affidavit of execution by the grantee. 
 
 M. was entitled to a conveyance in 
 fee simple of the lands in question, upon 
 the payment of a small balance of pur- 
 chase money. Under these circumstances 
 he executed an assignment of his interest 
 in the land to A. Subsequently M. 
 executed a quit claim deed of the lands 
 to B. B. registered first. • B. had notice 
 that A. had been negotiating for the 
 purchase of the land, and that there had 
 been a verbal arrangement for a transfer 
 to A. He asked M. if he had given any 
 written agreement to A., but did not 
 inquire of A. himself. 
 
 Held, that there was not sufficient 
 proof of actual notice to defeat B.'s prior 
 registration. 
 
1039 
 
 REGISTRY ACT, 
 
 1040 
 
 Held, also, that in order to bring 
 abstinence from inquiry within the 
 category of actual notice, there must be 
 wilful abstinence and fraudulent deter- 
 mination not to be informed. Stark v. 
 Stephenson, 7 M.R. 381. 
 
 -See Assignment tor Benefit of Cred- 
 itors, 4. 
 
 — Deed of Land, 2. 
 
 — Equitable Assignment, 2. 
 
 — Estate Tail. 
 
 — Estoppel, 5. 
 
 ^- Rt)GisTRY Act, 2. 
 
 — Sale of Land fob Taxes, IX, 2. 
 
 REGISTRY ACT. 
 
 1. Actual notice. 
 
 H. J. B., on 24th December, 1873; con- 
 veyed a parcel of land to D., and on the 
 24th of September, 1874, conveyed the 
 same piece of land to M. D.'s convey- 
 ance was registered on 11th May, 1875, 
 and M-'s on 25th September, 1874. 
 
 M. was the "solicitor for H. J. B. on 
 the sale to D., and on the 5th of May, 
 1874, made the usual affidavit of the 
 executioJi of the deed, to D; 
 
 Held, that M. had actual notice of 
 D.'s deed at the "date of the affidavit 
 of execution. That such notice would 
 be assumed to have continued until 
 the date of M.'s deed. That it would 
 be no use for M. to say that it did not ; 
 and that his deed must be postponed to 
 D.'s.. 
 
 Held, that, under the Registry Act 
 then in force, 36 Vic, c. 18, priority of 
 registration did not apply to conveyances 
 registered before the issue of the patent. 
 Agnew v. Morphy, 1 M.R. 49. 
 
 2. Real Property Act, R.S.M. 1902, 
 
 C. 148,' S. 34 — Effect of filing deed after 
 application for certificate of title under 
 Real Property Act — Priority as between 
 inch deed and an unregistered prior con- 
 veyance. 
 
 The filing of a deed with an application 
 for a certificate of title under The Real 
 Property Act, as one of the evidences in 
 support of the title, does not constitute 
 a registration of the deed under The 
 Registry Act, R.S.M. 1902, c. 150, so 
 as to give it priority over a prior un^ 
 registered conveyance, although the prac- 
 tice in the Land Titles Office is to make 
 certain entries in the abstract book kept 
 
 under the old system and to give the 
 deed a number. 
 
 Farmers' & Traders' Loan Co. v. Conjdin, 
 (1884) 1 M.R. 181, and Benwick v. 
 Berryman, (1886) 3 M.R. 400, followed. 
 Be Stangtr and Mondor, 20 M.R. 280. 
 
 3. Unregistered prior charge -^ 56 
 
 Vic. (M.), c. 17—57 Vie. (M.), c. 14— Be- 
 gistered judgment — Priority. 
 
 The Master having allowed the plain- 
 tiffs' claim to priority for their charge 
 on defendant's land for the price, of 
 certain machinery given by an instru- 
 ment which, under 56 Vic, c. 17, could 
 not be registered, as against the sub- 
 sequent registered judgments of the 
 appellants ; 
 
 Held, notwithstanding the Statute 
 57 Vic, c, 14, and ss. 68, 69 and 72 of 
 the Registry Act, that the registration 
 of the judgments bound only the estate 
 or interest the debtor then had in the 
 lands which was subject to the charge 
 then existing in the plaintiffs' favor, 
 and that the Master was right in making 
 the appellants subsequent incumbrancers. 
 Eyre v. McDowell, [1861], 9 p.L.C. 619, 
 followed. 
 
 Miller v. Duggan, [1892] 21 S.C.R. 33, 
 distinguished. Cose v. Bartlelt, 12 M.R. 
 280. 
 
 REJECTION OF GOODS. 
 
 See Sale of Goods, II, 1; IV. 
 
 RELATOR. 
 
 See Information to Restrain Nuisance 
 
 RELEASE. 
 
 See Banks and Banking, 3. 
 
 — Evidence, 19. 
 
 — Joint Debtors. 
 
 — Pleading, VI, 1. 
 
 — Venoor and Pukchaseb, VII, 1. 
 
 RELEASE OF EQXnTY OF REDEMP- 
 TION. 
 
 Set Merger. 
 
 — Real Property Act, V, 3. 
 
1041 RELEASE OF SURETY. 
 
 RELEASE OF SURETY, RENT. 
 
 See Principal and StJRETY, 2, 4, 5, 6. See Sheriff, 2. 
 
 1042 
 
 RELEVANCY OF EVIDENCE. 
 
 RENT PAYABLE IN KIND. 
 
 See Examination for Discovery, 12, 13, See Landlord and Tenant, I, 5; IV, 2. 
 
 14. 
 ^ Examination of Judgment Debtor, ■" 
 
 13, 14. 
 
 REMAINDERMAN. 
 
 See Administration, 1. 
 
 RE-OPENING TRIAL. 
 
 See County Court, II, 5. 
 
 — Election Petition, VI, 2; X, 6. 
 
 — Evidence, 10, 13. 
 
 — New. Trial, 3. 
 
 REMANET. 
 
 See Practice, XV, 3, 
 
 REMEDIAL CLAUSE IN ACT. 
 
 See Fire Insurance, 3. 
 
 REMEDY OVER AGAINST THIRD 
 PARTY. 
 
 See Municipality, III, 1. 
 
 REMOTENESS OF DAMAGE. 
 
 See Negligence-, I, 5. 
 
 REMOVAL OF BUILDINGS. 
 
 See Injunction, III, 2. 
 
 REMOVAL OF LIQUIDATOR. 
 
 REMUNERATION. 
 
 See Executors and Administrators, 4. 
 
 — Trustees, 3. ■ 
 
 — Trustee and Cestui Que Trust, 2. 
 
 — Will, III, 6. 
 
 — Winding-up, II. 
 
 REPAIR OF ROADS AND BRIDGES. 
 
 See Municipality, IV. 
 
 — Negligence, IV, 3, 4. 
 
 — Nuisance, 3. 
 
 REPAIRS TO BUILDINGS. 
 
 See Municipality, I, 2. 
 
 REPEAL OF BY-LAW. 
 
 : Local Option By-Law, I, 1; VI, 4. 
 
 REPEAL OF STATUTES. 
 
 See Exemptions, 1. 
 
 — Sale of Land for Taxes, VI, 3. 
 
 REPLEVIN. 
 
 1. Action on replevin bond — 7m- 
 
 possHnlity of fulfilment of condition. 
 
 After the determination of a replevin 
 action, brought by S. against R., in 
 which R. was successful, R. distrained 
 the goods in question, fgr rent due by S., 
 and then sued S. upon the replevin bond, 
 for non-delivery of the goods. 
 
 Held, that the defendant could not 
 shield himself on the grpund of the im- 
 possibility of delivering to the plaintiff 
 that which the plaintiff had himself 
 taken. Robinson v. Scurry, X M.R. 257 
 
1043 
 
 REPLEVIN. 
 
 1044 
 
 2. Action on bond — Original action 
 still pending — Court of Assize. , 
 
 To an action upon a replevin bond for 
 failure to prosecute " with effect," the 
 defendant pleaded that the original 
 action was still pending and undeter- 
 mined. RepUcation, " that the suit re- 
 ferred, to in the bond mentioned in the 
 declaration herein was at and before 
 the commencement of this action deter- 
 mined in the manner following, that 
 is to say. The said suit was entered for 
 trial at the Sittings of Assize and Nisi 
 Prius of this Court m and for the Eastern 
 Judicial District of the Province of 
 Manitoba, beginning on the fourth day 
 of March in the year one thousand eight 
 hundred and eighty-four, and was on 
 the eighteenth day of June in the said 
 year brought on for trial before Mr. 
 Justice TAyLOE, the learned Judge then 
 holding the said Sittings, and the said 
 learned Judge thereupon decided and 
 determined that the said Court had no 
 jurisdiction over the said suit, and struck 
 the said suit out of the Ust of suits then 
 and there entered for trial at the said 
 Sittings, and declined to give judgment 
 therein." 
 
 Demurrer to the rephcation. 
 
 Held, by Kiixam, J., that the reph- 
 cation was bad, there being nothing to 
 show 'that the suit was determined by 
 the adjudication of the Court before 
 which it was in due course brought, or 
 that such Court or the Court in which 
 it was commenced had no jurisdiction 
 to entertain the suit. 
 
 Ihe Court gf Assize and Nisi Prius is 
 a Court distinct from the Court of Queen's 
 Bench. Conway v. Scott, 3 M.R. 557. 
 
 After the judgment in • this case as 
 reported in 3 M.R. at p. 557, was given, 
 the repUoatiOn demurred to was amended 
 by the addition of the words " and no 
 other judgment has been given therein." 
 
 The defendant again demurred. 
 
 Held, by Wallbkidge, C. J., that the 
 rephcation as so amended was good. 
 Conway v. Scott, 3 M.R. 636. 
 
 3. Action on bond — Pleading. 
 
 To an action upon a replevin bond 
 for not proceeding with effect, a plea 
 that the replevin action is still pending 
 
 is sufficient. 
 
 » 
 
 And a replication to such a plea, dis- 
 closing delay, is bad, unless the delay 
 itself has terminated the action. 
 
 The condition in a replevin bond to 
 prosecute with effect, is separate and 
 distinct from the condition to prosecute 
 without delay. Mcintosh v. Nickel, 4 
 M.R. 6%. 
 
 4. Action against sherifE— Tfni im- 
 properly issued. 
 
 To an action of trover against a sheriff 
 the defendant justified under a writ of 
 replevin. RepUcation that the writ was 
 " improperly and without any right or 
 authority whatever in that behgjf sued 
 and prosecuted out of the said court ; 
 and was not to recover goods wrongfully 
 distrained ; and afterwards, to wit on 
 the twenty-first day of AprU, 1884, the 
 said matters in the said writ contained 
 having been brought before the said 
 Court for adjudication, Mr. Justice 
 Taylor, then sitting in the said court for 
 the hearing of cases, determined that the 
 said Court had not jurisdiction to issue the 
 said writ of replevin in the said plea 
 mentioned, and to try the action conse- 
 quent thereon, and that the said writ 
 was of no force and effect whatever and 
 was absolutely null and void." 
 
 Rejoinder " that the said writ of 
 replevin was good and valid on its face, 
 and appeared to be regularly issued and 
 was signed by the proper official in that 
 behalf, and the defendant had, at the 
 time he received the same and at the time 
 of the execution thereof, no notice or 
 knowledge that the said writ was issued 
 improperly and without any legal author- 
 ity, and the said writ has not been set 
 aside, nor has any judgment of any kind 
 been entered in the said suit which was 
 commenced by the said writ of replevin." 
 
 Demurrer to the rejoinder. 
 
 Held, that the rejoinder was good. 
 
 If a writ be issued by a proper officer 
 and from the proper office for such a 
 writ in a proper case to issue from, it 
 is not wholly void, so far as the sheriff 
 who executes it is concerned. Beemer v. 
 Inkster, 3 M.R. 534. 
 
 6. Fixtures — Goods affixed to realty. 
 
 A writ was issued to recover certain 
 machinery in a planing mill. Plaintiffs 
 claimed the goods as vendors, under a 
 hire and sale receipt. Defendants claimed 
 property as part of the realty under a 
 mortgage from the purchaser under the 
 same receipt. On motion to set aside 
 I? he writ, 
 
1045 
 
 REPEESENTATION OR WARRANTY. 
 
 1046 
 
 Held, 1. That replevin would lie. 
 
 2. Upon the affidavits filed, that the 
 machinery was personalty. Wtiierovs En- 
 gine Works Co. V. Henry, 1 M.R. 36. 
 
 6. Land scrip issued under DomiU'- 
 ion Lands Act, R.S.C., c. 64, s. 90, 
 ss. (f), as re-enacted by 62 and 63 
 Vic, c. 16, s. 4 — Assignability of scrip — 
 — Illegality of contract. 
 
 Under an order of the Governor in 
 Council made pursuant to sub-section 
 if) of section 90 of The Dominion Lands 
 Act, R.S.C., c. 54, as re-enacted by 62 
 and 63 Vic, c. 16, s. 4, the defendant 
 Annie Battley became entitled to scrip 
 for land to be located by her. She sold 
 the right to the scrip to the plaintiff and 
 gave him an order on the Commissioner 
 for it. After delivery by the latter to 
 the plaiutifE, Mrs. Battley, knowing that 
 the scrip was in the plaintiff's possession, 
 deliberately assigned it to him for valu- 
 able consideration. She afterwards took 
 the scrip from the plaintiff and refused 
 to return it. 
 
 The Order in Council prohibited the 
 Commissioner from recognizing or ac- 
 cepting assignments of land scrips and 
 from delivering them to assignees. 
 
 Held, nevertheless, tjiat the contract 
 of sale of the scrip was vahd and that the 
 plaintiff was entitled to recover pos- 
 session of it in an action of replevin. 
 Wrighl V. Battley, 15 M.R. 322. 
 
 See Counts Court, I, 9; II, 1. 
 
 — Landlord and Tenant, I, 3. 
 
 — License to Take Possession of 
 
 Goods. 
 
 — Sale op Goods, II, 2. 
 
 — Parties to Action, 3. 
 
 — Practice, XXVIII, 23. 
 
 REPRESENTATION OR WARRANTY, 
 
 jSee Misrepresentation, V, 2. 
 
 REPUDIATION OF CONTRACT. 
 
 See Contract, X, 1, 2. 
 
 — Infant, 2. 
 
 — Sale of Goods, III, 1. 
 
 — Vendor and Purchaser, VII, 7. 
 
 RES GEST£:. 
 
 : Criminal Law, II, 1. 
 
 RES JUDICATA. 
 
 See Capias, 3. 
 
 — CoNvicTroN, 5. 
 
 — County Court, I, 10. 
 ■ — • Crown Patent, 6. 
 
 — Estoppel, 5. 
 
 — Injunction, I, 3. 
 
 — NuL TiBL Record, 1, 2. 
 
 — Practice, XX, C; XXVIII, 25. 
 
 — Real Property Act, IV, 1. 
 
 RE-SALE. 
 
 See Sale op Goods, III, 1. 
 
 RESCINDING AGREEMENT OF SALE 
 
 See Vendor and Purchaser. 
 
 RESCINDING ORDER. 
 
 See Interpleader, VIII, 5. 
 
 — Practice, XIV, 2; XXVIII, 24. 
 
 — Railways, I, 1. 
 
 RESCISSION OF CONTRACT. 
 
 See Bills and Notes, IV, 4; VIII, 1, 8. 
 
 — Contract, III, 1; VII, 2, 3; X, 2, 3; 
 
 XI, 1, 2. 
 
 — Evidence, 17, 28. 
 
 — Infant, 2. 
 
 — Limitation op Actions, 1. 
 
 — Misrepresentation, III; VI. 
 
 — Mistake, 1. 
 
 — Pleading, III, 2. 
 
 — Sale of Goods, IV, 1. 
 
 — Vendor and Purchaser, II, 3, 4: IV: 
 
 V, 1; VI, 3, 15. 
 
 RESERVATION IN DEED. 
 
 See Deed op Land, 1. 
 
1047 RESERVATION OF EXEMPTIONS. 
 
 RESERVATION OP EXEMPTIONS. RES IPSA LOQUITUR, 
 
 See Fbatjdulbnt Conveyance, 1. See Negmgbnce, III, 3. 
 
 1048 
 
 RESERVATION OF TRAVELLED 
 ROAD. 
 
 See Highway, 2. 
 
 RESISTING OFFICER. 
 
 See County Cotjrt, I, 9. 
 — Criminal Law, X, 2, 3. 
 
 RESIDENCE. 
 
 Public Schools Act, R.S.M. 1902, 
 c. 143, ss. 22, 175, 23Q~QualificaMon 
 
 of trustee. 
 
 The defendant, one of the trustees of 
 a rural school district, worked and slept 
 on his farm in the district, but his wife 
 and some of his children lived in the City 
 of Portage la, Prairie, where he visited 
 them at regular intervals. 
 
 Held, that he was not disqualified by 
 sections 22 and 175 of The PubMc 
 Schools Act, R.S.M. 1902, c. 143, to 
 be elected as a trustee of the district^ 
 as he might be deemed to be an actual 
 resident thereof, and, in any event, 
 the case was not within section 239, which 
 only applies when a trustee, after elec- 
 tion, ceases to be an actual resident. 
 . The definition of the word " residence " 
 in the Manitoba Election Act, as the 
 place where a man's wife and family 
 live in the case of a married man, is only 
 for the purposes of that Act, and should 
 not be applied in interpreting another 
 Act. 
 
 The word "residence" has a flexible 
 meaning and should be construed ac- 
 cording to the object and intent of the 
 particular legislation in which it may 
 be found. 
 
 Regina v. Fermanagh Justices, [1897] 
 2 I.R. per Gibson, J., at p. 563 ; Regina 
 V. Tyrone Justices, [1901] 2 I.R. per 
 Holmes, L. J., at p. 510, and Reg. ex rel 
 Forward v. Bartels, 7 C.P. 533, followed. 
 McCuaig v. Hinds, 11 W.L.R. 652. 
 
 See Security for Costs, IX, 2. 
 
 RESOLUTIONS OF MUNICIPAL 
 COUNCIL. 
 
 See Municipality, VII, 7, 8. 
 
 RESTITUTIO IN INTEGRUM. 
 
 ll_ Ste Bills and Notes, VIII, 1. 
 
 RESTITUTION. 
 
 See Contract, II, 1. 
 — Pleading, III, 2. 
 
 RESTRAINING WASTE. 
 
 See Fixtures, 8. 
 
 RESIGNATION OF OFFICE. 
 
 See Municipal Elections, 5. 
 
 RESTRAINT OF TRADE. 
 
 Covenant not to carry on named 
 business in certain territory duringr 
 specified term — Injunction — Evidence. 
 
 On transferring to the plaintiffs his 
 shares in a company dealing in auto- 
 mobiles and their accessories, the de- 
 fendant covenanted that he would not 
 engage in, carry on, be interested in, 
 have .money invested in or hold shares in 
 any business similar to or in competition 
 with the business carried on by the said 
 company in the Province of Manitoba, 
 Saskatchewan or Alberta for a period 
 of five years. 
 
 The company had power to engage 
 in other lines of business. 
 
 Held, (1) The covenant only extended 
 to the business actually carried on by the 
 company at the time of the signing of it 
 and was, therefore, not too wide to be 
 enforceable. 
 
1049 
 
 RESULTING TRUST. 
 
 1050 
 
 Maxim v. Nordenfell, [1893] 1 Ch. 630, 
 [1894] A.C. 535, distinguished. 
 
 (2). Extrinsic evidence might be given 
 to show what was the business carried 
 on by the company at the time. 
 
 (3) The plaintiffs were entitled to an 
 injunction in the terms .of the covenant 
 against the defendant who had accepted 
 the position of' manager for another 
 company carrying on, at Winnipeg, 
 the business of dealers in automobiles, 
 limited to dealing in automobiles. Kelly 
 V. McLaughlin, 21 M.R. 789. 
 
 See Conspiracy in Restraint of Trade. 
 
 — Contract, IV, 1; XV, W. 
 
 — Municipality, I, 7. 
 
 RESULTING TRUST. 
 
 See Deed of Settlement. 
 — Voldntaky Conveyance. 
 
 REVENUES AND EMBLEMENTS. 
 
 See Crown Lands, 2. 
 
 REVERSING JUDGE'S ORDER. 
 
 See Evidence on TDommission, 9.' 
 
 REVERSION. 
 
 See Landlord and Tenant, I, 6. 
 — Nuisance, 2. 
 
 REVIEW OF ORDER. 
 
 See Fraudulent Preference, VI, 3. 
 
 RESUMING POSSESSION OF GOODS. 
 
 See Sale, of Goods, VI, 4. 
 
 RE-TAKING POSSESSION. 
 
 iSee Limitation op Actions, 1. 
 
 RETENTION OF GOODS. 
 
 See Sale op Goods, IV, 4. 
 
 RETROSPECTIVE STATUTES. 
 
 See Growing Crops. 
 
 — Mechanic's juien. III, 1. 
 
 — Pleading, IX, 2. 
 
 — Practice, XXVIII, 1. 
 
 — Railways, V, 4. 
 
 — Real Property Limitation Act, 5. 
 
 — Registered Judgment, 7. 
 
 — Statutes — Construction of. 
 
 — Workmen's Compensation for In- 
 
 juries Act, 1. 
 
 REVIEW OF TAXING MASTER'S 
 REPORT. 
 
 See Solicitor and Client, II, 1. 
 
 REVISING OFFICER. 
 
 See Contempt op Court, 3. 
 
 REVISION OF VOTERS' LIST. 
 
 See Mandamus, 5. 
 
 REVIVOR. 
 
 See Practice, XXVIII, 26. 
 — Registered Judgment, 8. 
 
 REVOCATION. 
 
 See Assignment for Benefit op Cred- 
 itors, 4. 
 
 — LiPE Insurance, 5. 
 
 — Principal and Agent, II, E; V, 9. 
 
 RETURNING OFFICER. 
 
 See Municipal Elections, 2. 
 
 — Parliamentary Elections, 3. 
 
 REVOCATION OF AGENCY. 
 
 See Principal and Agent, II, E; V, 9. 
 
1051 
 
 REVOCATION OF LEGACY. 
 
 1052 
 
 REVOCATION OF LEGACY. 
 
 See WiLL^ n, 3. 
 
 RIGHT OF ACTION. 
 
 Action — Covenant of indemnity — As- 
 signment of — Sale subject to unpaid pur- 
 chase money — Liability of sub-purehaser — 
 Implied contract. 
 
 One Galbraith agreed in writing to 
 purchase certain lands from the plaintiff 
 and paid;$200 on account of the purchase 
 money. He afterwards transferred his 
 interest in the lands under the agreement 
 to the defendant by an assignment en- 
 dorsed thereon signed by himself, but 
 not by the defendant. The defendant 
 did not make any of Xhe payments re- 
 maining due to the plaintiff under the 
 agreement and Galbraith then assigned 
 to the plaintiff " all and every covenant, 
 agreement and obligation of the said 
 A. B. McClelland, of any and every 
 nature and 'kind whatsoever, whether 
 expressed in the assignment hereinbefore 
 mentioned to the said McClelland or 
 implied from any or all of the trans- 
 actions between them and also all obU- 
 gations both legal and equitable " of 
 the defendant. 
 
 Held, that, upon plaintiff adding 
 Galbraith as a party defendant with his 
 consent, for which leave was given, the 
 plaintiff was entitled under the assign- 
 ment from Galbraith to him to recover 
 from the defendant the amount remaining 
 due under the originaT agreement of sale 
 to Galbraith. 
 
 Moloney v. Campbell, (1897) 28 S.C.R. 
 228, and Cullin v. Binn, (1888) 5 M.R. 
 8, followed. -Brough v. McClelland, 18 
 M.R. 279. 
 
 See Assignment fok Benefit of Cbed- 
 
 ITOKS, 5. 
 
 — Chattei, Mortgage, II, 2. 
 
 — Chose jn Action, 6. 
 
 — Company, IV, 12. 
 
 — Ejectment, 3. 
 -^ Fences. 
 
 — Misebpbesentation, III,. 2. 
 
 — ■ MOBTGAGOB AND MORTGAGEE, I, 1. 
 
 — Municipality, HI, 2, 3, 4. 
 
 — Pleading, XI, 17. 
 
 — Public Parks Act. 
 
 — Railways, II, 1; V, 1, 6; VUI, 2; 
 
 XI, 1. 
 
 — Real Property Limitation Act, 6. 
 
 See Sale of Land fob Taxes, X, 5. 
 
 — Trespass. 
 
 — Set Off, 2. 
 
 — Vendor and Purchaser, III, 1. 
 
 — Warranty, 1, 
 
 — Workmen's Compensation fob In- 
 
 juries Act, 4. 
 
 RIGHT OF APPEAL IN CRIMINAL 
 MATTERS. 
 
 See Liquor License Act, 8. 
 
 RIGHT OF POSSESSION. 
 
 See Conditional Sale, 4. 
 
 RIGHT OF WAY. 
 
 See Way of Necessity. 
 
 RIGHT TO REPLY. 
 
 iSee Trial. 
 
 RIOT. 
 
 See Injunction, I, 2. 
 
 RIPAKIAN OWNER. 
 
 See Injunction, I, 5. 
 
 RIVER BED, OWNERSHIP OF 
 
 See Injunction, I, 5. 
 
 ROAD ALLOWANCE. 
 
 See Boundary Lines. 
 - Municipality, V, 1. 
 
 RULE AGAINST PERPETUITIES. 
 
 See Deed of Settlement. 
 
1053 
 
 RULE OF COURT. 
 
 1054 
 
 RULE OF COURT. 
 
 See Railway Commissioners fob Can- 
 ada, Board of. 
 
 SALE AFTER FORECLOSURE. 
 
 ■See MOHTGAGOB AND MORTGAGEE, V, 1. 
 
 SALE BY AUCTION. 
 
 See Sale of Land for Taxes, X, 3. 
 
 SALE BY THE COURT. 
 
 See Half Breed Lands Act, 3. 
 
 — Practice, XVIII, 2. 
 
 — Vendor and Purchaser, VII, 8. 
 
 SALE OF GOODS. 
 
 I. Bills of Sale and Chattel 
 
 Mortgage Act. 
 II. Property Passing. 
 
 III. Refusal to Accept. 
 
 IV. Rejection. 
 V. Warranty. 
 
 VI. Miscellaneous Cases. 
 
 I. Bills of Sale and Chattel 
 Mortgage Act. 
 
 1. Immediate delivery — Change of 
 possession. 
 
 Interpleader issue respecting the owner- 
 ship of certain horses seized in execution 
 against the defendant and claimed by his 
 mother. 
 
 Ob Jihe 2nd of October, 1894, a verbal 
 sale of the horses in question was made 
 to the claimant, and pait of the purchase 
 money was then paid, and the claimant 
 stated in her evidence that the horses 
 were " hers from the 2nd of October." 
 For the convenience of the claimant, 
 however, and at her request, the defend- 
 ant continued in actual possession of 
 the horses until the 12th of November 
 fallowing, when he Called upon the claim- 
 ant and told her that he was going away, 
 but had left everything all right, and 
 that a boy who had been in his employ- 
 ment could take care of everything ; and 
 
 thereafter the claimant, by her servants 
 remained in actual possession of the 
 horses. 
 
 The Judge at the trial found that the 
 sale was bona fide. The execution was 
 not issued until January, 1895. 
 
 Held, that the sale was good as against 
 the plaintiffs, notwithstanding the Bills 
 of Sale Act, R.S.M., c. 10, s. 2, and that 
 this case might be distinguished from 
 Jackson v. Bank of Nova Scotia, 9 M.R. 
 75, on the ground that here there was a 
 delivery by the vendor on the 12th of 
 November, and that what then took 
 place brought the case within the rule 
 laid down by Patterson, J., in Whiting v. 
 Hovey, 13 A.R. 14, that, although a 
 grantee could not by any act of his own 
 in seizing the goods, give himself a better 
 title than he had under his deed, yet the 
 grantor might, by making a dehvery 
 which would operate as a conveyance 
 of goods capable of passing at law by 
 delivery, effectually cure a prior de- 
 fective conveyance. Triist and Loan Co. 
 V. Wright ; Wright, Claimant, 11 M.R. 
 314. 
 
 2. Delivery — Agreement that purchaser 
 should bear any loss by fire, effect of. 
 
 B. agreed to deliver to defendant at 
 Carman 195 cords of wood to be taken 
 out of, two piles of wood containing 200 
 cords lying at another railway station 
 and received the consideiation therefor. 
 Before anything was done towards de- 
 livery of the wood or setting apart the 
 195 cords from the rest of the wood, B. 
 assigned to plaintiff for the benefit of 
 his creditors. 
 
 Held, that defendant had acquired no 
 title to the wood as against the plaintiff, 
 as section 3 of The BiUs of Sale and Chattel 
 Mortgage Act, R.S.M. 1902, c. 11, had 
 not been complied with 
 
 Held, also, that the defendant's agree- 
 ment to bear the loss if the wood should 
 be burned was not sufficient to vest the 
 title in him in the face of the other facts. 
 Haverson v. Smiih, 16 M.R. 204. 
 
 II. Propeety Passing. 
 
 1. Place of inspection — Acceptance 
 of part — Rejection of residue as not in 
 accordance with contract. 
 
 Contract for sale of butter then manu- 
 factured and also for all butter to be 
 manufactured during the season ; quality 
 to he " fine ; " delivery to be f .o.b. cars, 
 Birtle. Purchaser carried on business in 
 
1055 
 
 SALE OF GOODS. 
 
 1056 
 
 Winnipeg. No inspection took place 
 at time of contract. 
 
 Vendor shipped car load at purcliaser's 
 request to Winnipeg. Purchaser refused 
 to accept because of defect in quality, 
 Vendor re-sold and sued for difference 
 between contract price and amount 
 realized, i ' 
 
 Held (1) The agreement as to quality 
 was a condition of the contract. 
 
 (2) The property in the butter had not 
 
 (3) The place for inspection was Win- 
 nipeg. 
 
 (4) The purchaser's duty to accept 
 depended upon the quality of the butter. 
 
 (5) The fact that the purchaser had 
 accepted other car loads of "fine" 
 butter did not bind him to accept one 
 that was not. 
 
 Dyment v. Thompson, (1886) 9 O.R. 
 566, 12 A.R. 658, 13 S.C.R. 303, com- 
 mented on. 
 
 (6) The onus was on the vendor to 
 prove the quality of the butter. 
 
 (7) Such evidence could not be given 
 in rebuttal. Lewis v. Barre, 14 M.R. 32. 
 
 2. Sale or consignment — Replevin. 
 Defendant ordered certain goods 
 
 through plaintiffs' traveller. Plaintiffs on 
 12th December wrote defendant that 
 they would consign only, and not sell. 
 This letter was never received, but de- 
 fendant did receive a telegram as fol- 
 lows :—" Can only fill order forty off 
 hardware, forty and ten flatware, you 
 paying express, answer if satisfactory." 
 ' Defendant replied, " All right, send 
 goods at once." On the 16th, the goods 
 were shipped. On the same day plain- 
 tiffs wrote defendant that the goods 
 were consigned only and not sold, but 
 this letter was not mailed until the 
 18th, and was not received until after 
 the goods had been received and ac- 
 cepted. The invoice was headed " con- 
 signed to " the defendant. 
 
 Held, (Taylor, J., dissenting). That 
 there was a completed sale to the de- 
 fendant and that the property in the 
 goods had vested in him. Acme Silver 
 Co. V. Perrei, 4 M.R. 501. 
 
 3. Breach of contract — Non-delivery 
 — Ooods in storage — Failure of vendor to 
 deliver warehouse receipt — Absence of ac- 
 knowledgment by warehousemen of transfer 
 to vendee— Sale of Goods Act, sec. 29 (6) — 
 Sale of goods, by warehousemen for storage 
 
 charges to agent of vendee — Efect of — Dam- 
 ages. 
 
 The defendant, on the 26th November,. 
 1910, had a car-load of fish in storage, 
 and on that day. agreed to sell it to the 
 plaintiffs for |1,000 : of that sum, $130 
 was paid in cash ; $370 was to be paid by 
 payment of storage charges direct to 
 the storage company , and the balance 
 by a post-dated cheque, which was given- 
 by the plaintiffs to the defendant. The 
 defendant, in writing, agreed to deliver 
 to the plaintiffs " warehouse receipt 
 
 covering fish in storage sold to 
 
 them. Warehouse receipt covering goods 
 must be signed for in good order and 
 dehvered to the plaintiffs not later 
 than December 5, 1910." A warehouse 
 receipt had been issued by the storage 
 company to the defendant, containing 
 a condition that " the goods are to be 
 delivered only upon the surrender of 
 this receipt." The receipt was never 
 delivered to the plaintiffs. 
 
 Held, that the fact's brought the case 
 within the provision of clause (6) of sec. 
 29 of the Sale of Goods Act, that there is 
 no dehvery by seller to buyer unless 
 and until the third person in possession 
 of the goods acknowledge to the buyer 
 that he holds the goods on his behalf ; 
 and, upon the evidence in this case, the 
 storage company did not acknowledge 
 to the plaintiffs that they held the goods 
 on the plaintiffs' behalf. Delivery of 
 the document of title, at the time speci- 
 fied, was an essential term of the contract. 
 The mere intimation by the defendant 
 to the storage company that he had sold 
 to the .plaintiffs did not affect their 
 relations. 
 
 The contract of bailment (the wsfre- 
 house receipt, a duplicate of which was 
 produced by the storage company) stated 
 that the goods might be sold for non- 
 payment of charges. On the 3rd Jan- 
 uary, 1911, the storage company notified 
 the plaintiffs that- they (the storage 
 company) were about to sell the fish to 
 pay storage charges, and gave them the 
 opportunity to get the fish by paying 
 the charges before the 7th January. 
 After this notification, another firm of 
 fish dealers, acting at the request of the 
 plaintiffs, bought the fish fropi the 
 storage company for the amount of the 
 charges. The plaintiffs took over the 
 fish, paying the other dealers the amount 
 paid by them, and giving them a portion 
 of the fish as remuneration for their 
 
1057 
 
 SALE OF GOODS. 
 
 1058 
 
 Held, that this transaction did not 
 amount to an acceptance of the fish 
 by the plaintiffs under the contract. 
 
 Held, therefore, that the plaintiffs 
 were entitled to recover, as damages for 
 the breach of the contract, the $130 
 paid to the defendant, and $250 for loss 
 of profit ; and to a return of the post- 
 dated cheque. Checkik v. Price, 18 
 W.L.R. 253. 
 
 III. Refusal to Accept. 
 
 1. Damages for — Duty of seller in 
 making resale of the goods — Repudiation 
 of contract by buyer — Failure of seller to 
 prepay freight as agreed. 
 
 1. When the purchaser of an article 
 has absolutely refused to accept it 
 because he had changed his mind about 
 buying it, he cannot avoid paying 
 damages on the ground that the seller 
 was to prepay the freight and had not 
 done so. 
 
 Braithwaite v. Foreign Hardwood Co., 
 [1905] 2 K.B. 543, followed. 
 
 2. When the seller of the rejected goods 
 has resold them by auction, fairly con- 
 ducted and reasonably advertised, due 
 notice having been given to the buyer, 
 he is entitled to recover the difference 
 between the contract price and the net 
 amount realized, and he i§ not requii-ed 
 to exercise the utmost amount of dihgence 
 and skill and the most accurate judgment 
 in an endeavor to save -the wrong-doer 
 from loss. 
 
 Dunkirk Colliery Co. v. Lever, 41 L.T. 
 (1880) per James, L. J. at p. 635, followed. 
 
 The expenses of storing the article 
 in question in this case, a cab, for an 
 unnecessary length of time, and of sending 
 it from Brandon to Winnipeg to be sold 
 were disallowed. 
 
 Richards, J. A., agreed with the trial 
 Judge in holding that the plaintiff could 
 and should have sold the cab at a higher 
 price than that obtained at the auction, 
 and should, therefore, be charged with 
 such higher price as against the contract 
 price. Greer v. Dennison, 21 M.R. 46. 
 
 2. Damages for wrongftil refusal to 
 accept, measure of — Sale of Goods Act, 
 R.S.M. 1902, c. 152, s. 49— Breac/i of 
 contract to purchase. 
 
 In estimating the amount to be allowed 
 to the vendor for damages for the deli- 
 berate and unjustifiable refusal by the 
 buyer to accept the goods bargained for, 
 the Judge or jury trying the action is 
 
 not limited by sub-section (b) of section 
 49 of The Sale of Goods Act, R.S.M. 
 1902, u. 152, to the difference between 
 the contract and the market price, but 
 may, under sub-section (a), allow any 
 loss directly and actually resulting, in 
 the ordinary course of events, from the 
 buyer's breach of contract, so that, in 
 the case of a contract, for the dehvery of 
 hay in successive lots, the following 
 elements may be taken into consider- 
 ation in computing the damages : the 
 contract price ; the market price and the 
 condition of the market for hay at the 
 times when deliverable under the con- 
 tract ; the quaUty of the hay at such 
 times ; the quantity of hay deliverable 
 under the contract really in the possession 
 or under the control of the seller ; the 
 efforts made by the seEer to dispose of 
 the hay (which need not be especially 
 diligent : Brown v. Muller, L.R. 7 Ex. 
 322, and Smith v. Maguire, 27 L.J. Ex 
 472;; the prices subsequently realized 
 by the vendor ; the profits primarily 
 and properly obtainable by the vendor, 
 had the contract been performed, and 
 the expenses reasonably incurred for 
 storage, loading, ins\n-ance, etc., as a 
 consequence of the buyer's refusal to 
 accept. ' , 
 
 In such a case the vendor is entitled 
 to the benefit of all presumptions as ip 
 the advantages that might have accrued 
 to him had the contract been carried 
 out in good faith by the buyer. 
 
 Wilson V. Northampton, L.R. 9 Ch., 
 per Lord Selborne at p. 285, followed. 
 
 Bank of Ottawa v. Wilton, 10 W.L.R. 
 331. 
 
 IV. Rejection. 
 
 1. After acceptance — Warranty or con- 
 dition — Rescission for misrepresentation — 
 Delivery and acceptance — Damages — 
 Breach of warranty. 
 
 The purchaser of a specific lot of eggs 
 at fixed prices cannot, after delivery 
 and acceptance, reject and return them 
 because of a representation, made in 
 good faith by the vendor, that the pro- 
 portion of good eggs in the lot was greater 
 than it turned out to be, but is entitled 
 to a deduction from the vendor's claim 
 by reason of getting a smaller quantity 
 of good eggs than he was led to expect, 
 such deduction being allowed by way 
 of damages for breach of warranty. 
 Prowt V. Rogers Fruit Co., 18 M.R. 240. 
 
SALE OF GOODS. 
 
 1060 
 
 2. After delivery — Rescission of con- 
 tract — Appeal from findings of trial 
 Judge — Partial inspection by purchaser 
 of goods sold by specific description. 
 
 A purchaser of goods ordered to be 
 sent by railway does not lose his right 
 of rejecting the goods by unloading them 
 from the cars on arri-val and teaming 
 them to his own premises, if he finds them 
 to be inferior to wha.t he had ordered and 
 so notifies the vendor within a reasonable 
 time. 
 
 Taylcn- v. Smith, [1893] 2 Q.B. 65, 
 followed. 
 
 Under the Queen's Bench Act, 1895, s. 
 48, and Rules 638, 640, the Full Cot^ft 
 in banc is a Court of Appeal from the 
 decisions of a single Judge on questions 
 of fact as well as of law, and must weigh 
 conflicting evidence, and draw its own 
 inferences and conclusions, whilst bearing 
 in mind that it has neither seen nor 
 heard the witnesses, and making due 
 allowance in this respect. 
 
 The principles laid down in this regard 
 in The Glannibanta, (1876) 1 P.D. at p. 
 287 ; Loghlan v. Cumberland, [1898] 1 
 Ch. 704 ; Smith v. Chadwick, (1884) 
 9 A.C. 187, and The North British and 
 Mercantile Ins. Co. v. Tourtville, (1895) 
 25 S.C.E. 177, should be followed. 
 
 HeM, on t-he evidence set out in the 
 judgments, Bain, J., dissenting, that 
 the finding of Dubuc, J., who tried 
 the case, in favor of the defendants should 
 be reversed and a verdict eniered for the 
 plaintiff with costs. Creighton v. Pacific 
 Coast Lumber Co., 12 M.R. 546. 
 
 3. Retention of bill of lading — Sale 
 of Good, Act, R.S.M. 1902, e. 152, s. 30— 
 Rejection. 
 
 When the buyer of goods exercises his 
 righl, under section 30 of The Sale of 
 Goods Act, R.S.M. 1902, c. 152, to reject 
 the goods because the seier deliv*ed a 
 quantity larger than that contracted for 
 s(nd also delivered goods contracted for 
 mixed with goods of a different description 
 not included in the contracts, the reten- 
 tion by the buyer of the bill of lading 
 creates no habiUty on his part. SetMeiger 
 V. Vuieberg, 19 M.R. 328. 
 
 4. BetentiQn of goods without 
 notice of rejection to seller within 
 reasonable tiiBL» — Damages for breach 
 of warranty as to quality of goods — When 
 property passes — Sale of Goods Act, R.S.M. 
 1902, c. 162, ss. 33-36, 52. 
 
 The purchasers of goods sold by sample, 
 although they claimed that the goods 
 when received were not what they had 
 bargained for and made a number of 
 complaints by letter to the sellers and 
 verbally to their agent, made sale of 
 considerable portions of the goods and 
 did not expressly notify the sellers that 
 they r^-jected the goods , until about 
 six weeks after they had received them 
 into stock- 
 Held, that the purchasers had retained 
 the goods without rejecting them within 
 a reasonable time and, under sections 
 35 and 36 of The Sale of Goods Act, 
 R.S.M. 1902, 0. 152, had lost the right 
 of Injection and, therefore, were hable 
 for the price agreed on, subject to their 
 right, under section 52 of the Act, to 
 whatever deduction thay could estabUsh 
 a claim for by reason (if any breach of 
 warranty ■ as to quality or for damage 
 by way of counterclaim. 
 
 Cmslon V. Chapman, (1872) L.R. 2 
 H.L. Sc. 250, and Grirnolby v. Wells, 
 (1875) L.R. 10 C.P. 393, followed. 
 
 The Court held, on the evidence set 
 out in the judgment, that the purchasers 
 had failed to establish any such claim 
 for damages. 
 
 Held, also, following Benjamin on Sales, 
 5th ed. at pp. 355, 639, and Badische v. 
 Basle, [1898] A.C. 207, that, although 
 delivery to a carrier is prima facie an 
 appropriation of the goods, yet the seller 
 may contract %o deliver them to the buyer 
 at their destination, in which case the 
 property does not pass till such delivery. 
 Whitman Fish Co. v. Winnipeg Fish Co., 
 17 M.R. 620. 
 
 On appeal to the Supreme Court, 
 
 Held, reversing the above judgment, 
 that th& sale had been made subject to 
 delivery at Winnipeg, that any loss oc- 
 casioned by deterioration»in transit not 
 necessarily incident to the course of 
 transit should be borne by the sellers, 
 that the loss in this case was not so in- 
 cident, and that, under the circumstances, 
 the purchasers tad notified the sellers 
 of the rejection within a reasonable time, 
 as contemplated by the Sale of Goods 
 Act, R.S.M. 1902, c. 152 ; that the 
 plaintiffs could not recover and that the 
 defendants were entitled to have damages 
 on tbeic countercljaim. 
 
 Whitman Fish Company v. Winnipeg 
 Fish Company, 41 S.C.Il. 453. 
 
1061 
 
 SALE OF GOODS. 
 
 1062 
 
 V. Warbantt. 
 
 ■1. Express and implied warranty — 
 
 Interest on damages — Sale of Goods Act, 
 R.S.M. 1902, c. 152, ss. 15, 16. 
 
 1. Under sub-section (d) of section 16 
 of The Sale of Goods Act, R.S.M. 1902, 
 c. 152, an express warranty in a contract 
 for the sale of goods by description does 
 not exclude the implied warranty pro- 
 vided for by section 15 of the Act that the 
 goods shall correspond with the descrip- 
 tion, and on the sale of a threshing engine 
 by description there is an implied warranty 
 that it shall be reasonably fit for the work 
 that the vendor knew the buyer wanted 
 it for, which is not inconsistent with any 
 of the express warranties ugually inserted 
 in such a contract. 
 
 2. Where a contract for the sale of a 
 threshing engine contains the usual 
 warranties and also a provision that in 
 case the engine is not satisfactory the 
 company may supply another engine and, 
 if it does,. " the terms of the warranty 
 shall be held to be fulfilled, and the com- 
 pany shall be subject to no further lia- 
 bility," this should not be construed to 
 mean that the company would be ex- 
 onerated after supplying another engine 
 no matter whether it was as defective as 
 the first one or not. 
 
 3. Defendant should be allowed in- 
 terest on the amount allowed him as 
 damages as he had to pay interest on the 
 promissory notes sued on. North-West 
 Thresher Co. v. Darrell, 15 M.R. 553. 
 
 As to 1 above, see now Clark v. Waterloo 
 Mfg. Co., 20 M.R. 289, which would 
 seem to overrule it. 
 
 2. Implied condition — Sale of Goods 
 Act, R.S.M. 1902, c. 152, ss. 13, 16. 
 
 Action for breach of warranty of thresh- 
 ing machinery consisting of an engine, 
 separator and seveiral other articles sold 
 by defendants under an agreement in 
 writing containing the foUpwing among 
 otter clauses ; 
 
 " The said machinery is warranted 
 to be made of good material, to be dur- 
 able, and, with good care, to do good work 
 it properly operated by competent per- 
 sons." 
 
 " This warranty does aot apply to 
 second-hand machinery." 
 
 "There are no other warranties, guar- 
 antees or agreements oth*r than those 
 contained herein." 
 
 Held, that, as there was no complaint 
 respecting anything but the separator 
 which was admitted to be " second- 
 hand," there wae no warranty under the 
 agreement. 
 
 Held, also, that the a^eement and the 
 plaintiff's course in suing only for a 
 breach of warranty excluded the oper- 
 ation of section 16 of The Sale of Goods 
 Act, R.S.M. 1902, c. 152, which would 
 otherwise import " an implied condition 
 that the goods shall be reasonably fit" 
 for the particular purpose for which they 
 are required. 
 
 Quaere, whether the agreement did not 
 in any case exclude the statutory impUed 
 condition. 
 
 Sawyer-Massey v. Ritchie, 13 W.L.R. 
 89, reversed in the Supreme Court, 43 
 S.C.R. 614, referred to. Clark v. Waterloo 
 Manufactunng Co., 20 M.R. 289. 
 
 VI. Miscellaneous Cases. 
 
 1. Animals' Diseases Act — Warranty 
 — Caveat emptor — Sale of horse — Contagious 
 
 The Diseases of Animals Act, 54 Vic, 
 c. 17, s. 16, (R.S.M., c, 5, s. 25) provides 
 that, " Any person who sells or disposes 
 of . ... any animal infected with or 
 labouring under any infectious or con- 
 tagious, disease, or any animal respecting 
 which there is cause of suspicion that such 
 
 animal is infected shall for every 
 
 such offence incm- a penalty of one hun- 
 dred dollars." 
 
 The defendant sold to plaintiff a horse 
 suffering from glanders, but the trial 
 Judge found that he had no cause for 
 suspicion that the animal was infected. 
 There was no warranty. In an action 
 for damages, 
 
 Held, that the defendant was not 
 liable. Even if there had been a breach 
 of the statutory duty, the rule of caveat 
 emptor would aplply. Rothwell v. Milner, 
 8 M.R. 472. 
 
 2. Authority to buy, of person in 
 charge of business. 
 
 Defendant was in partnership with 
 Mrs. P., in a business of which Mr. P. 
 had the management under a power of 
 attorney from both partners, and carried 
 on under the name of P. & Co. De- 
 fendant himself took no part in the man- 
 agement, further than being sometimes 
 consulted about purchases. 
 
 Mrs. P. died and P. was left in charge, 
 to take' stock and wind up the business 
 
1063 
 
 SALE OF GOODS. 
 
 1064 
 
 and to obtain a purchaser for it. The 
 firm name remained over the store and 
 there was no outward change. 
 
 While so in charge P. ordered goods 
 from the plaintiffs, their agent entering 
 up the order in the name of P. & Co. 
 After the goods had been delivered, de- 
 fendant took possession of the whole 
 stock, including the goods supplied by 
 plaintiff, and eventually sold it. Before 
 the sale, the plaintiff demanded the 
 goods from the defendant, but was re- 
 fused. 
 
 In an action for goods sold and de- 
 livered, 
 
 Held, 1. That P. had no authority 
 to bind the defendant by the purchase. 
 
 2. If plaintiff thought he was selling 
 to the defendant, and defendant did not 
 purchase, the property would not have 
 passed and defendant would have been 
 liable in some form of action. But these 
 facts were not clearly proved. Vineherg 
 V. Anderson, 6 M.R. 335. 
 
 3. Collateral agreement — Demurrer 
 — Sale of machine — Agreement under seal. 
 
 To a declaration on an agreement, 
 under seal, for the purchase by the de- 
 fendant of a separator, for which he was 
 to pay $300 cash and to give three pro- 
 missory notes, the defendant pleaded, 
 by his 5th and 14th pleas, that, in con- 
 sideration of his entering into that agree- 
 ment, the plaintiffs agreed to purchase 
 from him a second-hand separator for 
 $200, the $200 to be credited on the first 
 note falling due ; that he delivered the 
 second-hand machine, etc. The defend- 
 ant also filed a counter-claim setting up 
 a similar state of facts, and claiming dam- 
 ages for breach of agreement in not 
 applying the purchase money in pa3rment 
 of the note. The plaintiffs replied to 
 these pleas and counter-claitaed that the 
 agreement set up by the defendant was 
 not under seal. 
 
 On demurrer, 
 
 Held, that the agreement set up in 
 the pleas was an independent collateral 
 agreement, and the pleas were, or 
 amounted to, pleas of accord and satis- 
 faction. 
 
 Held, also, that the agreement set up 
 in the counter-claim was an independent 
 collateral agreement, for a breach of 
 which damages could be claimed. Case v. 
 Laird, 8 M.R. 204. 
 
 4. Conditional sale —Lden note — 
 Vendor resuming .possession — Bights of 
 
 vendor in dealing with the goods afterwards 
 — Exchange of goods not the same as a sale. 
 When the vendor of horses under' a 
 conditional sale, having taken from the 
 purchaser a lien note containing the 
 usual provisions allowing him, in case of 
 default, to take possession of the horses 
 and hold them, " or sell the same at 
 public or private sale," etc., does retake 
 the horses, he has no right to trade one 
 of the horses for another and still hold 
 the maker of the note liable upon it. 
 Such an exchange cannot be treated as a 
 sale within the meaning of the note. 
 Harris v. Dustin, 1 Terr. L.R. 6, and 
 Sawyer v. Pringle, 18 A.R. 218, followed. 
 Moore y. Johnston, 9 W.L.R. 642. 
 
 6. Delivery — Partial delivery — Re- 
 fusal to accept excusing further delivery. 
 
 Defendant ordered goods^some manu- 
 factured and some to be manufactured — 
 from plaintiff. Defendant contended that 
 the agreement was that the goods were 
 to be shipped not later thanHhe 6th of 
 October, while plaintiff and his witnesses 
 swore to the 20th of October, as the date 
 agreed upon. On the 16th of October 
 defendant wrote, cancelling the order. 
 This letter, was received by the plaintiff 
 on the 19th of October, and on that day 
 he shipped a portion of the goods. In 
 an action for the price of the goods 
 shipped. 
 
 Held, that, even if the plaintiff's con- 
 tention as to the date were upheld, yet 
 the defendant was not bound to accept 
 a portion of the goods, and that the 
 letter of the 16th of October did not 
 excuse a complete performance. McPhail 
 v. Clements, 1 M.R. 165. 
 
 ' 6. Estoppel — Sale of chattel — Work and 
 labor. 
 
 Plaintiff agreed with defendant as 
 follows : "I will put you up building 
 with frame for tent 75 by 24, according 
 to plan, for' the sum of $500 ; starting 
 at once and completing as soon as pos- 
 sible." After completion the plaintiff 
 tore down the building and carried it 
 away without the defendant's knowledge. 
 In an action for the contract price the 
 jmy was told that it was the plaintiff's 
 duty to notify the defendant of the 
 completion, and tender it to him, 
 
 Held, 1. That, if the contract was for 
 the sale of a chattel, the charge was 
 right ; but, if for work and labor, that 
 it was wrong. 
 
1065 
 
 SALE OF GOODS UNDER FI. FA. 
 
 1066 
 
 2. That, although the circumBtaiices 
 might tend to support the view that the 
 contract was for work and labor, yet 
 that the plaintiff having, without the 
 defendant's sanction, pulled down and 
 carried away the building, he could not 
 be heard to say that it was not a sale of 
 a chattel, the property in which had not 
 passed to the defendant. Ross v. Doyle, 
 4 M.R. 434. 
 
 See Batlment, 6. 
 
 — Banks aa d Banking, 5, 7. 
 — ■ Bills of Sale, 2. 
 
 — Chattel Mortgage, II, 2. 
 
 — Conditional Sale, H. 
 
 — Contract, I, 2; XII, 1, 2, 3rXIV, 1, 2. 
 
 — CouNTy Court, II, 4. 
 — ■ Fi. Fa. Goods, 4. 
 
 — Hay. 
 
 — Limitation of Actions, 1. 
 
 — PRlNCIPjiL and AGJLNfT, I, 1, 3, 6; V, 5. 
 
 — Warranty, 2, 4. 
 
 SALE OF GOODS UNDER FI. FA. 
 
 See Sheriff, 3. 
 
 SALE OF LAND. 
 
 See Agreement for Sale of Land, 2 , 
 
 — Evidence, 9. 
 
 — ■ Misrepresentation, V, 2. 
 
 — Municipality, I, 3. 
 
 — Pleading, IX, 2. 
 
 — Ratification. 
 
 — Referee in Chambers, 2. 
 
 — Registered Judgment, 3. 
 
 — Statute of Frauds, 8. 
 
 — Taxation, 4. 
 
 — Vendor and Purchaser. 
 
 SALE OF LANDS FOR TAXES. 
 
 I. Advertisement of the Sale. 
 
 II. Crown Lands. 
 
 III. Injunction. 
 
 IV. Irregularities. 
 
 V. Mortgagor and Mortgagee. 
 
 VI. Statutes Confirming. 
 
 VII. Surplus prom Sale. 
 
 VIII. Tax Sale Deed. 
 
 IX Void Proceedings. 
 
 X. Miscellaneous Cases. * 
 
 I. Advertisement of the Sale. 
 
 1. Injunction. 
 
 Lands were advertised for sale for 
 taxes in two numbers of the Gazette, but 
 those numbers although dated upon 
 certain days did not in fact issue until 
 later dates — dates too late to comply 
 with the statute. Upon a motion for 
 an injunction to stay the sale. 
 
 Held, 1. That the statute wfis^not 
 sufficiently complied with, but 
 
 2. That insufficient advertising woilld 
 not, under the present statutes, render 
 the sale void, and that therefore no 
 injunction to stay it should be granted. 
 Wood V. 'BiHle, 4 M.R. 415. 
 
 2. Faxcels advertised as " Patent- 
 ed " — Warranty — Assessment Act, R.S.M. 
 1902, c. 117, ss. 162, 166, 168, 229. 
 
 When the secretary-treasurer of a 
 municipality, acting under section 162 
 of The Assessment Act, R.S.M. 1902, c. 
 117, advertises lands to be sold for arrears 
 of taxes as " Patented," although in 
 fact they are unpatented, and the pur- 
 chaser, relying on that statement, buys 
 without making any investigation of 
 the title, he is entitled to recover from 
 the municipahty as- damages for a breach 
 of warranty the amount he paid for the 
 lands, also all sums paid for subsequent 
 taxes orl them with interest. 
 
 Such statement should be held to be 
 a positive statement of fact made with 
 the intention that it could be relied 
 upon, and not merely an expression of 
 opinion and, being untrue, amounts to 
 a misrepresentation excluding the opera- 
 tion of the rule of caveat emptor. 
 
 McSorky v. St. John, (1882) 6 S.C.R. 
 544 ; De Lassalk v. Guildford, [1901] 
 2 K.B. 215 ; Chapman v. Brooklyn, (1869) 
 40 N.Y. 379, and Pearson v. Dublin, [1907] 
 A.C. 351, followed. 
 
 Austin V. Simcoe, (1862) 22 U.C.R. 73, 
 and McLellan v. Assiniboia, (1888) 5 
 M.R. 265, distinguished on the ground 
 of differences in statutory enactments. 
 
 Held, also, (1) That section 166 of 
 the Act does not prevent the plaintiff 
 in such a case from recovering back his 
 money. 
 
 (2) That, notwithstanding section 229 
 of the Act, the Court could add the sub- 
 sequent taxes paid by the plaintiff to 
 the amount paid by him for the land in 
 the first liace, and treat the whole as 
 damages suffered by reason of the breach 
 of warranty. 
 
1067 
 
 SALE OF LANDS FOR TAXES. 
 
 1068 
 
 (3) That the defendflnt municipality 
 should be allowed one month within 
 which to redeem the lands under section 
 168 of the Act, as having been sold through 
 error, and that, in case of redemption 
 within that time, the judgment should 
 be for costs only. Alloway v. Morris, 18 
 M.R. 363. 
 
 II. Ckown Lands. 
 
 1. Sale of, for ta;!ces before Patent 
 issued — Subsequent issue of Patent 
 to assignee of original purchaser from the 
 Crown. 
 
 B. agreed to purchase Dominion lands, 
 and paid a large proportion of the pur- 
 chase money ; by divers assignments 
 B's interest became vested in defendant. 
 The land was subsequently bought by 
 plaintiff at a tax sale ; he obtained a 
 deed therefor, and after payment to the 
 Ci'own of the balance of the purchase 
 money obtaiiied a patent for the land. 
 
 Plaintiff filed his bill praying for a 
 declaration that defendant held the 
 legal estate in the land as trustee for the 
 plaintiff. 
 
 Held, on demurrer, that the plaintiff 
 could not ask that the defendant be 
 .ordered to convey the legal estate to 
 him, until he had paid, or tendered to the 
 defendant, the amount that he paid to 
 acquire the legal estate. The Municipality 
 was empowered, on the tax sale, to convey 
 only such interest in the lands as the 
 Crown might have given or parted with, 
 or might he willing to recognise or admit. 
 The Crown was free to recognise such 
 right as the plaintiff acquired under the 
 tax deed or to disregard it and recognize 
 the defendant as the person entitled to 
 the patent. Having donp the latter, the 
 fact that thereby the defendant was en- 
 abled to hold the land free from the taxes 
 which had been imposed, and from the con- 
 sequences of the non-payment of these, 
 was no ground for the Court interfering., 
 Ruddell V. Georgeson, 9 M.R. 43. 
 
 2. Taxation of, before issue of 
 patent — Sale of same for taxes — Estate 
 or interest held by purchaser of lands from 
 Crqvm before full payment. 
 
 B., in 1881, agreed to purchase Dom- 
 inion lands and paid a great part of the 
 purchase money. By successive transfers, 
 the defendant acquired B.'s interest in 
 the lands, and in 1891 he paid the balance 
 of the purchase ■ mbnejr to' the Dominion 
 Government and received a patent for 
 
 the lands. Meantime the lands were, in 
 1887, sold by the MunicipaUty for several 
 years arrears of taxes to the plaintiff, who, 
 in 1889, obtained a tax deed for the same. 
 
 He then, in this suit, sought to obtain 
 a decree declaring that the defendant 
 held the lands as trustee for him, and, 
 offering to pay the defendant the amount 
 he had paid the Crown ' to complete the 
 original purchase, asked to have the 
 defendant ordered to convey the lands 
 to him. 
 
 Held, that the lands in question were 
 not hable to be assessed and sold for 
 taxes until the issue of the patent, or 
 at least until the Crown had received 
 fuU payment for. the same. 
 
 Held, also, that, by the contract in 
 question, B. acquired no interest or 
 estate in the lands which could be made 
 subject to assessment and taxation by 
 the Provincial Legislature, or in any way 
 . enforced against the Grown. 
 
 Whelan v. Ryan, 20 S.C.R. 65, and 
 Cornwallis v. C.P.B., 19 S.C.R. 702, 
 considered. Ruddell v. Georgeson, 9 M.R. 
 407. 
 
 III. Injunction. 
 
 1. Appeal to Court of Revision. 
 
 An injunction may be granted to 
 restrain a tax sale. The limits of such 
 jurisdiction discussed. 
 
 It is not necessary that exemption 
 from taxation should be raised before 
 the Court of Revision, and the party 
 wrongly assessed is not estopped by not 
 taking that step. C.P.B. v. Calgary, 5 
 M.R. 37. 
 
 2. Against conveyance after tax 
 sale — Offer to refund tax purchaser his 
 money— Application to Municipality to 
 cancel sale — Demnfner for want of equity — 
 Assessment. 
 
 The plaintiff's bill alleged that the 
 defendant, the City of Winnipeg, had sold 
 the plaintiff's land to the defendant 
 ' Alloway for arrears of taxes, but that the 
 assessments had been defective a,nd did 
 not properly or sufficiently describe the 
 plaintiff's land, and that the description 
 given in the assessment notices included 
 other property not claimed by the plain- 
 tiff and did not include all of her property 
 sold ; also that, in consequence, there 
 were no taxes legally in arrear and unpaid 
 at the time of the sale, and that such 
 sale was a wholly void proceeding ; and an 
 injunction was claimed to prevent the 
 
1U69 
 
 SALE OF LANDS FOR TAXES 
 
 1070 
 
 City of Winnipeg from carrying out the 
 sale by giving a conveyance of the land 
 to the purchaser. 
 
 Held, on demurrer ore terms for want of 
 equity, 
 
 1. That, although the bill alleged that 
 there wei-e no taxes in arrear and that the 
 sale was a wholly void proceeding, the 
 plaintiff might still be entitled to relief 
 ■by injunction because the issue of a deed 
 would, under the statute 55 Vic, c. 26, 
 s. 6, be evidence that there were taxes in 
 arrear, and the plaintiff might, therefore, 
 be prejudiced thereby. Archibald v. 
 Youville, 7 M.R. 473, distinguished. 
 
 2. That it was not necessary that the 
 bill should contain an offer to pay the pur- 
 chaser the amount- paid by him at 
 the sale, and subsequently for taxes and 
 otherwise, notwithstanding e. 186 of the 
 Assessment Act, R.S.M., c. 101, because 
 that section does not apply where there 
 are no legal arrears of taxes as the bill 
 in this case alleged. 
 
 3. That the plaintiff ought to have 
 applied to the City Council to cancel 
 the sale before the fihng of the bill, to 
 give the City an opportunity of con- 
 sidering whether or not it would do so ; 
 but that this objection should not now 
 prevail after the City had put in an answer 
 which set up the validity of the sale. 
 
 4. That, although the plaintiff might 
 have a remedy at law by redeeming the 
 land and then suing the City to recover 
 back the money, yet such a, remedy 
 would not be adequate under the cir- 
 cumstances, and the plaintiff was entitled 
 to have the merits of the application for 
 an injunction considered. 
 
 The plaintiff and the former owner had 
 received notices of the assessment from 
 year to year and had never appealed 
 therefrom, and although these notices 
 in some respects described her land in- 
 accurately, it was admitted that the 
 description of the land in the advertise- 
 ment of the sale was correct. At the trial 
 a good deal of evidence was given for 
 the purpose of showing that the north 
 and south boundaries of the property in 
 question, as described, were entirely 
 different from the boundaries as laid out 
 on the ground and occupied by the 
 buildings, but the Judge found as a fact 
 that the only proved discrepancy in the 
 boundaries was on the eastern side of 
 the property, where a slight error, not 
 exceeding three ffeet, Itad been made, 
 which, however, was unimportant other- 
 wise. 
 
 Held, that, as^the owners had never 
 objected to the assessments, and a con- 
 veyance of the land by the plaintiff, by 
 the description in the assessment rolls, 
 would have been effectual to transfer all 
 of her land in question excepting a little 
 on the eastern side, the assessment was 
 equally effectual to charge all the land 
 which the Court could see was clearly 
 included in the description, and an in- 
 junction should not be granted, but the 
 plaintiff should be left to any remedy 
 she might have at law. 
 
 The statement in Blackwell on Tax ' 
 Tales, ss. 518 and 519, "When part of 
 the land sold is liable to sale and the 
 residue is not, the sale is void in toto," 
 
 Held, not to apply to a case like the 
 present. 
 
 Hayden v. Foster, 13 Pick. 492, and 
 Moulton V. Blaisdell, 24 Me. 283, distin- 
 guished. Schultz V. AUoway, 10 M.R. 
 221. 
 
 3. Sale rescinded — Costs — Injunction 
 to restrain issrie of deed. 
 
 BUI filed to set aside a tax sale and to 
 restrain the mayor and secretary-treasurer 
 of the town of Portage la Prairie from 
 issuing a tax sale deed. The objection 
 taken to the sale was that no by-law had 
 been passed authorizing the same. 
 
 Prior to the return of the motion for 
 injunction, the sale was rescinded by 
 the council. 
 
 Held, that, as the plaintiff's own bill 
 showed that no by-law had been passed, 
 the issue of a deed could not prejudice 
 the, plaintiff's right to set aside the sale, 
 even after a deed had been issued (see 
 Ryan v. Whelan, 6 M.R. 565) ; therefore 
 the plaintiff was not justified in applying 
 to restrain the mayor and treasurer from 
 issuing the deed. 
 
 Held, also, that the mayor and treas- 
 urer were entitled to the costs of the 
 motion. James v. Bell, 11 CL.T. Occ. 
 N. 57. 
 
 IV. Irregularities. 
 
 1. Assessment — Non-resident lands. 
 On a bill to set aside a sale for taxes, 
 Held, 1. That, when, at a pubhc meet- 
 ing, the ratepayers had determined to 
 raise $300 for the erection of a school- 
 house, the trustees had no power to 
 increase the ainoimt. 
 
 2. That there is no power to assess 
 unoccupied or non-resident lands under 
 36 Vic, c. 22. 
 
1071 
 
 -SALE OP LANDS FOR TAXES. 
 
 1072 
 
 3. That the absence of a warrant 
 from a justice of the peace to the secretary- 
 treasurer, and of a return by the latter to 
 the trustees, are each fatal to the validity 
 of the sale. 
 
 4. 'Tha.t the fact that the Oazetle was 
 not published in three consecutive weeks 
 prior to the sale, was no sufficient excuse 
 ior non-compliance with the statute. 
 
 5. That the requirements of statutes 
 working forfeitures are to receive a strict 
 ^construction. Gemmel v. Sinclair, 1 M.B,. 
 S5. 
 
 2. Demurrer for want of equity. 
 
 In a bill to avoid a sale for taxes, 
 plaintiff alleged as objections to the sale : 
 
 That the lands were never assessed 
 according to law. 
 
 That the' assessment rolls were never 
 returned ^ccordin^ to law, or with the 
 certificate or oath required by law. 
 
 That no taxes were levied by the 
 council for either 1880 or 1881. 
 
 That in the alleged assessment rolls 
 for the years 1880 and 1881, the alleged 
 assessment and the levy allesred ,and 
 claimed to have been made were of, 
 and were assumed to be made upon, the 
 north half of the section as one parcel. 
 
 That the half section was advertized 
 as one parcel. 
 
 That at the sale the land was offered 
 for competition in two parcels of a quarter 
 section each. 
 
 That the lands were not advertized in 
 the manner and for the length of time 
 required by law. 
 
 On a demurrer for want of equity, 
 
 Held, that the allegations contairfed 
 in the bill were sufficient in form, and 
 if proved, alleged grounds for setting aside 
 the sale. 
 
 Held, that where land was assessed as 
 one parcel, a treasurer when selling has 
 no right to offer it in two or more parcels. 
 Reed'v. Smith, 1 M.R. 341. 
 
 3. Method of sale — ^SoZe for nominal 
 price — Illegal addition to amount — Name 
 of corporation — Adoption of seal — Onus of 
 proving invalidity ■ — Bill attacking void 
 transaction — Ldahiiity of lands to sale — 
 Furnishing lists to clerks. 
 
 Lands were by virtue of the local 
 statutes liable in 1885 to be sold for taxes. 
 .Furnishing to the manicipal clerks 
 lists of lands in arrear under section 272 
 of the Act of 1883, and section 289 of 
 the Act of 1884, is not a condition prece- 
 dent to the sale of land for taxes. 
 
 Per DuBuc, J. Any such objection 
 would be cured by the Act of 1886, s. 
 673, as amended by the Act of 1887, s. 
 52. 
 
 Under the Act of 1884 the treasurer 
 in selling lots, not divided into legal 
 sub-divisions, should determine whether, 
 having regard to the interests of both 
 owner and municipality, he will offer 
 the whole parcel of land or some definite 
 part. Having so determined, he should 
 sell for the highest price obtainable. He 
 is not, however, " bound to enquire into 
 or form any opinion on the value of the 
 land." Apd not having done so forms no 
 reason for avoiding the sale. 
 
 Land worth $700 was sold for taxes 
 for the sum of $17. The evidence showed, 
 however, that there was great difficulty 
 in selling lands at all. 
 
 Held, that these facts did not shew 
 that the sale was not conducted in a fair, 
 open and proper manner. 
 
 The amount for which lands were 
 sold for taxes was illegally increased by 
 the addition of interest. 
 
 Held, not to invafidate the sale. 
 
 The use of a seal as the corporate seal 
 with the knowledge and tacit consent 
 of the governing body is a sufficient 
 adoption of it. 
 
 Per DuBUC, J. A misnomer or varia- 
 tion from the precise name of the cor- 
 poration in a grant or obligation by, 
 or to, it, is not material, if the identity 
 of the corporation is unmistakeable 
 either from the face of the instrument 
 or from the averments and proof. 
 
 Per KiLLAM, J. 1. In a suit attacking 
 a tax sale deed the onus of proving its 
 invalidity is upon the plaintiff. 
 
 2. The Municipality of Kildonan was 
 not dissolved by the Municipal Act of 
 .1886. 
 
 3. A bill to set aside a tax sale^deed 
 alleged that the official who conducted 
 the sale had no authority to do so ; and 
 that the deed was not executed by the 
 officers or under the seal of the proper 
 municipal corporation. 
 
 Qucere, whether, it thus appearing that 
 the deed was whoUy void, a bill would 
 Ue to have it so' declared. McRae v. 
 Corbett, 6 M.R. 426. 
 
 v. MOKTGAGOB AND MORTGAGEE. 
 
 1. Application tor payment of over- 
 plus by mortgagee. 
 
 Land was sold for taxes and realized 
 more than the amount due upon it. 
 
1073 
 
 SALE OF LANDS FOR TAXES. 
 
 1074 
 
 Upon an application by a mortgagee of 
 the land for payment to him of the 
 overplus, 
 
 Held, that notice of the applicati(Hi 
 must be given to the mortgagor. Re 
 Anon, 3 M.E. 687. 
 
 2. Purchase at tax sale by wife of 
 mortgagor — Assignment of tax sale cer- 
 iificaie — Purchaser for value without notice 
 — Pleading — Joinder of causes of action — 
 Onus probandi — Assessment Act, R.S.M., 
 c. 101, s. 186. 
 
 The plaintiff's claim was for foreclosure 
 of a mortgage made by the defendant 
 O. G. Rutledge and possession of the 
 land. His wife, who had before the 
 making of the mortgage purchased the 
 land at a sale by the municipality for 
 arrears of taxes, and one Lawlor who, 
 liaving purchased the tax sale certificate 
 from one McCubbin, to whom it had 
 been assigned by Mrs. Rutledge, had 
 afterwards obtained a deed from the 
 municipality for the land, were made 
 parties defendant in the action. The 
 statement of claim made a number of 
 allegations with a view to showing that 
 the purchase at the tax sale was invalid 
 as against the plaintiff or generally, 
 and claimed that the tax deed to Lawlor 
 was void, but did not formally ask to 
 have it set aside, though it concluded 
 with the general prayer for further reUef. 
 
 The following points were decided : — ■ 
 
 1. An objection by Lawlor to th ; state- 
 ment of claim for multifariousness on 
 the ground that a separate action should 
 he brought to set aside the tax deed to 
 liim could not succeed : Cox v. Barker, 
 3 Ch. D. 359 ; ChUd v. Stenning, 5 Ch. D. 
 ■695. The objection should have been to 
 the joinder of other causes of action to 
 .an action for possession of land, without 
 leave as required by Rule 251 of The 
 ■Queen's Bench Act, 1895, if in fact no 
 .such leave had been given. 
 
 2. The plaintiff was entitled to meet 
 the defendant Lawlor's allegation of a 
 title paramount under the tax deed 
 and its statutory effect as evidence by 
 showing omissions or informalities which 
 would invalidate the proceedings, and 
 to have an adjudication upon the question 
 of title without any specific prayer for 
 relief against the deed. 
 
 3. When the tax sale took place, the 
 wife of the mortgagor was as free as any 
 .stranger to acquire for her own benefit 
 any title to or mterest in the land para- 
 mount to that of the mortga'gee, either 
 
 by B.sing money of her own, if she had 
 any, or by inducing a third party to 
 advance it on her separate account, pro- 
 vided the transaction was not merely 
 colorable and really carried out on be- 
 half of the mortga or. 
 
 4. There was not sufficient evidence 
 of any trust as between the defendant 
 Lawlor and the Rutledges, and for all 
 that appeared in the e'vidence there was 
 an actual sale of the tax sale certificate 
 and the rights conferred by it to Lawlor 
 for valuable consideration, and the onus 
 was not thrown upon him to prove that 
 Mrs. Rutledge acted on her own account 
 and not as agent for her husband in mak- 
 ing the tax purchase. 
 
 5. Although Mrs. Rutledge by her 
 conduct after she had purchased, in con- 
 cealing the fact from the mortgagee at 
 a time when in the opinion of the Court 
 she ought to have disclosed it. had dis- 
 entitled herself to proceed with her pur- 
 chase and acquire a vahd title as against 
 the mortgagee ; yet it did not follow 
 that a person purchasing her apparent 
 rights under the tax sale certifioate for 
 value, and without notice or knowledge 
 of her special incapacity, might not have 
 acquired a title under a tax deed which 
 would have cut out the plaintiff's mort- 
 gage. 
 
 6. To entitle Lawlor to claim pro- 
 tection as a purchaser for value without 
 notice of Mrs. Rutledge's fraudulent 
 conduct he should have pleaded this as a 
 defence and given evidence of it, al- 
 though the plaintiff had not in his pleading' 
 alleged notice to Lawlor of the conceal- 
 ment by Mrs. Rutledge. 
 
 McAlliste ■ V. f'orsyth, (1885) 12 S.C.R. 
 1 ; Attorney-General v. Wilkins, (1853) 
 17 Beav; 285, followed. 
 
 7. As Lawlor had neither pleaded nor 
 proved such want of knowledge or notice, 
 the plaintiff was entitled to judgment 
 without being called upon to prove any 
 notice to Lawlor, the Court not haying 
 been asked for reUef on the ground that 
 such defence had been omitted through 
 any error or slip and that it could be 
 ^successfully raised, ajid there • being 
 
 / nothing to suggest that the defendant 
 had been taken by smprise or misled in 
 any way. 
 
 8. The case did not come within 
 section 186 of The Assessment Act, and 
 Lawlor was not entitled to any lien on 
 the land for the taxes paid as against 
 the plaintiff's mortgage. 
 
1075 
 
 SALE OF LANDS FOR TAXES. 
 
 1076 
 
 Judgment for foreclosure in the usual 
 form with a declaration that any title 
 to the lands in question which Lawlor 
 took or held under the tax sale deed was 
 held by him subject to the plaintiff's 
 mortgage. Day v. Rvlledge, 12 M.R. 
 290, . 
 
 Affirmed, 29 S.C.R. 441. 
 
 VI. Statutes Confirming. 
 
 1. Certificate vesting land in muni- 
 cipality — Assessment Act, B.S.M., 
 1892, c. 101, ss. 166, 188, 191—55 Vic, 
 c. 26, s. 7^— Statutory effect of vesting cer- 
 tificate as evidence of regularity of tax sale 
 proceedings — Estoppel ^- Assessment of 
 land. 
 
 1. Although, by section 166 of The 
 Assessment Act, R.S.M., 1892, c. 101, 
 vesting certificates issued by a muni- 
 cipaUty in its own favor, upon sales of 
 land for taxes bought in for the muni- 
 cipality, are to have the same effect in 
 all respects as deeds of sale of land for 
 taxes, and by section 191 of the same 
 chapter, as re-enacted by 55 Vic, c. 
 26, s. 7, a tax deed is made conclusive 
 evidence of the validity of the assessment 
 of the land, the levy of the rate, the sale 
 and all the other proceedings leading 
 up to the execution of the deed, yet it 
 does not follow that such vesting certi- 
 ficate should have the same effect as 
 evidence as tax deeds would have, and 
 the mere production and proof of the 
 vesting certificate does not shift the 
 onus, from the municipality claiming 
 title under it, of furnishing proof of the 
 validity of the tax sale. 
 
 Alloway v. Campbell, (1891) 7 M.R. 
 506, and Ryan v. Whelan, (1891) 20 S.C.R. 
 65, followed. 
 
 2. The provisions of sections 6 and 7 
 of 55 Vic, c 26, as to the evidential value 
 of a tax sale deed, do not apply to vesting 
 certificates, and leave it open to the 
 former owner to show, if he can, that there 
 was no legal assessment or levy for the 
 years in respect of which the land was 
 sold for iaxes. 
 
 3. A municipality is estopped from 
 questioning the regularity of its own pro- 
 ceedings relating to a tax sale, or of the 
 assessment upon which the same were 
 founded, as against a purchaser in good 
 faith who has paid the purchase money 
 and obtained a deed vmdef the corporate 
 seal of the municipality. 
 
 Re Laplante and Peterborough, (1884) 
 6 O.R. 634, followed. 
 
 4. The assessment of the land in ques- 
 tion for the year 1891 was null and void 
 because, (a) the assessor had not signed 
 the assessment roll as required by 53 
 , Vic, c. 45, s. 42, although he had signed 
 the certificate appended ' to the roll as 
 required by section 43 of the same chap- 
 ter, and (b) the land was only described 
 as the "N.W. quai-ter 27," without any 
 mention of the township or range. Al- 
 loway V. Rural Mun. of Si. Andrews, 16 
 M.R. 255. 
 
 2. Irregularities. 
 
 Land was sold in 1882 for the taxes of 
 1880 and 1881. No by-law levying a 
 rate was passed in either year after the 
 revision of the assessment roll. The 
 statute then in force authorized a sale 
 when two years arrears were due. Upon 
 the deed in pursuance of such sale being 
 attacked, ' 
 
 Held, 1. (Overruhng Taylor, C. J.). 
 That the sale and deed were invalid. 
 
 2. That the Act 47 Vic, c 11, s. 340, 
 providing that " all landg heretofore sold 
 for school, municipal and other taxes, foir 
 which deeds have been given to pur- 
 chasers, shall become absolutely vested in 
 
 such purchasers unless the validity 
 
 thereof has been questioned before 
 
 the 1st day of January, 1885," and the 
 Act 49 Vic, c 52, s. 673, as amended by 
 50 Vic, c 10, s. 52, only applied where 
 there were two years arrears legally due. 
 
 Per Bain, J. The Act 51 Vic, o. 101, 
 s. 58, which provides that " all assess- 
 ments heretofore made and rates here- 
 tofore struck by the municipalities are 
 hereby confirmed and declared valid and 
 binding upon all persons and corpor- 
 ations affected thereby," only extends 
 to remedying and supplying irregular- 
 ities and defects in assessments and 
 rates that were actually made and struck 
 in substantial conformity with the dir- 
 ections of the statutes. 
 
 Per KiLLAM, J. That Act, having 
 been passed after the execution of the 
 deed, could not operate to pass to the 
 purchaser ^ title which previously he 
 had not obtained. Ryan v. Whelan, 6 
 M.R. 565. ' 
 
 AflSrmed, 20 S.C.R. 65. 
 
 3. Void proceedings — Deed not in 
 duplicate — Seal of corporation — Repealed 
 statute — Assessment Act, R.S.M., c. 101 . 
 
1077 
 
 SALE OF LANDS FOR TAXES. 
 
 10.78 
 
 ss. 190 and 191 — Description of land in 
 assessment roll. 
 
 At the trial of an issue under The 
 Real Property Act, the plaintiff claimed 
 the land in question under a tax sale deed 
 from the Rural MunicipaUty of St. 
 Francois Xavier. The defendants were 
 the owners of the land at the time of the 
 tax sale. 
 
 No evidence was given to show that 
 the tax sale deed had been made and 
 executed in duplicate as required by 
 section 187 of The Assessment 'Act, 
 R.S.M., c. 101, 
 
 Held, that this was no objection to the 
 validity of the sale. 
 
 The old seal of the municipality had 
 been used for the deed, whilst the name 
 of the municipality had been changed by 
 the statutory addition of the word 
 " Rural." The municipality had, how- 
 ever, adopted and used the old seal. 
 
 Held, following McRae v. Corbett, 6 
 M.R. 426, that this objection was not 
 fatal to the deed. 
 
 Held, however, that the tax sale in 
 question was void on the following 
 grounds : — 
 
 1. The warrant given by the reeve, 
 authorizing the treasurer to hold the 
 tax sale, was dated' 18th August, 1891, 
 and professed to be given under the 
 Municipal Act of 1886, which had been 
 repealed by the Municipal Act of 1890, 
 which came into force before the date of 
 the warrajQt, and such warrant conferred 
 no authority upon the treasurer to sell 
 the land in question. 
 
 2. The land in question, consisting of 
 the inner and outer two miles of Lot 
 No. 59 as described in the degd and the 
 advertisement of the sale, was described 
 simply as " Lot 59 " on the assessment 
 roll, and as this is not sufficiently certain, 
 being understood by some to include 
 only the inner two miles- of the lot, it 
 does not comply with the requirement 
 of The Assessment Act, that every piece 
 or parcel of land be entered " by a true 
 and accurate description " in the roll. 
 
 And that these defects or irregularities ' 
 are not cured by ss. 190 and 191 of The 
 Assessment Act, R.S.M., c. 101, as 
 amended by 55 Vic, c. 26, ss. 6 and 7, 
 which, on the authority of O'Brien v. 
 Cogswell, 17 S.C.R. 420 ; Archibald v. 
 Youville, 7 M.R. 473, and Alloway v. 
 Campbell, 7 M.R. 506, cannot be held 
 to ejrtend to cover irregularities and 
 defects connected with the assessment, 
 the imposition of the rate, and other 
 
 steps required to be taken before the land 
 could be sold for taxes. Nanton v. Vil- 
 leneuve, 10 M.R. 213. 
 
 4. Void proceedings — Assessment 
 Act, B.S.M., c. 101, ss. 148, 190, 191 — 
 51 Vic, c. 36, ss. 6 and 7. 
 
 Issue under The Real Property Act 
 between plaintiff, claiming under a tax 
 sale deed, and defendant, the owner sub- 
 ject to the tax sale. 
 
 Held, that the tax sale should be set 
 aside on the following grounds : — 
 
 (1) No resolution of the council of 
 the municipaUty was passed as required 
 by The Assessment Act, R.S.M., c. 101, 
 s. 148, directing the treasurer to prepare 
 a Ust of lands hable to be sold for taxes 
 prior to the preparation of same, or until 
 after the reeve had signed the warrant 
 to the treasurer to proceed with the sale. 
 
 (2) Only one of the two lists of lands 
 for sale was authenticated by the sig- 
 nature of the reeve and the seal of the 
 municipahty, whereas section 148 of the 
 Act requires that both hsts should be 
 so authenticated. 
 
 (3) There was no resolution of the 
 council directing the treasurer in what 
 newspaper the advertisement of the sale 
 should be published, as the statute 
 requires when there is no newspaper 
 published in the municipality, as in this 
 case. 
 
 (4) At the sale, the land was bought 
 for the municipality, but no resolution 
 was passed by the council prior to the 
 sale authorizing the reeve or any other 
 member of the council to attend and bid. 
 
 Held, also, that the effect of sections 
 190 and 191 of the Act, as amended by 
 55 Vic, c 26, ss. 6 and 7, is to remedy 
 only irregularities and not absolute 
 nullities, and not to validate sales made 
 on the basis of absolutely void proceed- 
 ings as in this case. 
 
 O'Brien v. Cogswell, (1889) 17 S.C.R. 
 420, and Nanton v. Villeneuve, (1894) 
 10 M.R. 213, followed. Teirault v. 
 Vaughan, 12 M.R. 457. 
 
 VII. SUHPLTJS FEOM SaLE. 
 
 1. Forfeiture of surplus purchase 
 money remaii^ing' in the hands of 
 the treasurer for six years — From what 
 time the six years begin to run — R.S.M. 
 1892, c. 101, s. 193. 
 
 Where lands have been sold for taxes 
 under the Assessment Act, and the price 
 amounts to more than the taxes due. 
 
1079 
 
 SALE OF LANDS FOR TAXES. 
 
 1080 
 
 and the purchaser at the end of two years 
 from the, day of sale pays the surplus 
 purchase money to the Treasurer of the 
 Municipahty, the, same cannot be claimed 
 by the MunicipaUty as forfeited until 
 after the lapse of six years from the 
 receipt thereof by the Treasurer, although 
 the language of Section 193 of the Act 
 is ambiguous and speaks of the money 
 remaining in the hands of the Treasurer 
 for six years from the day of sale of the 
 land of which it formed part of the 
 purchase money. Re Carey and Lot 65, 
 Sub-Division of Lot 39 E., St. John, 9 
 M.E,. 483. 
 
 Z. Mortgagor and mortgagee — Pur- 
 chase by mortgagee — Bight to overplus. 
 
 Where a mortgagee purchases the 
 mortgaged lands at a tax sale and receives 
 a tax deed therefor, he is entitled to the 
 surplus moneys realized by the muni- 
 cipality from such sale in excess of the 
 taxes and costs. Re Grant, 7 M._R. 468. 
 
 3. Order for payment of overplus. 
 
 District registrars or Cpunty Court 
 Judges have jurisdiction, under section 
 158 of the Assessment Act, to make 
 orders for payment over to the owners 
 by Municipalities of the overplus result- 
 ing from tax sales, only in cases 
 where the land has been sold under 
 the provisions of the Assessment Act. 
 
 The overplus from prior tax sales must 
 be dealt with under the provisions of 
 sections 675 and 676 of the Municipal 
 Act, 1886. Re John Henderson:, 7 M.R. 
 481. 
 
 VIII. Tax Sale Deed. 
 
 1. Action for not executing. 
 
 A statute authorizing the sale of lands 
 for taxes, provided that the deeds" " shall 
 be executed by the reeve and treasurer, 
 and under the seals of the said muni- 
 cipalities respectively." In an action 
 for refusal to execute a deed to a pur- 
 chaser, the declaration alleged a demand 
 upon the municipality. 
 
 Held, that the action would not lie, 
 for the deed ought to be executed by the 
 reeve and treasurer, and not by the 
 municipality. 
 
 Every count in g, declaration must con- 
 tain in itself a complete cause of action. 
 And where several counts showed a cause 
 of action in A., and at the foot ot the 
 declaration an assignment was alleged 
 to the plaintiff of " all of the aforesaid 
 causes of actioin," etc. 
 
 Held, that those words formed no part 
 of the counts and could not be looked at 
 upon demurrer to some of them. McLel- 
 lan V. Mun. of Assiniboia, 5 M.R. 127. 
 
 2. Action for not executing. 
 
 A statute authorizing the sale of land 
 for taxes, provided that the deeds " shall 
 be executed by the reeve and treasurer 
 and under the seals of the muoicipalities 
 respectively." In an action against a 
 municipality for refusal to execute a 
 deed. 
 
 Held, (KiLLAM, J., diss, and affirming 
 DuBUc, J.) That the action would not 
 lie, for the deed ought to be executed by 
 the reeve and treasurer, and that not as 
 agents of the municipality. McLellan .v. 
 Mun. of Assiniboia, 5 M.R. 265. 
 
 Distinguished : Alloway v. Morris, 18 
 M.R. 364. 
 
 3. Efiect of — Onus of proof. 
 
 In an issue under the Real Property 
 Act as to the ownership of certain lands, 
 the plaintiff claimed title under a tax 
 sale deed from the Mayor and Treasurer 
 of the City of Winnipeg. 
 
 Held, that the onus was on the plain- 
 tiff to prove the a^ssessment, the im- 
 position of the rate, and the taking of 
 every step which it was by statute neces- 
 sary to take, for imposing the tax and 
 making it a binding charge on the land. 
 
 Doe Dem. Bell v. Reaumore, -3 O.S. 
 243 ; McKay v. Crysler, 3 S.aR. 436 ; 
 and O'Brien v. Cogswell, 17 S.C.R. 420, 
 considered and commented on. Alloway 
 V.Campbell, 7 M.R. 506. 
 
 IX. Void Phocbedings. 
 
 1. Defective assessment — By-law 
 to levy rate ambiguous — Court of Revision 
 — :Sale of two parcels may be good for one, 
 although bad for the other parcel. 
 
 This was a suit in Equity to have a 
 tax sale deed of the west half of section 
 22-7-8 W. declared void, and set aside 
 as a cloud on plaintiff's title. The north- 
 west quarter was only granted by the 
 Crown on the 29th October, 1888, but 
 it and the other quarter were sold to- 
 gether in 1890 for arrears of taxes for 
 1888 and 1889. 
 
 Held, that the sale of the north-west 
 quarter was void, because the land was 
 not subject to be taxed-ia theytar 1888, 
 but that, following Schvitz v. AUoway, 
 10 M.R. 221, the tax ^le in question 
 
1081 
 
 SALE OP LANDS FOR TAXES. 
 
 1082 
 
 might have been good as to the south- 
 west quarter, but for the other objections. 
 Held, however, that the sate was void 
 on the following grounds : — 
 
 1. That there was no record in the 
 proceedings of the Municipal Council 
 of any report to the Council by the Court 
 of Revision as required by section 586 
 of the Municipal Act then in force. The 
 minutes showed that the Council had 
 resolved itself into a Court of Revision, 
 that the Court of Revision had dealt 
 with thfe appeals brought before it, and 
 that a motion had been carried " that 
 the Court of Revision do now adjourn," 
 followed immediately by a. motion " that 
 the Council now take up the general 
 business," but there was no mention 
 of any report to Council by the Court. 
 
 2. That the rate by-law passed by the 
 Council for the levying of taxes in 1888 
 was ambiguous, providing merely, " that 
 a rate of six mills be struck for general 
 purposes," and other rates of so many 
 mills and fractions of a mill for other 
 purposes, not saying whether these mills 
 were to be levied on each section or quarter 
 section or tipon each inhabitant or upon 
 every dollar in value of property ; and, 
 although by section 603 of the said Act 
 taxes were required to be levied equally on 
 all taxable property in the proportion of 
 its value as determined by the assessment 
 roll in force, yet, following the principle 
 laid down in the case of O'Brien v. Cogs- 
 well, 17 S.C.R. 420, it could not be as- 
 sumed that the rate ^as intended to. be 
 struck upon every dollar of value, ae 
 enactments imposing and regulating the 
 collection of taxes are to be construed 
 strictly and, in aU caseS of ambiguity 
 whjch may arise, that construction is 
 to be adopted which is most favorable 
 to the subject. Colquhoun v. Driscoll, 
 10 M.R. 254, 
 
 2. Illegal sale not a cloud on title— 
 
 Hill to set aside— Demurrer allowed — Pro- 
 ceedings illegal — Deed null and void. 
 
 Bill to set aside a sale of lands for 
 .taxes. The plaintiffs alleged they bought 
 the lands in 1888 and received a certi- 
 ficate from the treasurer of the defendants 
 that there were then no taxes in arrears. 
 In 1890 the defendants sold the lands 
 for taxes claimed to be due in 1883 and 
 the following years. 
 
 The biU prayed that the sale might 
 be declared null and void, and the de- 
 
 fendants restrained from conveying lands 
 to the purchaser. 
 
 The defendants demurred on the 
 ground that, the sale having once been 
 made, they had nothing further to do 
 with the matter, and that if, as the bill 
 alleged, the sale was wholly null and void, 
 the Court would not interfere. 
 
 Held, that, upon the facts set out in 
 the bill, the sale of the lands by the 
 defendants was illegal, and a deed in 
 pursuance of the sale, were one • issued, 
 would be null and void. If such a deed 
 were executed, but not registered, the 
 Court would not, under ordinary circum- 
 stances, interfere to set it aside. Even if it 
 were registered it might be questionable if 
 the Court would interfere. 
 
 The plaintiffs alleged in their bill 
 that the lands were not in fact assessed 
 at all, and that no by-law appointing an 
 assessor or striking a rate of taxation 
 was passed by the defendants in either 
 or any of the years for which taxes were 
 charged. 
 
 Held, that the proceedings were not 
 valid on their face, and so the illegal 
 sale could not be considered to be a cloud 
 upon the title, in the sense in which the 
 term is used in the authorities. Archi- 
 bald V. Municipality of Youville, 10 C.L.T. 
 Oco. N. 388. 
 
 See next case. 
 
 3. Injunction to restrain issue of 
 tax deed. 
 
 A municipality assumed to sell certain 
 lands for taxes, although no tax had ever 
 been assessed and levied upon them, 
 and none was in arrear. The lands were 
 also exempt by statute. 
 
 On a bijl filed by the owner to set aside 
 the sale, and for an injunction restraining 
 the issue of a tax deed. 
 
 Held, 1. That, as the proceedings were 
 void upon their face, the Court would 
 not grant an injunction, or make a decree 
 declariiig the sale void. 
 
 2. At all events, before he may resort 
 to the extraordinary remedy of injunction, 
 the owner must make an application 
 to the Municipal Council to rescind the 
 sale, under the provisions of 52 Vic, c. 
 27, s. 39, (M. 1888). 
 
 Under our Acts, a tax sale deed is 
 conclusive evidence of the validity of 
 the sale, and of all the prior proceedings 
 in and about the sale, but it is not even 
 prima facie evidgice of the assessment 
 
1083 
 
 SALE OP LANDS FOR TAXES. 
 
 1084 
 
 or of the imposition of the rate. Archi- 
 bald V. Youville, 7 M.R. 473. 
 
 Distinguished, Schultz v. AUoway, 10 
 M.R. 221. 
 
 See previous case. 
 
 X. Miscellaneous Cases. 
 
 1. Assignment of tax certificate by 
 municipality. 
 
 The lands in question were sold for 
 arrears of taxes by the Municipahty of 
 St. Laurent. 
 
 At the tax sale the Municipality be- 
 came the purchaser under the provisions 
 of section 656 of The Municipal Act, 
 1886. It subsequently assigned the tax 
 certificate to N., to whom a tax deed was 
 issued. 
 
 N. conveyed to A., who applied for 
 a certificate of title under The Real 
 Property Act, 1889, and contended that 
 he was entitled to receive from the 
 District Registrar (under section 57, Real 
 Property Act) notices to be served on 
 all persons who, except for the tax deed, 
 would be interested in said lands. 
 
 On a reference by the District Registrar, 
 
 Held, that the tax sale deed was vahd 
 and A. was entitled to receive said notices 
 for service. Re Allan, 7 M.R. 28. 
 
 2. Canadian Pacific Railway Lands— 
 
 Construction ofC.P.R. Contract— Voluntary 
 payment. 
 
 The Canadian Pacific Railway Com- 
 paiiy by its contract with the Crown was 
 entitled to a grant of certain lands upon 
 completion of certain portions of the 
 railroad, and these lands were exempted 
 from taxation for 20 years from the grant 
 thereof from the Crown, unless sooner sold 
 or occupied. This contract wag ratified 
 by statute. After the making of said 
 contract, but before the patent for the 
 lands had been issaed, the defendant 
 .municipality, within which the lands 
 in question lay, assumed to tax certain 
 parcels of the said lands, and afterwards 
 Sold them for taxes. The Judge at the 
 trial found that the Railway Company 
 -had performed its part of the contract, 
 entitling it to a grant of said lands before 
 the sale was held. Shortly before the 
 time for redemption expired, the RaHway 
 Company paid the taxes to the muni- 
 cljiality under protest to avoid tax deeds 
 being issued, and afterwards brought an 
 action to recover the money. 
 
 Held, 1. (KiLLAM, J., dissenting.) Tha* 
 the plaintiff was entitled to recover. 
 
 2. (KiLLAM, J., dubitante.) That the 
 plaintiff had an interest in the lands 
 prior to patent issuing. 
 
 3. (KiLLAM, J., dissenting.) That, 
 under the terms of the contract, the lands 
 ware exempt from taxation from the 
 date of the contract until 20 years after 
 the issue of the patent unless sooner sold 
 oi[ occupied. 
 
 4. (IQllam, J., dissenting.) That^the 
 money was not paid voluntarily and might 
 be recovered back. 
 
 Canadian Pacific Railway V. Burnett, 5 
 M.R. 395, followed and approved. 
 
 C.P.R. V. Rural Mun. of Comwallis, 7 
 M.R. 1. 
 
 AfBrmed, 19 S.C.R. 702. 
 
 Distinguished, Water Commrs. o/ Windr 
 sor V. Can. Sou. Ry., 20 A.R. 388. 
 
 3. Conducting sale in a fair and 
 open maimer— PJace of sale. 
 
 This was an issue under The Real 
 Property Act to determine the validity 
 of a sale of land for taxes due to the 
 Municipahty of Winchester. Section 154 
 of the Assessment Act provides that a 
 sale for arrears of taxes shall take place 
 at such place as the council shall by 
 resolution or by-law appoint, or, in the 
 absence of such appointment, at, such 
 public place in the assize town or city of 
 the Judicial District wherein the muni- 
 cipality is situated as may be chosen by 
 the treasurer. 
 
 The council did not appoint any place 
 for the holding of the saie, and the treas- 
 urer appointed the sale to take place 
 at a small hall in the- municipahty, and 
 not at the assize town or city of the 
 Judicial District, which is Brandon. 
 Moreover the sale began at 11 o'clock 
 in the morning, was continued for about 
 an hour, and then the auctioneer, officials 
 and audience all went away .to dinner 
 and were absent for about an hour, during 
 which time no one was left in charge of 
 the hall which was.locked up, nor was any 
 notice put up at the door with reference 
 to the sale, and the land in question was. 
 sold after the sale waS resumed in the 
 afternoon, and tor just the amount 
 of the taxes. 
 
 Held, that under these circumstances 
 it could not be considered that the sale 
 had been conducted in a fair and open 
 manner, and that, under seotion ISO of 
 the Assessmeot Act the tax sale should 
 
1085 
 
 SALE OF LANDS FOE TAXES. 
 
 1086 
 
 be set aside and a verdict entered for 
 defendants as mortgagees. Scott v. Im- 
 ■perialLoanCo., 11 M.R. 190. 
 
 4. Costs — BiU to set aside. 
 
 Where a purchaser at a tax sale is not 
 a party to apy irregularity or impro- 
 priety, he win not be ordered to pay the 
 costs of a pro confesso suit to set it aside, 
 unless he has been afforded an oppor- 
 tunity of investigating the matter, and 
 electing to abandon any claim without 
 suit. Blanchard v. Scanlan, 3 M.R. 13. 
 
 5. Damages against municipality — 
 
 The Assessment Act, R.S.M., c. 101, s. 192 
 — Right of action ^- Compensation. 
 
 Where the owner of land, which has 
 been sold for arrears of taxes when no 
 taxes were due thereon, cannot recover 
 it back by reason of its having been 
 brought under the operation of The Real 
 Property Act, his right of action against 
 the Bounicipahty under section 192 of 
 the Assessment Act, R.S.M., c. 101, 
 for the loss or damage sustained by him 
 on account of such sale, is not complete 
 untU the amount of the indemnity to 
 be paid is first settled in the mann^ 
 pointed oilt. by that section, namely : 
 either by agreement or arbitration ; and, 
 where the plaintiff, in his declaration 
 claiming damages under that section for 
 tiie wrongtul sale of his lands by the 
 defendant municipahty for alleged arrears 
 of taxes, showed that the lands had been 
 brought under The Real Property Act by 
 the tax purchaser, but did not show any 
 agreement with defendants as to the 
 amount of indemnity, nor that any ar- 
 bitration had been held to ascertain 
 such amount, a demurrer was allowed. 
 demons v. St. Andrews, 11 M.R. 111. 
 
 6. Expropriation Act, B.S.M., c. 
 
 56 — Assessment Act, RS.M., u. 101, 
 6. 168. 
 
 Under section 168 of The Assessment 
 Act, R.S.M., c. 101, a tax purchaser 
 bidding more for the land than the amount 
 due for taxes and costs forfeits all claim 
 to the land purchased and to the money 
 paid at the time of sale, unless he pays 
 the balance of his purchase money within 
 two months after the expiration of the 
 time, allowed , the owner for redemption ; 
 and it makes no difference if in the mean- 
 time the land is taken by the Provincial 
 Government for a public work under the 
 Expropriation Act, R.S.M., c. 56, and 
 the value thereof paid into Court. 
 
 In such a cafie, notwithstanding the 
 consent of the solicitor of the Public 
 Works department. 
 
 Held, that the tax purchaser had no 
 right or claim upon the money paid into 
 court by the Government. Re Dunn and 
 The Expropriation Act, 12 M.R. 78. 
 
 7. Half-breed lands — lAahilily to 
 taxation before patent — Municipal Acts. 
 
 The children of half-breed heads of 
 families residing in Manitoba at the time 
 of the transfer of this Province to Canada, 
 to whom lands were allotted in pursuance 
 of the statutes in that behalf, have, after 
 the allotment and before patent, a pro- 
 perty or interest in the lands which it 
 is competent for the Provincial Legis- 
 lature to make liable to taxation. 
 
 These lands were made hable to be 
 assessed and taxed by the Municipal 
 Acts of 1883 and 1884, and a sale of 
 such lands in November, 1887, for 
 arrears of taxes for the years 1884 and- 
 1885, (the proceedings being regular) is 
 valid, although the patent was not issued 
 until 1886. Re Mathers, 7 M.R. 434. 
 
 8. Purchase by Municipality — Auth- 
 ority for reeve to bid at sale — Assessment 
 Act, R.S.M. 1902, c. 117, s. 176. 
 
 Under section 176 of The Assessment 
 Act, R.S.M. 1902, c. 117, which provides 
 that a municipality may bid for lands 
 within its boundaries which are being 
 sold for arrears of taxes and become the 
 purchaser through the mayor or reeve, 
 or any member of the council duly auth- 
 orized by the council so to bid, it is not 
 sufficient that the council shoiild authorize 
 the reeve to attend the tax sale on behalf 
 of the n^unicipality, and a purchase by 
 the reeve without express authority to 
 bid is invalid and ineffectual to pass 
 title to the municipality or to a pm> 
 * chaser from it. 
 
 None of the curative clauses of the Act 
 avail to support the claim of the pur- 
 chaser in such a case. Bannatyne v. 
 Pritchard, 16 M.R. 407. 
 
 9. Redemption of whole by owner 
 of part — Lien for redemption money. 
 
 Where land has been sold for taxes in 
 one parcel, different parts of which were 
 owned by separate owners, an owner 
 may not redeem his part without redeem- 
 ing the whole unless the land was com- 
 posed of more than one lot or parcel 
 according to a registered plan as provided 
 
1087 
 
 SALE OF LIQUOR. 
 
 108S 
 
 for by section 668 of The Municipal 
 Act, 1886. 
 
 The provision in sec. -038, for the 
 payment of the proportionate amount of 
 taxes chargeable upon any sub-division, 
 only applies to the payment of taxes 
 before sale. 
 
 F. and S. jointly owned certain land. 
 This land they subsequently sub-divided, 
 each taking one half, and the proper 
 conveyances were made. The land was 
 afterwards sold for taxes in one parcel. 
 F. redeemed the whole. 
 
 Held, thatF. was entitled to a lien on 
 S.'s land for the ■ proportion of the re- 
 demption money chargeable to that 
 land. 
 
 Payne v. Goodyear, 26 U.C.R. 448, dis- 
 cussed and distinguished. Fonseca v. 
 Schvltz , 7 M.R. 458. 
 
 See C.P.R. Lands, 3. 
 
 — ■ Foreign Cohpobations, 1. 
 
 — Real Pkopeety Act, II, 9; III, 6; 
 
 V, 2. ^ 
 
 — Real Property Limitation Act, 7, 8. 
 
 — Statutes, Construction of, 7. 
 
 — Taxation, 4. 
 
 SATISFACTION OF JUDGMENT. 
 
 See Sheriff, 3. 
 
 SALE OF LIQUOR. 
 
 (See Liquor License Act, 11. 
 
 SALE OF MORTGAGED RAILWAY 
 PROPERTY. 
 
 See Mortgagor and Mortgagee, VI, 13. 
 — Railways, XI, 3. 
 
 SALE OF RIGHT TO CUT TIMBER. 
 
 See Contract, V, 4. 
 
 SCANDALOUS MATTER. 
 
 ' In affidavits — Disclosure by solicitor of 
 confidential communications from client. 
 
 Plaintffi's claim , was for payment of 
 $6,000 which she alleged defendant had 
 received for her as the purchase money 
 of certain real estate belonging to her 
 which she had employed defendant to 
 sell for her. She alleged that he had 
 only paid over $500 of the money. De- 
 fendant, who was a solicitor of this Court, 
 applied for an order for security for costs 
 on the ground that the plaintiff was 
 permanently resident out of Manitoba 
 and, in support of the application, de- 
 fendant filed his own affidavit in which 
 he set forth certain communications 
 ajleged to have been made by the plaintiff 
 to him as her solicitor and which, if true, 
 showed that she was not legally married 
 to her alleged husband, and stated m 
 effect that plaintiff had returned to and 
 was living with such alleged husband who 
 was a non-resident. On plaintiff's ap- 
 plication to have the affidavit taken off 
 the files of the Court, it was. argued on 
 behalf of the defendant that the facts 
 thus sworn to were relevant to the ques- 
 tion whether plaintiff was permanently 
 residefnt out of the jurisdiction or not, as 
 tending to show that she was greatly 
 under the influence of the alleged husband 
 and therefore likely to remain permanently 
 with him. , 
 
 Hdd, allowing with costs an appeal 
 from the Referee, that the affidavit should 
 be ordered off the files as contammg 
 matter which plaintiff was entitled to 
 have treated as privileged from disclosure, 
 and which was scandalous and irrelevant 
 to the application. A. v. B., 14 M.R. 
 729. 
 
 SALE OF SHARES. 
 
 See Contract, XIII, 1. 
 
 SALE UNDER MORTGAGE. 
 
 See Mortgagor and Mortgagee, V. 
 
 SCHOOL DISTRICTS. 
 
 Award of arbitrators — School house 
 non-existent. 
 
 After a division of the Donore school 
 district, an award was made under 
 section 14 of the Manitoba School Act, 
 1881, of the existing school houses, school 
 sites and other school property and 
 
1089 
 
 SCHOOL INSPECTOR. 
 
 1090 
 
 assets within the territories re-adjusted. 
 After the division, but previous to the 
 sitting of the arbitrators, the school 
 house of the district was destroyed by 
 fire. 
 
 Held, that, as the school house was not 
 in existence at the time of the arbitration, 
 it was not proper for the arbitrators to 
 charge the new district, within whose 
 limits the building had been, with its 
 value as an asset, and the matter was 
 referred back to the same arbitrators 
 to correct the mistake. Re Donore and 
 WhealUmds, 1 M.R. 356. 
 
 See Corporation, 1. 
 
 — Garnishment, V, 8. 
 
 — Mandamus, 6. 
 
 SCHOOL INSPECTOR. 
 
 See Public Schools Act, 1. 
 
 SCHOOL TAXES. 
 
 See Municipality, VIII, 6. 
 — Public Schools Act, 2. 
 
 SCHOOL TRUSTEE— ELECTION OF. 
 
 iSee Public Schools Act, 1. 
 
 — Quo Warranto, 3. 
 
 — Residence. 
 
 SCHOOLS. 
 
 See Constitutional Law, 13, 14. 
 — Public Schools Act. 
 
 SCIRE FACIAS. 
 
 Against Shareholder — Exhausting 
 remedies against Company. 
 
 Sci. Fa. will lie against a shareholder 
 by a creditor of the Company under 
 40 Vic. c. 43. s. 47 (D). 
 
 An objection to that form of proceeding 
 is not open upon demurrer. 
 
 Persons who are shareholders when 
 the sci. fa. proceedings are commenced 
 are liable, although the execution against 
 
 the Company may have been returned 
 nuUa bona before they acquired their 
 shares. 
 
 Judgment was recovered in Manitoba 
 against a corporation, incorporated under, 
 the Canada Joint Stock Companies' Act, 
 1877, having its head office in the Province 
 of Quebec, and an execution was re- 
 turned nulla bona. 
 
 Held, that sci. fa. might be brought 
 'against a shareholder in Manitoba, al- 
 though the Company had assets in 
 Quebec ; and, although money sufficient 
 to pay the plaintiff's claim had, with the 
 assent of the plaintiff, been paid to a 
 third person in Quebec, for the purpose 
 of paying off the plaintiff, and that such 
 third person was able and willing to pay 
 the amount to the plaintiff ; and al- 
 though the Company had lands in^IMan- 
 itoba sufficient to answer the plaintiff's 
 claim. Crawford v. Morton, Crawford v. 
 Duffield, 7 C.L.T. Occ. N. 93. 
 
 SCRUTINEERS. 
 
 See Local Option By-Law, II, 1. 
 
 SCRUTINY OF VOTES. 
 
 See Election Petition, X, 6. 
 
 SEAL. 
 
 See Bond. 
 
 — Pleading, VI, 1. 
 
 SEAL OF CORPORATION. 
 
 See Company, II, 2; III, 3, 4. 
 
 — ■ Corporation. 
 
 — Master and Servant, IV, I, 2, 4. 
 
 — Municipality, I, 4; II, 3. 
 — • Negligence, VII, 7. 
 
 — Pleading, VI, 1; XI, 17. 
 
 — Principal and Agent, III, 2. 
 
 — Sale of Land for Taxes. IV, 3; VI, 3. 
 
 SEARCH WARRANT. 
 
 See Malicious Prosecution, 5. 
 
1091 
 
 SECOND ACTION FOR SAME CAUSE. 
 
 1092 
 
 SECOND ACTION FOR SAME CAUSE. 
 
 See Staying Prpceedings, II. 
 
 SECOND CAVEAT. 
 
 : Real Property Act, I, 9, 10. 
 
 SECOND TRIAL. 
 
 See Criminal Law, VI, 5. 
 
 SECRECY OF THE BALLOT. 
 
 See Criminal Law, XVII, 15. 
 
 — Local Option By-Law, V, 2. 
 
 — Municipal Elections, 4. 
 
 SECURITY FOR COSTS. 
 
 I. Allowance of. 
 
 II. Op Appeal. 
 
 III. Defence on Merits. 
 
 IV. Foreign Company Plaintiff. 
 V. Further Security. 
 
 VI. Libel in Newspaper. 
 VII. Nominal Plaintiff. 
 VIII. Ownership of Property Within 
 Jurisdiction. 
 IX. Rescinding Order on Plaintiff 
 Coming to Reside Permanent- 
 ly. 
 X. Miscellaneous Cases. 
 
 ' I. Allowance of. ' 
 
 1. Cross-examination of surety — 
 
 Justification by surety — Refusing to answer 
 questions. , 
 
 Upon the examination as to his sol- 
 vency, of a surety upon a bond for sec- 
 urity for costs : 
 
 1. The surety cannot be compelled to 
 produce his title deeds. 
 
 2. The examining party has no right 
 to enquire as to all the property which 
 the surety may own. The surety may 
 sajr " I own a certain property and I 
 claim that to be of sufficient value to 
 qijalify me to be a surety." 
 
 3. The surety will not be committed 
 because he gives unsatisfactory answers, 
 as that he cannot remember the de- 
 
 scription of his lands. This is not a 
 refusal to answer. Re Assiniboia Elec- 
 tion, 4 M.R. 346. 
 
 2. Extension of time after party 
 barred — Interpleader. 
 
 An interpleader order directed that 
 the plaintiffs should give security for 
 costs to the satisfaction of the i)rotho- 
 notary on or before the 10th April, and 
 that in default they should be barred 
 from all claim to the goods. 
 
 On the day named the plaintiffs paid 
 S200 into court, but did not obtain, 
 upop notice to the claimant, an expression 
 of the prothonotary's satisfaction with 
 such security. 
 
 Held, 1. That the Referee had, after 
 the expiration of the day named, juris- 
 diction to ejctend the time. 
 
 2. The withdrawal from possession 
 by the sheriff after the day named con- 
 stitutes no bar to an appeal by the 
 plaintiffs from an order reversing the 
 Referee's order extending the time. Howe 
 V. Martin; Dupas, Claimant, 6 M.R. 477. 
 
 3. Form of bond — Style of cause. 
 
 On an application for the allowance 
 of a bond for security for the costs of 
 an appeal to the Supreme Court, the 
 onus of satisfying the Court of the suffi- 
 ciency of the security is upon the appel- 
 lant. 
 
 Such a bond ought to be in favor of 
 the respondent, and not of the Registrar 
 of the Court. One surety -may, under 
 certain circumstances, be sufficient. 
 
 In an affidavit, one defendant was 
 named " Hon. John C. Schultss." In all 
 other proceedings it was " John Chris- 
 tian Schultz." 
 
 Held, that the affidavit could not be 
 read . 
 
 Attorney-General v. Fonseca, 5 M.R. 300. 
 
 4. Sufficiency — (hvus as to — Power 
 of Master on reference — Extension of time. 
 
 An order was made directing security 
 to be given, within a certain time, to 
 the satisfaction of the Master. 
 
 Plaintiff brought in a bond with one 
 surety who justffied in $400 over his 
 just debts, but said nothing about ex- 
 emptions. The defendant fled an affi- 
 davit impeaching the surety's solvency. 
 The Master disallowed the bond. 
 
 Held, 1. That the Master had acted 
 properly. 
 
 2. That further time should not be 
 given unless upon material sufficiently 
 
1C93 
 
 SECURITY FOR COSTS. 
 
 1094 
 
 explaining the delay, etc Osborne . v. 
 Inkster, 4 M.R. 399. 
 
 II. Op Appeal. 
 
 1. To Court of Appeal — Jurisdiction 
 of Judge of the King's Bench to order — 
 Order for security for costs already taxed and 
 for which jvdgment entered. 
 
 1. Neither a Judge of the King's Bench 
 nor a Judge of the County Court has 
 jurisdiction to order a non-resident plain- 
 tiff to give security, to the defendant for 
 the costs of an appeal to the Court of 
 Appeal or to stay proceedings in the 
 Court of Appeal after the action has 
 got into that Court, but the Court of 
 Appeal will itself in a proper case order 
 seciurity for the costs of the appeal on 
 the application of the defendant. 
 
 BerUsen v. Taylor, [1892] 2 Q.B. 193, 
 not followed. 
 
 2. When the plaintiff's action has been 
 dismissed and the defendant has entered 
 judgment for his taxed costs, no order 
 will be made requiring the plaintiff pro- 
 secuting an appeal to give security for 
 them, although he is a non-resident and 
 the security he has already given under 
 an order made by the court of first' 
 instance is insufficient to cover the taxed 
 costs. Kerfoot v. Yeo, 19 M.R. 512. 
 
 2. To Supreme Court — Retaining 
 money in court paid in by successful party. 
 
 A plaintiff who has obtained judgment 
 in his favor, which has been affirmed on 
 appeal to the Full Court, is entitled to 
 have paid out to him the money he had 
 paid into court as security for costs, 
 notwithstanding an appeal by defendant 
 to the Supreme Court of Canada. 
 
 Hamill V. IMey, (1887) 56 L.T.N.S. 
 620, and Marsh v. Webb, (1892) 15 P.R. 
 64, followed. 
 
 The Agricidlural Ins. Co. v. Sargent, 
 (1895) 16 P.R. 397, distinguished. Day 
 V. Butledge, 12 M.R. 309. 
 
 III. DErENCE ON Merits. 
 
 1. Where no defence on the merits. 
 
 Held, that a defendant has no right 
 to security for costs, unless he has a 
 defence on the merits. Western Electric 
 Light Co. V. McKenzie, 2 M.R. 51. 
 
 2. No defence to action — Proof of. 
 Upon an application for security for 
 
 costs the plaintiff cannot (other than 
 in proof of defendant's adruission) file 
 
 affidavits in proof of his cause of action 
 and oblige the, defendant to show that he 
 has some defence. 
 
 An action was brought upon a foreign 
 judgment. Upon an appUcation for sec- 
 urity the plaintiff filed a certified copy 
 or exemplification of the judgment. Tlie 
 existence of the judgment was admitted 
 by the defendant and he did not allege 
 payment of it. 
 
 HM, that as there might be some 
 doubt upon the construction of the 
 judgment as to whether it was of such a 
 nature as to raise an impUed promise 
 to pay it, the defendant was not to be 
 deprived of his right to security. British 
 Linen Co. y. McEwan, 6 M.R. 29. 
 
 IV. FOBEIGN'COMPANY PLAINTIFF. 
 
 1. Ownership of property in Pro- 
 vince. 
 
 Hdd, 1. A company must be said to 
 be resident at its head office. 
 
 2. If the head office of a plaintiff 
 Company be out of the jurisdiction, prima 
 fade the defendant is entitled to security. 
 
 3. The plaintiff Company, resident in 
 England, was being wound up there 
 under the statutes in force in England. 
 
 Held, that the defendant was entitled 
 to security for costs, even although the 
 Company had large assets in this Pro- 
 vince. 
 
 4. A serious doubt as to there being 
 an effective remedy, it defendants obtain 
 a judgment for their costs, warrants 
 the making of an order for security. 
 
 5. Security ordered with stay of pro- 
 ceedings, although the plaintiff was upon 
 the point of going to trial. 
 
 6. A winding up order is not of itself 
 a stay of proceedings, and notice of 
 trial given after such order will not on , 
 account of it be set aside. North-West 
 Timber Co. v. McMillan, 3 M.R. 277. 
 
 2. Assets within Province — Eged. of 
 license under Foreign Corporations Act — 
 King's Bench Act, Rule 978 — Practice. 
 
 1. When a plaintiff company is de- 
 scribed in the statement of claim as 
 having its head office out of, and a branch 
 office within, the jurisdiction, the defend- 
 ant is prima fade entitled, under Rule 
 978 of The King's Bench Act, to a prcecipe 
 order for security for costs. 
 
 Norlh-West Timber Co. v. McMiUan, 
 (1886) 3 M.R. 277, and Ashland Co. v. 
 Armstrong, (1906) 11 O.L.R. 414, followed. 
 
1095 
 
 SECURITY FOR COSTS. 
 
 1096 
 
 2. Such an order should not be set 
 aside by reason of the Company having, 
 within the jurisdiction, assets consisting 
 only of some office furniture of small 
 value and premiums of insurance from 
 time to time paid into the branch office 
 for transmission to the head office. 
 
 3. The obtaining of a license under the 
 Foreign Corporations Act, R.S.M. 1902, 
 c. 28, to carry on a company's business 
 in the Province, has not the effect of 
 making it a domestic corporation or 
 giving it a local residence, so as to free 
 it from the necessity of giving security 
 for costs. 
 
 Ashland Co. v. Armstrong, supra, 
 followed. Canadian Railway Accident Co. 
 V. KeUy, 16 M.R. 608. 
 
 V. Further Security., 
 
 1. Application tor— What must he 
 shown. 
 
 Although an order for security for 
 costs has been made and comphed with, 
 an order for further security can be 
 granted uppn a proper case being made. 
 
 On an application for further security 
 defendants must show that they could 
 not have foreseen that the cause was one 
 in which security to a larger amount 
 than that usually ordered would have 
 been proper. 
 
 In this case the defendants failed to 
 show that costs already incurred, and to 
 which they were entitled, had exhausted 
 the security already given. 
 
 AppUcation refused. 
 
 Bell V. Landon, 9 P.R. 100, followed. 
 Charlebois v. Oreat North-West Central 
 Ry. Co., 9 M.R. 60. 
 
 Distinguished : Moore v. Scott, 16 M.R. 
 428. 
 
 2. Application for — Practice — 
 King's Bench Act, iSMfe987. 
 
 Taking out a prmeipe order for secin^ity 
 of costs is not a bar to a subsequent 
 application for an order for additional 
 security where 'it could not be said that 
 .the defendant ought to have anticipated 
 the necessity for further security when 
 he first apphed. 
 
 Standard Trading Co. v. SeyboM, (1902) 
 5 O.L.R. 8, followed. 
 
 Charlebois v. G.N.W. Central Ry. Co., 
 (1893) 9 M.R. 60, distinguished. Moore 
 V. Scott, 16 M.R. 428. 
 
 VI. LiBEii IN Newspaper. 
 
 1. Action conunenced before stat- 
 ute complied with — Statutes. 
 
 A statute provided that defendants 
 in actions of libel might, under certain 
 circumstances, obtain security for costs. 
 Another clause provided that no person 
 who had not complied with the provisions 
 of this statute (as to legistration, etc.,) 
 should be entitled to the benefit of it. 
 
 Held, that compliance with the pro- 
 visions of the statute after action brought 
 did not entitle the defendant to the 
 benefit of the Act. Daly v. White, 5 
 M.R. 55. 
 
 2. Dismissal of action — Libel Act, 
 R.S.M., 1902, c. 97, s. 10 — King's Bench 
 Act, Rides 508, 978, 982. 
 
 1. Under section 10 of The Libel Act, 
 R.S.M. 1902, c. 97, a corporation de- 
 fendant may obtain an order for Security 
 for costs as well as an individual and Rule 
 508 of The King's Bench Act is appU- 
 
 2. Rule 982 and following Rules of 
 The King's Bench Act must be read along 
 
 , with section 10 of the Libel Act, so that 
 a defendant sued for libel may obtain 
 a second or other subsequent order for 
 security under that section. 
 
 3. Rule 978 does not, however, apply 
 in such a case, so that the order should 
 not contain a provision for the dismissal 
 of the action m case of non-compUance, 
 but a substantive application for dis- 
 missal would have to be made after .the 
 lapse of the time limited. Adcock v. 
 Manitoba Free Press Co., 19 M.R. 160. 
 
 VII. Nominal Plaintiff. 
 
 1. Real plaintiff a third party. 
 
 This action was brought upon a cheque 
 payable to bearer, which had been paid 
 by defendant, but he had neglected to 
 have it delivered up to him on payment, 
 and the same came into other parties' 
 hands. 
 
 After issue had been joined, a summons 
 for security for costs was taken out, 
 on the ground that the plaintiff was not 
 interested and that a third party was the 
 real plaintiff. 
 
 From the examination of the plaintiff 
 it appeared that he was a clerk in the 
 office of Turner, McKeand & Co. of 
 Winnipeg, and had been asked to have the 
 cheque sued in his name, he had no 
 property, he knew nothing of the suit 
 
1097 
 
 SECURITY FOR COSTS. 
 
 1098 
 
 until about a week before the examin- 
 ation on his declaration, which was after 
 issue joined, and had never seen the 
 cheque sued on until about that time, 
 and, should the suit be a successful one 
 against the defendant, it would not be 
 he, but Turner, McKeand & Co., who 
 would receive the benefit. 
 
 Held, that it was a case in which 
 security should be directed, and that the 
 order would be the usual order for sec- 
 urity for costs, to cover all costs of suit 
 incurred, or that might be incurred by 
 the defendant. Costs of the application 
 to be costs in the cause. Marlindale v. 
 Conklin, 1 M.R. 338. 
 
 2. Change of venue. 
 
 lield, 1. A Judge in chambers has 
 power to change the venue, notwith- 
 standing a prior change in Term. 
 
 2. A plaintiff having assigned his 
 cause of action, the defendant is entitled, 
 upon discovery of the fact, to security 
 for costs, if he moves promptly, notwith- 
 standing that he may, by delay, be dis- 
 entitled upon other grounds. Vivian v. 
 Plaxton, 2 M.R. 124. 
 
 3. PlaintifC suing for benefit of 
 others. 
 
 Upon an application for security for 
 costs, it appeared that the plaintiff had 
 assigned the cause of action to three 
 persons. After the application had been 
 made, two of these persons re-assigned 
 to the plaintiff. 
 
 Held, that no order for security should 
 be made ; although had one existed 
 it would not, under such circumstances, 
 have been discharged. Evans v. Boyle, 
 5 M.R. 152. 
 
 VIII. Ownership op Propbbtt Within 
 
 JUEISDICTION. 
 
 1. Plaintifi out of jurisdiction — 
 
 Real estate, ownership of, may he sufficient 
 security for costs. 
 
 The ownership of unincumbered real 
 estate within the Proviiice may be a 
 sufficient answer to an application for 
 security for costs, based on the plaintiff's 
 non-residence. Caston y. Scott, 1 M.R., 
 117, not followed. 
 
 A Colonial Court should follow the 
 decisions of the English Court, of Appeal 
 rather than those of another Colonial 
 Court. Trimble v. Hill, 5 App. Cas. 
 352, and Hollender v. Ffoulkes, 26 O.R. 
 
 61, followed. Wood v. Guillett, 10 M.R. 
 570. 
 
 2. Eyidence— Affidavit— Q.B. Act, 1895, 
 Rule 500. 
 
 The plaintiff, who lived out of the 
 jurisdiction, moved to set aside a prcecipe 
 order for security for costs on the ground 
 that he owned real estate of sufficient 
 Value within the jurisdiction to secure 
 costs. The afiidavit in support of the 
 motion alleged that half a section of 
 land in the province was vested in him 
 and that, according to the best of his 
 knowledge, information and beUef it 
 was worth $3,000, and that it was un- 
 incumbered as he was informed and verily 
 beheved. 
 
 Held, that such affidavit did not 
 comply with Rule" 500 of The Queen's 
 Bench Act, 1895, as it did not gjve the 
 plaintiff's grounds of beUef, and that 
 there was no sufficient evidence to sup- 
 port the plaintiff's application. Dobson 
 v.Leasfc, 11M.R.620. 
 
 IX. Rescinding Order on Plaintiff 
 Coming to Reside Permanently. 
 
 1. Discharging order for security 
 for costs after security given. 
 
 When an order for security for costs 
 has been made and -security actually 
 given under it, the order wiU not be 
 discharged on the plaintiff returning to 
 reside permanently in the Province. 
 
 Semble, it is otherwise if the security 
 has not been given. Brown v. Schardz, 
 7 M.R. 42. 
 
 2. Evidence of intended residence. 
 
 A plaintiff cpming to reside within 
 the jurisdiction, after an order for security 
 for costs has been made against him, 
 cannot get the order rescinded without 
 convincing the Court that his intended 
 residence within the jurisdiction is 'to be 
 of a more permanent character than for 
 the temporary purpose of enforcing 
 his claim by action. 
 
 Howard v. Howard, 30 L.R. Ir. 340 ; 
 Westenberg v. Mortimore, 44 L.J.C.P. 289, 
 L.R. 10 C,P. 438, followed. Cordingly v. 
 Johnson, ll M.R. 4. 
 
 X. Miscellaneous Cases. 
 
 1. Delay in applying for. 
 
 After defendant had obtained a post- 
 ponement of the trial,> and had applied 
 for and been refused a further postpone- 
 
1099 
 
 SECUBITY FOR COSTS. 
 
 1100 
 
 ment, he applied for security for costs, 
 alleging that he had only learned a few 
 days before moving of the fact of the 
 plaintiff's absence. 
 
 Held, that the application was not too 
 late. Carrvihers v. Wateroiis, 4 M.R. 402. 
 
 2. Evidence of plaintifE's residence 
 abroad. 
 
 Although the rule is that, upon an 
 application for security for cdsts upon 
 the ground of the absence of the plaintiff, 
 the absence must be positively sworn to, 
 yet, where in the same action the plaintiff 
 had filed an affidavit describing himself 
 as of a place without the jurisdiction, 
 
 Held, that the absence was sufficiently 
 proved. Fair v. O'Brien, 3 M.R. 680. 
 
 3. Insolvent plaintiff — Assignment of 
 claim su?d on — Practice. 
 
 A plaintiff or petitioner will not be 
 ordered to give security for costs on the 
 ground that he is insolvent and has 
 assigned the claim, it the assignment was 
 only given as security and he is still 
 interested in the collection of the money. 
 Shields v. McLaren, 9 M.R. 182. 
 
 4. Interlocutory costs — Payment into 
 court in lieu of a bond for security for 
 costs. 
 
 Money paid into court in lieu of giving 
 a bond for security for costs will be 
 ordered to be paid out in satisfaction of 
 interlocutory costs. Sutherland v. McKin- 
 non, 3 M.R. 608. 
 
 6. Interpleader proceedings. 
 
 Pending an interpleader summons, an 
 order was made for the examination of 
 ^the claimant upon an affidavit filed by 
 her. Thereupon the claimant applied 
 for and obtained an order staying pro- 
 ceedings until security for costs was 
 given by the plaintiff, a foreign execution 
 creditor. Upon appeal from the County 
 Court, 
 
 Held, 1. That no order for security 
 could be made until an issue was directed. 
 Buchanan v. Campbell, 6 M.R. 303. 
 
 6. Motion for summary judsmeal. 
 
 — AppUcation to set aside prcecipe jrder 
 for — King's Bench Act, Rule 988. 
 
 Rule 988 of the King's Bpuch Act, 
 R.S.M. 1902, c. 40, does not prevent a 
 non-resident plaintiff, agains'j whom an 
 order for security for co>ifcs has been 
 taken out on prcecipe, from moving to 
 set aside such order upon any ground 
 
 otherwise open to him, it merely pro- 
 vides a means whereby such a plaintiff, 
 ■wishing to move for summary judgment, 
 may, by paying $50 into court, proceed 
 with such motion without fully comply- 
 ing with the prcecipe order. 
 
 Walters v. Duggan, (1896) 17 P.R. 359, 
 followed. 
 
 Payne v. Newberry, (1890) 13 P.R. 
 354, distinguished. Copelin v. Cairns, 19 
 M.R. 609. 
 
 7. Petition under ' Real Property 
 Act. 
 
 When a petition is filed by a caveator 
 under The Real Property Act and the 
 petitioner- resides out of the jurisdiction 
 he must give security for costs. 
 
 If the respondent shews cause to the 
 petition without asking for security, he 
 thereby waives the right to it. 
 
 SembU, this may not waive the right 
 to security in respect of an issue to try 
 questions raised upon such, a petition. 
 Ross V. Morgan, 7 M.R. 593. 
 
 8. Stay of proceedings — Enlargement 
 of summons for. 
 
 A summons for security for costs was 
 returnable the day before the day for 
 which the argument of a demurrer had 
 been set down. It had been served 
 late on the previous day. 
 
 An enlargement of the summons was 
 granted and the Judge refused mean- 
 while to stay the argument of the de- 
 murrer. Hooper v. McBean, 3 M.R. 682. 
 
 9. Waiver of security by proceeding 
 in the cause — Prcecipe ord^. 
 
 A prcecipe order for security for 
 costs may be issued by the Clerk of 
 Records and Writs. 
 
 The defendant obtained a prce- 
 cipe order with a stay of proceedings. 
 The plaintiff, treating that order as 
 a nullity, noted the bill pro confesso. 
 The defendant then applied to the Referee 
 for another order for security. This 
 order was granted. The plaintiff appealed 
 upon the ground that the bill was pro 
 confesso, and that the defendant had 
 waived his right to security by having 
 previously made an application to stay 
 all proceedings until the costs of a prior 
 suit had been paid. 
 
 Held, 1. That the prcecipe order was 
 valid. 
 
 2. That the Referee's order for security 
 should be reversed. 
 
1101 
 
 SECURITY FOR MONEY. 
 
 1102 
 
 3. That the defendant had not waived 
 his right to security by moving to stay 
 proceedings. Baynes v. Metcalf, 3 M.R. 
 438. 
 
 See Appeal tkom County Court, VIII. 
 
 — Election Petition, II, IX; X, 1, 2, 6. 
 
 — Interpleader, VII. 
 
 — Married Woman, 4. 
 
 — Practice, XXVIII, 27. 
 
 — Real Property Act, II, 7, 8; III, 7. 
 
 — Staying Proceedings, I, 2, 4. 
 
 SECURITY FOR MONEY. 
 
 See Bills op Sale, 3. 
 
 at aU between the third party and the 
 servant, who would remain all the time 
 in the original service, though bound 
 to obey such commands of the third 
 party as were impUed by the nature 
 of the employment or the terms of the 
 agreement. 
 
 Carrw. Clarke, 2 Chitty, 260, commented 
 on. Hebb v. Lawrence, 7 M.R. 222. 
 
 2. Of Ulegltimate child — Act re- 
 specting the Action of Seduction, 65 Vic., 
 c. 43, {M. 1892). . 
 
 Section 1 of the Act respecting the 
 Action of Seduction, 55 Vic, c. 43, 
 does not apply to the case of the seduc- 
 tion of an illegitimate female, St. 
 Germain v. Chareite, 13 M.R. 63. 
 
 SEDUCTION. 
 
 1. What constitutes relation of 
 master and servant. 
 
 The plaintiff sued the defendant for 
 the seduction of her daughter, a girl 
 fourteen years of age. At the time the 
 seduction took place, the girl was living 
 as a domestic servant at the defendant's 
 Bouse, under the following circumstances : 
 The plaintiff made a contract with de- 
 fendant, in the daughter's presence, 
 that the daughter should enter his ser- 
 vice for $8 a month. The wages were to 
 be paid to the mother. 
 
 For the plaintifif it was contended 
 that the defendant's contract was with 
 the mother, that the daughter remained 
 all the time in the service of the mother, 
 and did her work as the servant of the 
 n.other under the mother's contract 
 with defendant. The jury found a 
 verdict for plaintiff. On a motion for 
 a non-suit. 
 
 Held, that under such circumstances 
 the only proper inference was, that the 
 girl was to serve the defendant alone, 
 as her master in the ordinary way, and 
 there was not sufficient evidence, to 
 warrant the jury in finding that any but 
 the ordinary relations of master and 
 servant existed between the girl and the 
 defendant, or that the girl remained 
 the servant of the mother, and was to 
 do her work in that capacity. 
 
 (Per KiLLAM, J.). There may well 
 be a case in which a master hires out a 
 servant to do work for a third party, 
 and in which there would be no contract 
 
 SEED GRAIN MORTGAGE. 
 
 See Chattel Mortgage, II, 2, 3. 
 
 SEIZURE. 
 
 See County Court, II, 4. 
 
 — Fi. Fa. Goods, 4. 
 
 — Fixtures, 1. 
 
 — Sheriff, 6. 
 
 SELF DEFENCE. 
 
 ! Criminal Llw, XVTI, 3. 
 
 SENTENCE. 
 
 I Criminal Law, XIII, 6. 
 
 SEPARATE DEFENCES. 
 
 See Costs, VII. 
 
 SEPARATE ESTATE. 
 
 See Married Woman, 1, 2, 5. 
 
 — Real Property Act, III, 2, 3. 
 
1103 
 
 SEPARATE PROPERTY OF WIFE. 
 
 1101 
 
 SEPARATE PROPERTY OF^WIFE. 
 
 See Husband and Wipe, II, 1, 2; HI, 1; 
 IV, 2. .....> 
 
 SEPARATION DEED. 
 
 See Alimony. 
 
 SERVICE BY PUBLICATION. 
 
 See Phacticb, XXIV, 2, 3. 
 \ , 
 
 SERVICE OF NOTICE. 
 
 See Practice, VII, 1. 
 
 SERVICE OF PROCESS. 
 
 See County Court, II,. 7. 
 
 — • Jurisdiction, 6, 7, 8, 9, 10. 
 
 — Practice, IV, 3; XIX, 1, 3; XX, B, 3. 
 
 SERVICE ON SOLICITOR. 
 
 See Practice, IV, 4. 
 
 SERVICE jour JOF JURISDICTION. 
 
 jSee Lunatic, 2. 
 
 — Patent op Invention, 1. 
 
 — Practice, XIX, 2; XX, C. 
 
 — Private International Law. 
 
 — Prohibition, I, 3. 
 
 SET-OFF. 
 
 1. Of interlocutory costs — Costs of 
 application. 
 
 Interlooutory costs may be set off 
 against interlocutory costs. 
 
 If the right of set-off be contested 
 the successful party may be entitled to 
 the costs of the application. Real Estate 
 Loan Co. v. Molesworth, 3 M.R. 176. 
 
 2. Counterclaim — Assignments' Ad, 
 B.S.M. 1902, c. 8, ss. 6, 20— Right of action 
 
 for damages — Solicitor's lien for costs- — 
 King's Bench Act, s. 39 (e). Ride 293. 
 
 Plaintiff sued for damages for deceit 
 upon a sale by defendant to him of a 
 business fraudulently represented to ,be 
 of much greater value than it was. De- 
 fendant counterclaimed for the balance 
 of the purchase money. 
 
 After the trial but before judgment 
 plaintiff made an assignment for the 
 benefit of his creditors under the Assign- 
 ments Act, R.S.M. 1902, c. 8, and the 
 assignee was added as a co-plaintiff. 
 
 In giving judgment the trial Judge 
 awarded $750 damages to the plaintiff 
 with the costs of the action, but he found 
 also that the defendant was entitled to 
 recover a much larger sum on his counter- 
 claim which was not disputed. The 
 Judge also ordered a set-off and that 
 judgment be entered for defendant for 
 the balance and refused to allow the 
 plaintiff's solicitor any lien for costs. 
 
 Held, even if the plaintiff's claim had 
 been validly transferred to the assignee, 
 the defendant would be entitled to 
 maintain his counterclaim and to have 
 the plaintiff's damages paid by deducting 
 them from it, as both claim and counter- 
 claim arose out of the same transaction, 
 and Rule 293 of The King's Bench Act 
 expressly provides that the Judge may 
 order such set-off to be made. 
 
 Shrapnel v. Laing, 20 Q.B.D. 334 ; 
 •Lowe v. Holme, 10 Q.B.D. 286, and 
 Newfoundland v. Newfoundland Ry. Co., 
 13 A.C. 199, followed. 
 
 (2) The discretion of the Judge in 
 making such order should not be inter- 
 fered with, although the effect was to 
 deprive the plaintiff's soUcitor of any 
 hen for costs on the amount awarded 
 to his client whether for damages 
 or costs. 
 
 WestacoU v. Bevan, [1891] 1 Q.B. 774 ; 
 Pringle v. Gloag, 10 Ch.D. 680, tod 
 McPh&rson v. AUsop, (1839) 8 L.J. Ex. 
 262, followed. McGregor v. Campbell, 
 19 M.R. 38. 
 
 3. Principal and agent. 
 
 When the buyer of goods from an agent 
 knows that the person he is dealing 
 with is only an agent, he cannot set off 
 a claim against the agent in an action 
 by the principal for the price of the 
 goods, although the ownership of the 
 goods may have been transferred to an- 
 other principal before he bought and 
 without his knowledge. So far as the 
 claim of set-off is concerned, it is im- 
 
1105 
 
 SET-OFF OF COSTS. 
 
 1106 
 
 material whose agent the buyer' thought 
 him to be. 
 
 Boidlon V. Jones, (1857) 2 H. & N. 564, 
 distinguished Wood v. John Arbulhnot 
 Co., lo M.R. 320. 
 
 4. Summons to sign judgment. 
 
 Anything which could have been 
 pleaded by a defendant under the old 
 statutes of set-off, can now be brought 
 forward in answer to an appUcation for 
 leave to sign judgment under the statute 
 and will prevent an order being made 
 allowing judgment to be signed. Man- 
 oque v. Mason, 3 M.R. 603. 
 
 6. Trustee — Assignment — Notice of 
 assignmejit. 
 
 A person, whilst holding a sum of 
 money in trust for A and B, pending 
 the decision of a suit of A against B, may 
 acquire an overdue promissory note of one 
 of the parties and, upon the settlement 
 of the suit, may then set off any balance 
 found to be in his hands for such party 
 against the amount of the note, whether 
 he holds such note for his own benefit 
 or that of another ; provided he has no 
 notice of any as-ignment of such balance 
 by such party in favor of some third 
 person. 
 
 Fair v. Mclver, 16 East, 130 ; Lacking- 
 ton v. Combes, 6 Bing. N.C. 71, and 
 Belcher v. Lloyd, 10 Bing. 310, distin-- 
 guished on the ground that they were 
 decided under the set-off clauses of the 
 Bankruptcy Acts, which, as shown by 
 Parke, B,, in Forster v. Wihon, 12 M. & 
 W., 191, are given a different construction 
 from the statutes of set-off. 
 
 Talbot V. Frere, 9 Ch. D. 563, also dis- 
 tinguished on the ground that the set- 
 off there asked for would have pre- 
 judiced the creditors of the estate of the 
 deceased mortgagor, which_ was insol- 
 vent. Sifton V. Coldwell, 11 M.R. 653. 
 
 6. Unliquidated damages — Uncon- 
 nected transactions — King's Bench Act, 
 R.S.M. 1902, c. 40, s. 39 (/). 
 
 A defendant, sued for a balance due 
 under an agreement of purchase of land 
 assigned to the plaintiff, cannot set off 
 against the debt a claim against the 
 assignor for unliquidated damages aris- 
 ing out of transactions wholly uncon- 
 nected with the purchase in question. 
 Section 39 (f) of The King's Bench Act, 
 R.S.M. 1902, c. 40, only permits, as 
 
 against an assignee, a set-off of anything 
 which would be recognised in a court 
 of equity as a proper subject of set-off, 
 and a covmterclaim for unliquidated 
 damages arising out of a cause of action 
 in no way connected with the claim 
 assigned is not a defence or set-off which 
 would I at any time have been recognised. 
 The Government of Newfoundland v. 
 The Newfoundland Ry. Co., (1888) 13 
 A.C. 199, distinguished. McMamts v. 
 Wilson, 17 M.R. 567. 
 
 jSee Banks and Banking, 5. 
 
 — COMPANT, I, 3. 
 
 — Costs, VII, 3; XI, 2, 3. 
 
 — Negligence, VII, 7. 
 
 — Principal and Agent, IV, 2. 
 
 SET-OFF OF COSTS. 
 
 See Practice, XXVIII, 30. 
 
 — Solicitor's Lien for Costs, 7. 
 
 SET-OFF OF VERDICTS. 
 
 See Warranty, 5. 
 
 SETTING ASIDE CROWN PATENT. 
 
 See Crown Patent, 4, 6. 
 
 SETTING ASIDE JUDGMENT. 
 
 See Attachment of Goods, 6. 
 
 — CouNTT Court, I, 6. 
 
 — Foreign Judgment, 10. 
 
 — Practice, XIX, 3; XX, B, 1, 3, 4, 5, 
 
 6, 7; XXVIII, 24. 
 
 — Prohibition, III, 4. 
 
 SETTING ASIDE ORDER. 
 
 See Capias, 4, 5. 
 
 — Conflict of Laws, 2. 
 
 — Costs, XIII, 23. 
 
 — Garnishment, I, 6; VI, 8. 
 
 — Practice, XX, C; XXIII, 4. 
 
1107 
 
 SETTING ASIDE PROCEEDINGS. 
 
 1108 
 
 SETTING ASIDE PROCEEDINGS. 
 
 See Election Petition, III, 2. 
 
 — Mortgagor and Mortgagee, V, 2. 
 
 — ■ Practice, XX. 
 
 SETTING ASIDE SALE. 
 
 See Mortgagor and Mortgagee, IV, 4. 
 
 SETTLING MINUTES OF 
 JUDGMENT. 
 
 See Phacticb, X, 2. 
 
 SHAREHOLDER. 
 
 See Scire Facias. 
 
 SHERIFF. 
 
 1. Fees, poundage, etc. 
 
 A sheriff having made a seizure, and 
 a claim having been made to the goods, 
 ■ an interpleader issue was directed. Sec- 
 urity not having been given, the sheriff 
 sold the goods. Before trial the plain- 
 tiffs abandoned and an order was made 
 for payment by the plaintiffs to the' 
 claimant and the sheriff of " their 
 oosts occasioned by said interpleader 
 order and interpleader issue.'' This order 
 was amended and the plaintiffs were 
 further directed to pay the sheriff's 
 possession money and other expenses 
 occasioned by the sale, and the costs of 
 the sale. 
 
 Upon appeal from the settlement of 
 the sheriff's account, 
 
 Held, 1. That the sheriff was not 
 entitled to poundage. 
 
 2. That the sheriff was entitled to 
 possession money and other expenses 
 by the terms of the orders,, which had 
 not been appealed. 
 
 3. That iinder the circumstances the 
 charge for possession money was not • 
 unreasonable ; nor was $2 a day too much 
 to pay to a man for keeping possession. 
 
 4. A charge of $2.40 for taking a man 
 out of possession was disallowed. 
 
 5. Adjournments of sale allowed at 
 fifty' cents each. Manitoba & N.W. Loan 
 Co. V. Routley, 3 M.R. 521. 
 
 2. Landlord and teaaxiX,— Execution 
 creditor — Rent — 8 Anne, c. 14, s. 1. 
 
 Where the landlord, under 8 Anne, c. 
 14, s. 1, makes a claim for rent as against 
 goods seized by the sheriff under an 
 execution and the sheriff sells the 
 goods for a sum not exceeding . the 
 landlord's clauq, and the execution cred- 
 itor claims the money in an action against 
 the sheriff, it is a sufficient answer to 
 the plaintiff's action to show that the 
 landlord has -a good claim to the money, 
 although it has not been paid over to 
 him. Lambert v. Clement, 11 M.R. 519. 
 
 3. Liability of sheriff for acts of 
 his bailifE — Satisfaction of judgment — 
 Executions Act, BjS.M. 1902,- c. 58, ss. 
 21, 25 — Credit sale by sheriff — Sah of 
 goods under Ji. fa. 
 
 1. Notwithstanding the provisions of 
 section 21 of The Executions Act, R.S.M. 
 1902, c. 58, a sale of goods by a sheriff's 
 baUiff under fi. fa. was, under the pecuhar 
 circumstances set forth in the judgment, 
 held to have been good, although made 
 immediately after seizure and without the 
 notice required by that section. 
 
 2. A sheriff is responsible for all money 
 reaUzed by his bailiff by a sale under 
 a fi. fa., though the money be stolen from 
 the bailiff as a result of his carelessness 
 and never comes to the sheriff's hands. 
 
 3. A seizure by a sheriff of sufficient 
 goods to satisfy a judgment in part will 
 be a discharge to the debtor as to such . 
 part. 
 
 4. ■V^^hen the goods seized are subject to 
 acha^itel mortgage the sale of the goods 
 themselves, instead of only the equity 
 of redemption, will he good unless ob- 
 jected to by the mortgagee. 
 
 5. It is not an absolute rule that a 
 sheriff's sale under execution must be 
 for ready money ; but, if the sheriff does 
 not comply with such rule, he will be 
 responsible for the money if he fails to 
 collect it. 
 
 6. The fact that the sheriff failed to 
 comply with section 25 of The Execu- 
 tions Act, by advertising the' amount 
 realized and keeping the money to be 
 distributed rateably, is no answer to 
 the defendant's claim to have such 
 amount credited . upon the execution 
 against him, when nearly three years 
 have elapsed and there is no evidence 
 that any other execution against the 
 defendant has been placed in the sheriff's 
 hands. Massey- Harris Co. v. MoUond, 
 15 M.R. 364. 
 
1109 
 
 SHERIFF. 
 
 1110 
 
 4. Mandamus compellipg sherifi to 
 execute writ. 
 
 Mandamus is not the proper proceeding 
 to compel a sheriff to execute a writ. 
 A motion for a rule should be made^ 
 Black V. Kennedy, T.W. 144. 
 
 6. Action for money had and re- 
 ceived by sheriff as such, for the use 
 of plaintiff — Money paid by debtor 
 to be applied on second execution, leaving 
 first unsatisfied — Priority of executions. 
 
 A debtor, against whom there were 
 several executions in the hands of a 
 sheriff, paid him a sum of money ex- 
 pressly to be a^jplied on the plaintiffs' 
 writ, which was not entitled to priority. 
 Afterwards, on the money being claimed 
 both by the plaintiffs and the first ex- 
 ecution creditor, the sheriff returned the 
 money to the debtor. 
 
 Held, that the plaintiffs were entitled 
 to recover the amount from the sheriff as 
 money had and received for their use. 
 Coburn v. McRobbie, 9 M.R. 375. 
 
 6. Negligence in not levying under 
 execution • — Sheriff hound to levy on 
 chattels though mortgaged — Sheriff bound 
 to see whether chattel mortgage valid, on 
 its face — Duty of sheriff as to threshing 
 grain seized in stack — Chattel mortgage — ■ 
 Affidavit of bona fides made by " account- 
 ant " of mortgagees. 
 
 In an action against a sheriff for not 
 levying under an execution, it appeared 
 that he had abandoned the seizure and 
 refused to do anything further on finding 
 that there were three mortgages on the 
 debtorj's goods and chattels, prior to 
 the execution ; being of opinion that the 
 aggregate amount apparently secured 
 by them would exceed what he could 
 realize by sale of the chattels after pay- 
 ment of expenses. 
 
 One of the mortgages had, in fact, 
 been satisfied and the sheriff could have 
 ascertained this on inquiry. Another 
 was not proved at the trial to be valid 
 under The Bills of Sale Act ; it was in 
 favor of the Canada North-West Land 
 Company, and the affidavit of bona fides 
 upon it was made by one Campbell, 
 who only described himself as " Account- 
 ant of the mortgagees," and there was no 
 other evidence that he was an agent of 
 the Company authorized to take the 
 same. 
 
 The debtor reaUzed out of his grain, 
 which might have been levied upon. 
 
 more than sufficient to satisfy both the 
 latter mortgage and the remaining valid 
 and unsatisfied mortgage besides the 
 plaintiffs' judgment. 
 
 Hdd, that the defendant was liable 
 for the full amount of the plaintiffs' claim 
 against the judgment debtor. 
 
 If for any reason of which the sheriff 
 has notice, or by reasonable enquiries 
 could discover, a chattel mortgage is 
 not entitled to priority over a writ of 
 execution in his hands, he cannot rely 
 on it as a justification for not levying 
 under the writ. 
 
 Per KiLLAM and Bain, JJ. (Dubttc, J. 
 dubitante). The sheriff could not rely on 
 the mortgage to the Canada North West 
 Land Company, as it was plainly invahd 
 unless Campbell was the agent of the 
 Company, and there was no evidence 
 that he was such agent. 
 
 Per Dubttc, J. The sheriff, having 
 seized grain in stacks, is not bound to 
 have it threshed and marketed, but may 
 sell it in the stacks; but, as no evidence 
 was given to show that such a sale would 
 have realized less than the actual value, 
 the Court cannot presume that it would, 
 although such would -probably be the 
 case. 
 
 It is clearly the sheriff's duty, notwith- 
 standing the use of the word " may " 
 in the statute, to seize and sell the equity 
 of redemption in mortgaged chattels 
 when such equity is valuable. Massey 
 Mfg. Co. V. Clement, 9 M.R. 359. 
 
 7. Wrongful seizure by — No inter- 
 ference with goods — Damage — Instruc- 
 tion^ by attorney — Power of. 
 
 Under an execution against B. the 
 sheriff seized goods claimed by the 
 plaintiff. The sheriff did not touch the 
 goods or leave any one in possession, 
 but merely took a list of them, told the 
 plaintiff not to remove them, and took 
 an undertaking from the plaintiff that he 
 would not remove them. The sheriff 
 interpleaded and the execution creditors 
 abandoned. The sheriff then (three or 
 four weeks after the seizure), gave notice 
 of abandonment to the plaintiff. 
 
 Held, 1. That there was no trespass 
 for which an action would lie. 
 
 2. An attorney has no implied author- 
 ity to give instructions to a sheriff to 
 seize any particular goods. 
 
 3. Taking part in interpleader pro- 
 ceedings is not a ratification by the 
 execution creditor of the seizure. 
 
1111 
 
 SHERIFF'S BAILIFF. 
 
 1112 
 
 Remarks ui)on the bona fides of a s^le 
 made to a hired man under suspicious 
 circumstances. Wallbridgey. Hall ; Wall- 
 bridge V. Yeomans, 4 M.R. 341. 
 
 See Chattel Mortgage, II, 2. 
 
 — Criminal Law, X, 3. 
 
 — Fi. FAi Goods. 
 
 — Garnishment, VI, 9. 
 
 — Interpleader, II; IV, 1; VIII; IX, 
 i 1, 4. 
 
 — Mandamus, 3, 6, 7. 
 — • Practice, III, 5. 
 
 — Replevin, 4. 
 
 — Solicitor, 9. 
 
 — Trespass and Trover, 2.- 
 
 SHERIFF'S BAILIFF. 
 
 See Public Officer. 
 — Sheriff, 3. 
 
 SHOPBREAKING. 
 
 See Criminal Law, IX, 2. 
 
 SHORT FORMS. 
 
 See Mortgagor and Mortgagee, III, 4< 
 
 SHORT NOTICE OF MOTION. 
 
 .See Practice, XIV, 2. 
 
 SHORTHAND— EVIDENCE IN. 
 
 See Criminal Law, XIII, 7; XVII, 18. 
 — Extradition, 3, 4. 
 
 SIDEWALKS. 
 
 See Negligence, IV, 3, 4. 
 
 SIGNATURE OF CONTRACT* 
 
 See Vendor and Purchaser, VI, 5. 
 
 SIGNATURE OF PARTY CHARGED 
 OR HIS AGENT. 
 
 See Vendor and Purchaser, VII, 9. 
 
 SLANDER. 
 
 Words capable of two construc- 
 tions — • Respective provinces of judge and 
 jury. 
 
 In an action for slander, if the words 
 used by defendant are capable of being 
 reasonably understood in a slanderous 
 sense, it should be left to the jury to 
 find whether or not they were so used, 
 and the plaintiff should not be non- 
 suited on the ground that the words 
 did not necessarily impute the commission 
 of a crime. 
 
 Ritchie v. Sexton, (1881) 64 L.T. 210, 
 and Simmons v. Mitchell, (1880) 6 A.C. 
 156, followed. Cameron v. Overend, 15 
 M.R. 408. 
 
 SLANDER OF REAL ESTATE. 
 
 Publication of statement that house 
 haunted — Damages — Statute of West- 
 minster II, 13 Ed. 1, c. 24. 
 
 The publication in a newspaper of a 
 statement that the plaintiff's house is 
 haunted is, under the Statute of West- 
 minster II, 13 Ed. 1, c. 24 <Bac. Ab. 
 vol. 1, 102), an actionable wrong if 
 special damages result, though there be 
 no actual malice or any intention to 
 injure the plaintiff or to depreciate the 
 value of the property. 
 
 Per Richards, J. A. The members 
 of the Court should, as educated men, 
 assume that there are not such things 
 as ghosts and, therefore, that the state- 
 ment published by defendants was neces- 
 sarily false. It sifiould also be presumed 
 that the reporter and the sub-editor who 
 were responsible for the publication of 
 the article, as educated men, knew that it 
 was false and, therefore, had no reason- 
 able justification or excuse for publishing 
 it. They thus rendered their employers, 
 the defendants, liable in damages for 
 the natural results of such publication, 
 though such results were not foreseen 
 by them. 
 
 The evidence showed that the plain- 
 tiff lost a sale of the house in consequence 
 of the publication and that , the house, 
 being vacant, was . damaged by crowds 
 
1113 
 
 SMUGGLED GOODS. 
 
 1114 
 
 resorting to it on account of the report 
 tjiat it was haunted, and the plaintifE 
 should be awarded $1,000 and costs. 
 
 Per Phippen, J. A., concurring with 
 Richards, J. A. The case falls within 
 the principle of Riding v. Smith, (1876) 
 1 Ex. D. 91, and Bmce v. Smith, 1 Fraser 
 (Court of Sessions Cases, Scotland) 327, 
 rather than within that other class of 
 cases where, on the ground of public 
 policy, or protection of property, or for 
 other sufficient reason, the Courts have 
 held honest statements to be lawful, 
 although occasioning damage to the 
 innocent. 
 
 Per Peedtte, J. A., dissenting. In 
 such a case the plaintiff must prove 
 that the statement is false, that it was 
 published maliciously and that special 
 damage resulted. 
 
 The statement can only be actionS,ble 
 if it was intended to be believed and was 
 believed by soine person who was in- 
 fluenced by it to the detriment of the 
 plaintiff : Langridge v. Levy, (1837) 2 M. 
 & W. at p. 531. But, if it was so repug- 
 nant to common sense and common 
 knowledge that no proof of its untruth 
 would be necessary, it is difficult to see 
 how any one could have been deceived 
 by it. The plaintiff failed to ' show 
 that the statement complained of was 
 wrongful and was made with the know- 
 ledge that it would cause, or was likely 
 to cause, injury to the plaintiff, or that 
 the defendants, in publishing it, intended 
 or contemplated any injury to the plain- 
 tiff or her property, and without such 
 evidence the plaintiff should not recover. 
 Intention to injure must be established 
 either directly or by reasonable in- 
 ference to support such an action : 
 Quinn v. Leathern, [1901] A.C. 495, at p. 
 524 ; Read v. Friendly Society, [1902] 
 2 K.B. 732, at p. 739. It is' clear that 
 the statement was only published as 
 an item of news, with no intention to 
 do any wrong to the plaintiff and without 
 any idea that the publication would 
 cause any damage to the plaintiff's 
 property. The plaintiff also failed to 
 prove that she sustained special damage 
 resulting directly from the pubUcation 
 complained of. The finding of the trial 
 Judge on this point and as to those parts 
 of the evidence which- should be believed 
 or disbelieved should not be interfered 
 with. It must be shown that an actual 
 sale was prevented. Evidence of opinion 
 to show a general depreciation of value 
 caused by the statement is not sufficient 
 
 in such a case when no lasting injury was 
 shown to have been caused. Nagy v. 
 Manitoba Free Press Co., 16 M.R. 619. 
 
 Affirmed. 39 S.C.R. 340. 
 
 SMUGGLED GOODS. 
 
 See Railways, III, 6. 
 
 SOLICITOR. 
 
 1. Attachment for contempt. 
 
 The Court has jurisdiction to issue an 
 attachment against an attorney for dis- 
 obeying a rule of Court by which he is 
 ordered to pay to his client the money 
 of the client. Re A. B., an Attorney, 3 
 M.R. 316. 
 
 2. Criminal oflence — Ruh to answer 
 charges — Indictable offence. 
 
 A rule wiU not be granted to compel 
 an attorney to answer charges if they 
 may be made the subject of an indict- 
 ment. Re R.A., an Attorney, 6 M.R. 398. 
 
 See, however. Re R.A., an Attorney, 
 6 M.R. 601. 
 
 3. Duty of solicitor on purchase of 
 mortgage — Acknowledgmjent by mort- 
 gagor — Production of title deeds. 
 
 S. claimed to be mortgagee of certain 
 lands and agreed to sell the mortgage to 
 the plaintiffs. The plaintiffs employed 
 the defendant to examine the title of 
 S. and prepare the necessary assignment. 
 Defendant passed the title, and took an 
 assignment of the mortgage, and upon 
 his report the plaintiffs made the pur- 
 chase. It afterwards transpired that 
 the mortgage was a forgery. 
 
 In an action for negligence, it appeared 
 that the defendant had not, before passing 
 the title, obtained an acknowledgment 
 from the mortgagor, of the amount 
 due upon the' mortgage ; and had not 
 required the production of the title 
 deeds of the property. The mortgage 
 was dated but a short time before the 
 assignment and was not due. 
 
 Held, 1. That acceptance of the title 
 without the mortgagor's certificate did 
 not constitute such .negligence as to 
 render the defendant liable. 
 
 2. That, notwithstanding the Regis- 
 try Act, it is as much as ever the duty 
 of a soUcitor to inquire for the title deeds, 
 and to insist upon their production 
 
.1115 
 
 SOLICITOR. 
 
 1116 
 
 unless , their non-production is . satis- 
 factorily accounted for ; and that upon 
 this ground the defendant was liable 
 for the amount paid by the pflaintiifs 
 and interest. Freehold Loan Co. v. Mc- 
 Arthur, 5 M.R. 207. 
 
 4. Misconduct of — Delivering up of 
 documents — Employment of attorney to 
 ■purchase land scrip. 
 
 5. employed. T., an attorney, to pur- 
 chase half-breed land scrip, and for that 
 purpose gave him $30. T. purchased 
 the scrip, and drew and got executed 
 an assignment thereof to S. When the 
 scrip became distributable, T. Kefused 
 to disclose to S the name of the half- 
 breed from whom he had bought the 
 scrip, and also refused to produce the 
 assignment. He further proctired the 
 half-breed to apply for and obtain the 
 scrip; which he afterwards sold without 
 accounting to S. 
 
 Held, that the transaction for which 
 T. had been employed was one which 
 required legal knowledge to complete 
 it by drawing a conveyance ; that, there- 
 fore, he had been employed in his pro- 
 fessional capacity, and was liable to the 
 summary jurisdiction of the Court for 
 misconduct in the transaction. 
 
 Held, also, that if he had been in pos- 
 session of the scrip at the time of the 
 appUcation, the Court would have ordered 
 him to deliver it to S., but on this applica- 
 tion he could only be ordered to refund- 
 the money originally entrusted to him, 
 with interest, as the loss of the client 
 on the land was unliquidated; Re 
 Thibeaudeau, T.W. 149. 
 
 5. Striking o£E the Rolls — Striking 
 off the roll of barristers — Law Society Act, 
 B.S.M., 1902, c. 95, s. 74. 
 
 An order was made that the attorney 
 in this case should be struck off the roll 
 of attorneys ; but this action was taken 
 in consequence of his conduct in the man- 
 agement of a case in which he had acted 
 as an attorney and not as a barrister. 
 
 Held, that the Court could not strike 
 his name off the barrister's roll. Be J. 
 B., an Attorney, 6 M.R. 19, followed. 
 
 It seemed an anomaly that a man un- 
 worthy to remain on the one roll could 
 be left on the other, but the opinion of 
 the Court was that under the statute, as 
 it was worded, it must be so. Re B. A., 
 an Attorney, 11 C.L.T. Occ. N. 208. 
 
 6. Striking off the Rolls— Delay- 
 Civil action pending. 
 
 A delay of six months is not a bar to 
 a motion to strike off the rollSj where an 
 unsuccessful motion for an order to 
 compel the attorney to answer had mean- 
 while been made. 
 
 The pendency of civil proceedings 
 upon a cause of action arising out of 
 the same matters is not an answer to 
 a motion to strike off. 
 
 Nor is the fact that the matter com- 
 plained of involves a criminal charge. 
 Re B. A., an Attorney, 6 M.R. 398, 
 commented on. 
 
 The charges being denied, a reference 
 to enquire and report was ordered. Re 
 R. A., an Attorney, 6 M.R. 601. 
 
 7. Striking barrister and attorney 
 oft the Rolls — • Non-payment of money. 
 
 An attorney will not be struck off the 
 roUs for non-payment of money riierely. 
 
 Whether the Court has jurisdiction 
 to remove attorneys apart from the 
 Provincial Statute. Qucere. 
 
 A client left with an attorney a mort- 
 gage for collection, and also a discharge 
 to be deUvered over upon pajonent. 
 The attorney received the money and paid 
 to the client a portion of it, telling him 
 from time to time that that sum was all 
 that he had received. Discovery of 
 the truth was not made until after the 
 attorney had left the country the follow- 
 ing year. 
 
 Held, that this was misconduct " in 
 the discharge of his duties as an at- 
 torney." 
 
 The attorney had also received payment 
 on behalf of mortgagees, for whom he 
 was not entitled to act ; the mortgagor 
 believing that he was so entitled. The 
 attorney paid over a portion of the 
 money only. 
 
 Held, that he should be struck off the 
 attorney's roll, but not off the barrister's 
 as he had done nothing discreditable 
 in the discharge of that office. Re J, 
 B., an Attorney, 6 M.R. 19. 
 
 But see amendment to Law Society Act, 
 R.S.M. 1902, c. 95, s. 74. 
 
 Distinguished. Re P.E.H., 22 M.R. 
 746. 
 
 8. tTndertakihg of — Breach — Order 
 — Disobedience — Attachment — Summary 
 jurisdiction of Court. 
 
 An attorney, having undertaken to 
 pay the clerk of the Court certain fees 
 
1117 
 
 SOLICITOR AND CLIENT. 
 
 1118 
 
 for stamps furnished to him upon the 
 undertaking and used by him in proceed- 
 ings in the Court, and having failed in 
 his undertaking, was ordered to pay 
 the amount. On failure to obey the 
 order, the Court directed an attachment 
 to issue against him for contempt. 
 
 Where an attorney is employed in a 
 matter wholly unconiiected with his 
 professional character, the Court will 
 not entertain a summary application 
 against him for breach of duty; but, 
 where the presumption is that he was 
 employed on account of his professional 
 character, he is liable to the summary 
 jurisdiction of the Court. Re Osier, 
 T.W. 205. 
 
 9. Undertaking of -^ Summary juris- 
 diction. 
 
 I An attorney having an execution in 
 the sheriff's hands, and the sheriff re- 
 quiring security before seizure, the at- 
 torney's partner wrote to the sheriff 
 agreeing to indemnify him. The sheriff 
 seized, was sued, and judgment went 
 against him. Upon a summary applica- 
 tion to enforce the undertaking, 
 
 KM, 1. That the undertaking was 
 that of the writer personally. 
 
 2. That it was given in a professional 
 capacity and might be summarily en- 
 forced. 
 
 3. But that, the sheriff having acted 
 improperly in the seizure, and so incurred 
 a greater Uability than that against 
 which he was indemnified, he should be 
 left to his action. iJe McPhillips, an 
 Attorney, 6 M.R. 108. 
 
 See Appeal from Cotjnty Cotjrt, V, 1. 
 
 — Breach or Trust. 
 
 — Costs, IX. 
 
 — • MXTNICIPALITT. VI. 
 
 ^ Practice, XII, 1; XVI, 9; XX, A, 2; 
 XXVIII, 8. 
 
 — Sheriff, 7. 
 
 SOLICITOR AND CLIENT.. 
 
 I. Agreements Between. 
 II. Taxation of Costs Between. 
 
 III. MiSCELLANEOTJS CaSES. 
 
 I. Agreements Between. 
 
 1. Agreement that attorney not 
 to account for, moneys received — 
 
 Business done before a magistrate. 
 
 An attorney was employed to conduct 
 the entire defence of a prisoner. He 
 
 appeared upon the preliminary investi- 
 gation before a police magistrate. He 
 received money from the prisoner. Upon 
 an application for the delivery of his bill 
 he swore that it had been agreed that he 
 was to use the money in procuring the 
 prisoner's release, but was to keep no 
 account of the money paid out. This 
 the client denied. ' 
 
 Held, 1. That the attorney should 
 deliver an ordinary biU of costs. 
 
 2. That such an agreement must be 
 in writing. Re A., an Attorney, 6 M.R. 
 181. 
 
 2. Agreement respecting coaXi— Mis- 
 representation of fact — Agreement pro- 
 cured through pressure — The Law Society 
 Act, R.S.M., L. 83, s. 68 — Interest 
 upon costs — Consideration. 
 
 Section 68 of The Law Society Act, 
 R.S.M., c. 83, making it legal for an 
 attorney or solicitor to bargain for re- 
 muneration of his service' as such for 
 a client in any way that may be agreed 
 on, instead of having his costs taxed in 
 the usual way, does not preclude the 
 Court from exercising the ordinary juris- 
 diction of a Court of equity to determine 
 the vaUdity of any such agreement 
 upon equitable principles, although it 
 contains no express provisions, as the 
 correspondiiig Imperial and Ontario Stat- 
 utes do, for enquiring into the fairness 
 or reasonableness of such an agreement 
 and for sstting it aside if found unfair 
 or unreasonable. 
 
 In the course of the negotiations be- 
 tween the solicitor and the client leading 
 up to the making of the impeached 
 agreement, the solicitor had in a letter 
 made a statement that the amount of 
 his disbursements in the litigation had 
 been considerably in excess of the actual 
 amount, and had also strongly intim- 
 ated the probability that he would be 
 compelled to dispose of a certain judg- 
 ment, in which his clients were largely 
 interested and which had been assigned 
 to him, upon terms which might have 
 left Uttle or nothing for them unless they 
 would provide him with funds to carry 
 on the litigation. 
 
 Held, without imputing 'to the soU- 
 citor an intentional mis-statement of 
 the amount of his disbursements for 
 the purpose of procuring the arrangement 
 or the intention to hold out the prospect 
 of the loss of the claim as a threat for 
 the purpose of securing an undue advan 
 tage, that the mis-statement and th 
 
1119 
 
 SOLICITOR AND CLIENT. 
 
 1120 
 
 threats -were such as to render the clients 
 incapable of acting freely and inde- 
 pendently and, therefore, that the agree- 
 ment should be set aside. 
 
 Forbearance to sue may be a suflScient 
 consideration for an agreement by a 
 client to pay interest to his solicitor upon 
 an amount agreed on as due for costs, 
 although there is no legal liability for 
 such interest,* and although the client 
 acted without independent advice. Pres- 
 ton V. Nugent, 13 M.R. 511. 
 
 3. Agreement to share in amount 
 to be recovered by suit — Law Society 
 Act, R.S.M., 1902, c. 95, s. 65 — Main- 
 tenance and champerty — What criminal 
 laws of England introduced into Manitoba 
 by section 12 of the Criminal Code. 
 
 Maintenance and champerty had be- 
 come obsolete as crimes in England in 
 1870, and section 12 of the Criminal 
 Code declaring that the criminal law of 
 England as it was on 15th July, 1870, 
 in so far as it is applicable to the province 
 of Manitoba*** shall be the criminal 
 law- of the Province of Manitoba, did not 
 introduce the law of maintenance and 
 champerty considered as crimes -into 
 that Province ; consequently section 65 
 of the Law Society Act, R.S.M. 1902, 
 c. 95, allowing an attorney or solicitor 
 to make an agreement with a client to 
 be paid for his services by receiving 
 a share of what might be recovered in 
 an action, is not ultra vires of the Pro- 
 vincial Legislature as trenching upon 
 or intended as a repeal of any provision 
 of the criminal law. Such an agreement, 
 therefore, may be enforced in our courts. 
 
 Meloche v. Deguire, (1903) 34 S.C.R. 
 24 ; Hopkins v. Smith, (1901) 1 O.L.R. 
 659, and Briggs v. Flentot, (1904) 10 
 B.C.R. 309, held not applicable in Man- 
 itoba. Thomson v. Wishart, 19 M.R. 
 340, 
 
 4. Special agreement as to costs — 
 
 Stay of proceedings pending taxation- 
 King's Bench Act, Rules 965-967—6 & 
 7 Vic. (Imp.) c. 73, s. 37 — Taxation of 
 costs. 
 
 In an action against a firm of solici- 
 tors for the recovery of money collected 
 by them for the plaintiff, the solicitors 
 claimed the right to retain the monefy 
 for extra costs between solicitor and 
 client in proceedings which they had 
 conducted for the plaintiff. Plaintiff, 
 however, alleged that there had been a 
 
 special agreement precluding any such 
 claim. 
 
 Held, that an order for taxation of 
 the defendants' bill of costs should not 
 have contained a stay of proceedings 
 in the plaintiff's action, as he was entitled 
 to have the question of the existence 
 of the alleged agreement determined by a 
 trial in the ordinary way. 
 
 Held, also, that under Rules 965-967 
 of The King's Bench Act and 6 & 7 Vic. 
 (Imp.) c. 73, s. 37, such order for tax- 
 ation, obtained on the application of the 
 defendants, should not have contained 
 a clause directing the client to pay the 
 amount, if any, found due. 
 
 Re Debenham and Walker, [1895] 2 Ch. 
 430, followed. 
 
 QuoEre, whether there should have 
 been any order for taxation of defendants' 
 bill before the other questions raised 
 had been decided at the trial : Re Beale, 
 (1849) 11 Beav. 600. Myers v. Munme, 
 16 M.R. 112. 
 
 II. Taxation op Costs Between. 
 
 1. Review of Taxing master's report 
 
 — -Discretion of Master — Solicitor acting on 
 agency terms for solicitors in another Pro- 
 vince—Solicitors' Act, & & 7 Vic, c. 73, 
 {Imp.) 
 
 This was an appeal from the taxing 
 master's certificate upon a taxation of 
 a bill of costs between soUcitor and 
 client. The soUcitor received his in- 
 structions from a firm of solicitors in 
 Toronto acting for the cUent, a company 
 whose head office was in Toronto. 
 
 The solicitor here sent to the solicitors 
 in Toronto one-half the amount charged 
 as fees on the basis of having attended 
 to the business on agency terms for the 
 Toronto solicitors. 
 
 Held, that, although the Toronto 
 soUcitors might not have been entitled 
 as between themselves and the company 
 to derive a profit from the' transaction 
 and such an allowance to them might 
 be a breach of the Law Society Act, 
 yet, since the Winnipeg solicitor had 
 chosen to send them the money for 
 themselves, he could not "Subsequently 
 insist that it was received by them 
 for the company. 
 
 More than one-sixth of the whole 
 bill rendered was taxed oft, and the 
 Master allowed the costs of the reference 
 to the company as against the soUcitor. 
 
 Held, that this was right, as the Soli- 
 citors' Act, 6 & 7 Vic, c. 73, s. 37, was 
 
1121 
 
 SOLICITOR AND CLIENT. 
 
 1122 
 
 in force in Manitoba, and had not been 
 affected by Rules 926 and 958 of the 
 Queen's Bench Act, 1895. 
 
 The taxing master had refused to give 
 effect to the contention of the client 
 as to certain items objected to on the 
 ground that the costs were incurred 
 through negligence and a mistake of 
 law of the solicitor. 
 
 Held, that the 'finding and discretion 
 of the taxing master should not be in- 
 terfered witn, unless' it is clearly shown 
 that he has erred in weU established 
 points of law or has been mistaken as 
 to some material facts upon which he 
 has based his finding. 
 
 Decision of Dubtjc, J., in 1889, as 
 varied by the FuU Court. 
 
 In re H., a Solicitor, 19 C.L.T. Occ. 
 N. 290, 20 C.L.T. Occ. N, 140. 
 
 2. When referred for taxation. 
 
 A solicitor rendered a bill containing 
 charges for conveyancing and also a 
 lump charge of $1,000, commission on 
 a purchase. He afterwards divided the 
 account by rendering two separate bills, 
 one containing the conveyancing items 
 and the other the charge for commission. 
 He then brought this action to recover 
 the amount of the two bills, claiming 
 the commission under the common counts. 
 
 The defendant applied to have both 
 bUls referred for taxation. 
 
 Held, (reversing the decision of Tayloh, 
 C. J.) 
 
 1. When a solicitor's bUl contains 
 one taxable item the whole biU is taxable. 
 
 2. That the first bill was clearly tax- 
 able, and the statute can not be evaded 
 by the device of dividing the one bill 
 into two. 
 
 3. When there is no prescribed tariff 
 the taxing officer must inform himself 
 in the best way he can as to the proper 
 amount to aUow. Howard v. Burrows, 
 7 M.R. 181. 
 
 III. MisoBLLANEorrs Cases. 
 
 1. Collusive settlement of suit with 
 plaintifi without the knowledge of 
 his solicitor — lAahilily of defendant for 
 costs of plaintiffs solicitor in such case. 
 
 If the defendants make a coUusivp 
 settlement of a suit with the plaintiff 
 without the knowledge of the plaintiff's 
 soUcitor and with the object of depriving 
 the latter of his costs, he is entitled, on 
 application to a Judge in Chapabers, to 
 
 an order that the defendants should pay 
 Ills posts 
 
 Brunsdon v. Allard, (1859) 2 E. & E. 
 19 ; Price v. Crouch, (1891; 60 L.J.Q.B. 
 767, and Be Margetson and Jones, [1897] 
 2- Ch. 314, followed. Stewart v. HaU, 
 17 M.R. 653. 
 
 2. Multifariousness. 
 
 A bill by a chent against solicitors 
 for an account, and to set aside a con- 
 veyance of land made by the chent, at 
 the instance of the soHcitors, to the wife 
 of one of them, is multifarious. Haffield 
 V. Nugent, 6 M.R. 547. 
 
 3., Parliamentary agent — Proceedings 
 before the Legislature — Taxation of costs- 
 Practice. 
 
 Held, that, where a soUcitor has ob- 
 tained from the Speaker of the Legislative 
 Assembly authority to act in any matter 
 as a parhamentary agent, he can recover 
 the amount due him for services, without 
 being obliged to observe all the require- 
 ments of the Enghsh Act. Kennedy v. 
 Austin, 1 M.R. 362. 
 
 4. Privileged communications be- 
 tween soUcitor and client. 
 
 Certain questions put to the defendant 
 as_ to communications between himself 
 and his attorneys with a view to shewing 
 his responsibility for their action in 
 issuing and enforcing afi. fa. goods, 
 
 Held, to be privileged. Dederick v. 
 Ashdown, 4 M.R. 174. 
 
 6. Bight of solicitor trustee to costs 
 as against the trust estate — The 
 
 Manitoba Trustee Act, R.S.M., c. 146, 
 s. 40 — Lien of solicitor under Imperial 
 Act, 23 & 24 Vic., c. 127. 
 
 Held, that, notwithstanding the pro- 
 vision in section 40 of The Manitoba 
 Trustee Act, R.S.M., c. 146, the rule of 
 English law that a sole trustee who is a 
 soUcitor cannot charge against the trust 
 estate profit costs for acting as sohcitor 
 for the estate, still prevails to the extent 
 that he is not entitled as of right to have 
 such costs taxed to him as a soUcitor. 
 
 ' Meighen v. Buell, (1897) 24 Gr. 503, 
 foUowed. 
 
 Crqdock v. Piper, (1850) 1 Mac. & G. 
 664, distinguished. 
 
 Held, also, that neither the Imperial 
 Act, 23 & 24 Vic, c 127, nor the Ontario 
 Rule 1129 foimded upon it, gives a 
 soUcitor an absolute right to a Uen for 
 his costs upon property recovered or 
 
1123 
 
 SOLICITOR TRUSTEE. 
 
 1124 
 
 preserved through litigation, but only 
 a discretionary power in the Court to 
 charge the property. Turriff v. McDon- 
 ald, 13 M.R. 577. 
 
 6. Substitutional service of notice 
 of motion to solicitor to refer bis 
 bill of costs to taxation— Coste—raa;- 
 otion — King's Bench Act, Rule 368. 
 
 Under Rule 368 of The King's Bench 
 Act, R.S.M. 1902, c. 40, an order may be 
 made for service substitutionally on a 
 soMcitor, who has left the jurisdiction 
 and cannot be found, of a notice of 
 motion for an order to refer his bill of 
 costs, rendered, to taxation. Re Reid Estate, 
 17 M.R. 652. 
 
 See CoNSTHTJCTivE Notice. 
 
 — Costs, XIII, 4. 
 
 — Fraudulent Pkefeeence, III, 6. 
 
 — Mortgagor and Mortgagee, V, 3. 
 
 — Practice, XXVIII, 28. . 
 — ■ Scandalous Matter. 
 
 — Solicitor's Lien for Costs, 2. 
 
 SOLICITOR TRUSTEE. 
 
 See Solicitor and Client, III, 5. 
 
 SOLICITOR'S LIEN FOR COSTS. 
 
 1. Attachment of goods — Charge on 
 ■property recovered or preserved for costs 
 of proceedings — 23 ^ 24 Vic._ {Imp.) 
 c. 127, s. 28 — Attachment — King's 
 Bench Act, R.S.M. 1902, c. 40, Rule 852. 
 
 Notwithstanding the wording of Rule 
 852 of The King's Bench Act, which pro- 
 vides that, in cases of attachment, " the 
 proceeds of the property and effects 
 attached in the sheriff's hands shall be 
 rateably distributed among such plain- 
 tiffs as shall in due course obtain judgment 
 and execution. . . .in proportion to 
 the sums actually due upon such ex- 
 ecutions," an order may be made under 
 section 28 of the Solicitors' Act, 23 & 
 24 Vic. (Imp.), c. 127, giving the solicitor 
 for the plaintiff, in whose action the order 
 for attachment was made, a charge upon 
 the net proceeds of the attached property 
 in the sheriff's hands for the amount 
 of his taxed costs, charges and expenses 
 in the action, including the cost of inter- 
 pleader proceedings in which claims to 
 the goods are successfully resisted, in 
 
 priority to the claims of other execution 
 creditors, when it appears that such 
 proceeds have been " preserved " by 
 the labor, time and money expended 
 by the solicitor within the meaning of 
 that section. 
 
 Darling v. Smith, (1884) 10 P.R. 360, 
 followed. 
 
 Richards, J., dissented. 
 
 It is quite immaterial that some of 
 the parties for who§e benefit the property 
 has been recovered or preserved are not 
 parties to the action. 
 
 Greer v. Young, (1883) 24 Ch. D. at ■ 
 p. 549 ; Emden v. Carte, (1882) 16 Ch. 
 D. 311, and Leacock v. McLaren, (1894) 
 9 M.R. 599, followed. Valentinuzsi v. 
 Lenarduzzi, 16 M.R. 121. 
 
 2. Jurisdiction of Judge in Cham- 
 bers — Charging order — tr-eservation of 
 fund hy solicitor — Attorneys' and Solid- 
 tors' Act, 23 & 24 Vic. (Imp.) c. 127, n. 
 28. 
 
 A Judge in Chambers has no juris- ^ 
 diction to make an order, under The ' 
 Attorneys' and Solicitors' Act, 23 & 24 
 Vic. (Imp.), c. 127, s. 28, charging a 
 fund for the benefit of a solicitor in 
 respect of his costs for services in pre- 
 serving it. 
 
 [Decided in 1893, before the passing 
 of The Queen's Bench Act, 1895.] 
 
 Leacock v. McLaren, 14 C.L.T. Occ. N. 
 10. 
 
 3. Limitation of actions — Charging, 
 order — Statute of Limitations — Defend- 
 ant out of jurisdiction — Application by 
 clients to tax solicitor's costs. 
 
 Petition by a solicitor for a charging 
 order on a fund in court for . his costs 
 for services rendered two years pre- 
 viously to the four parties entitled to 
 the fund, who objected that the claim 
 was barred by the Statute of Limitations. 
 
 Held, as to two of the parties, that they 
 could not rely on the Statute because 
 they had, four years before, taken out 
 an order to tax the same costs, and, as 
 to the other two, as they had never been 
 residents of Manitoba, the Statute had 
 never begun to run in their favor : Bann- 
 ing on Limitations, p. 86. Shields v. 
 McLar&n, 13 C.L.T. Occ. N. 418. 
 
 4. Practice — Charging order for 
 costs — Before what Judge to be heard — 
 Death of Judge who heard cause — Affidavit 
 — Alteration in jurat — Three styles of 
 cause — Surplusage — Practicel 
 
1125 
 
 SOLICITOR'S LIEN FOR COSTS. 
 
 1126 
 
 A solicitor, having taxed his costs, 
 presented a petition lor a charging order 
 in ,the original suit under 23 & 24 Vic, 
 c. 127 (Imp.). Several preUmipary ob- 
 jections to the petition were takeii. 
 
 Held, that the statute contemplates 
 that the Judge, before whom the cause in 
 which the costs were earned was heard, 
 should hear the petition; but, the Judge 
 being dead, and the cause having been 
 reheard before three Judges, of whom the 
 Judge before whom the petition came on 
 was one, under these peculiar circumstan- 
 ces, the objection of want of jurisdiction 
 should not be sustained. 
 
 Held, also, that an objection that 
 there was an alteration in the jurat of 
 an affidavit filed in support of the petition 
 should be overruled. The rule in equity 
 on this point is not so strict as at common 
 law. And, in any event, the Court would 
 allow the affidavit to be re-sworn. 
 
 The petition was in the style of cause 
 of the original suit, and also, " In the . 
 matter of T.S.K. a soUcitor," and " In 
 the matter of the Imperial Statute 
 passed in the twenty-third and twenty- 
 fourth years of the reign of Her Majesty 
 Queen Victoria, and chaptered one hun- 
 djed and twenty-seven." 
 
 Held, that, as the petition was in the 
 proper style of cause of the original suit, 
 the other two headings,, even if im- 
 necessary, might be considered as sur- 
 plusage. And the petition should not 
 be dismissed on that ground. 
 
 The petition shewing that other parties 
 were interested, at the request of the 
 petitioner, they were ordered to be served. 
 Leacock v. McLaren, 8 M.R. 579. 
 
 5. Priority as against fund in court 
 
 — Lien on fund in court for costs of re- 
 covering or preserving the fv,nd — Charging 
 
 The lien of a solicitor for his costs of 
 recovering or preserving a fund in court 
 for his client wiU be given priority over 
 a charging order on the fund obtained 
 by a creditor of the client. Coupez v. 
 Lear, 16 W.L.R. 401. 
 
 6. Property recovered or preserved — 
 
 Solicitors' Act, Imp. Stat., 23 cfc 24 Vic., 
 c. 127. 
 
 The petitioner had been retained by 
 John Shields, one of the defendants in 
 Leacock v. McLaren, which had been 
 brought for the purpose of winding up 
 the partnership composed of the plamtiff 
 and defendants in that suit, and he had 
 
 conducted it to the termination of an 
 appeal to the Supreme Court of Caruida, 
 whose decision was in favor of his client, 
 and resulted in establishing his rights 
 as a partner in certain moneys in court 
 and in certain other assets of the partner- 
 ship. The other defendants then ap- 
 pealed to the Privy Council, but, pending 
 that appeal, a settlement \vas arrived 
 at between the parties without the 
 knowledge of the petitioner (Shields 
 having retained another soUcitor in his 
 place), by which the moneys in coiirt 
 were all applied in payment of the debts 
 of the firm. Meantime, John Shields . 
 married, and made a settlement on his 
 wife of all his interest in the partnership 
 assets, and the trustee of the settlement, 
 WiUiam Shields, the plaintiff in the suit 
 of Shields v. McLaren, afterwards com- 
 menced that suit for the purpose of 
 working out the. settlement of the former 
 suit. In this latter suit, the old partner- 
 ship was wound up, the assets reaUzed, 
 and a considerable siun of money was 
 paid into court. 
 
 Held, that the petitioner was entitled 
 to a lien on this money for his unpaid 
 costs of the first suit, as being property 
 preserved within the meaning of the 
 Solicitors' Act, Imp. Stat., 23 & 24 Vic, 
 c 127, but subject to the prior hen of 
 the solicitor for William Shields, not- 
 withstanding that the money was actually 
 realized in another suit; and that the fact 
 of his client having parted with his 
 interest before the commencement of 
 the second suit, was no objection 
 to his claim. 
 
 Berrie v. Howitt, L.R. 9 Eq. 1, not 
 followed. 
 
 Foxon V. Oascoigne, L.R. 9 Ch. 657, 
 distinguished. Leacock v. McLaren ; 
 Shields v. McLaren, Re Kennedy, 9 M.R. 
 599. 
 
 7. Set-off of costs. 
 
 The plaintiffs, creditors of the defend- 
 ant E. D., having brought suit in equity 
 to set aside a judgment recovered against 
 him by his wife, the co-defendant, as 
 fraudulent and void, the biU was dis- 
 missed with costs. In settling the min- 
 utes of the decree, the plaintiffs asked , 
 to have their judgment, obtained after 
 the fiJing of the bill, set off pro tank) 
 against the costs payable by them to 
 E. D., who had defended separately 
 from his wife. This was opposed by his 
 solicitor on the ground that his costs 
 were unpaid. 
 
1127 
 
 SOUTH AFRICAN LAND WARRANTS. 
 
 ■1128 
 
 Held, following Webb v. Mc Arthur, 4 
 Ch. Ch. 63, and Colletl v. Preston, 15 
 Beav. 458, that the soMcitor's hen could 
 not be interfered with in such a case 
 and the application was refused. 
 
 Semble, however, that, when costs in a 
 particular suit are payable to and by 
 different parties to it, there may be a 
 set-off and no question of the sohcitor's 
 hen will be entertained to prevent it. 
 Thompson v. Didion, 10 M.R. 301. 
 
 See Assignment for Benefit of Cbbd- 
 
 ITOEB, 5. 
 
 , — Set-off, 2. 
 — Solicitor and Client, III, 5. 
 
 SOUTH AFRICAN LAND WARRANTS. 
 
 Volunteer Bounty Act, 7 & 8 Edw. 
 VII, c. 67 (D) — County Courts Act,- 
 R.S.M. 1902, c. ^S— Attachment. 
 
 A warrant or certificate granted under 
 7 & 8 Edward VII, c. 67 (D), to a 
 volunteer as a reward for services in 
 the South African War and entitUng 
 him to select and obtain a grant of land 
 from the Dominion Government, is in 
 the nature of a document of title to 
 land, and cannot, therefore, be seized 
 under a writ of attachment from a county 
 court. Inter-Ocean Real Estate Co. v. 
 White, 20 M.R. 67. 
 
 SPECIAL DAMAGE. 
 
 See LiBEii, 1, 7. 
 
 — Practice, XVI, 10. 
 
 SPECIAL INDORSEMENT. 
 
 See Practice, XI, 1. 
 
 SPECIAL JURY. 
 
 See Jury Trial, I, 11. 
 — Pleading, XI, 19. 
 — ■ Verdict of Jury, 3. 
 
 SPECIFIC OR PECUNIARY LEGACY. 
 
 See Will, II, 1, 2. 
 
 SPECIFIC PERFORMANCE. 
 
 1. Damages — Fusion of Law and 
 Equity. 
 
 The defendant agreed to sell to the 
 plaintiff certain lands by a memorandum 
 in -writing which the plaintiff registered. 
 Subsequently the defendant sold at an 
 advanced price to H., who sold to another. 
 On a bill filed for specific performance, 
 or damages, after the defendant had sold 
 to H., 
 
 Held, that the Court could give reUef 
 by awarding damages to the plaintiff 
 without compeUing 'him to commence an 
 action at law. - i 
 
 The Court of Queen's Bench possesses _ 
 full power to give appropriate relief 
 without regard to the form in which the 
 action or suit is brought. Boultbee v. 
 Shore, T.W., 376. 
 
 2.' Decree for specific performance 
 refused, taut without prejudice to 
 remedy at law. 
 
 Bill filed for foreclosure. Defendant set 
 up a special agreement postponing time 
 for maturity of mortgage, and a reduc.ion 
 of the amount of principal. This agree- 
 ment was lost, and the only evidence 
 of its existence was that of an alleged 
 compared copy and the parol evidence 
 of several witnesses. Defendant asked 
 specific performance of this agreement. 
 At the hearing Taylor, J.,i held that the 
 agreement set up by defendant had 
 never been executed. 
 
 On re-hearing, Wallbridge, C. J., 
 deh-vered the judgment of the Full 
 Court, and held that the agreement 
 set up by defendant had not been proved 
 with that certainty and clearness which 
 was required in a suit for specific per- 
 formance, but remarked in his judgment 
 that the defendant might sue at law for 
 damages. 
 
 The minutes of the order on re-hearing 
 affirming the decree of Taylor, J., as 
 settled by the registrar, contained a 
 proviso that the defendant might pursue 
 his remedy at law for damages. 
 
 The judgment of Taylor, J., in Kelly 
 V. Mc]K.mzie, 2 M.R. 203, was cited, 
 in which an apphcation to vary the ori- 
 ginal decree was successfully made, 
 some time after re-hearing, , and to insert 
 a similar condition to that asked for in 
 this case. 
 
 Wallbridge, C. J., held that the 
 minutps should stand as settled by the 
 registrar. Tail v. Calloway, 2 M.R. 312. 
 
1129 
 
 SPEEDY TRIAL. 
 
 1130 
 
 3. ETidence — Certainty of proof. 
 
 The certainty of proof in a suit for 
 specific performance must be greater than 
 in an action for damages. Tait v. Callo- 
 way, 2 M.R. 289. 
 
 See Agreement fob Sale of Land, 1. 
 
 — Banks and Banking, 8. 
 
 — Contract, I, 1; XIII, 1; XV, 14. 
 
 — Indemnity, 1. 
 — ■ Infant, 1. 
 
 — Jurisdiction, 2. 
 
 — Misrepresentation, IV, 1. 
 -^ Mistake, 3. 
 
 — ■ Statute of Frauds, 1. 
 
 — Vendor and Purchaser, II, 3, 7; 
 
 IV, 1, 3, 5; V, 1; VL 
 
 SPEEDY TRIAL. 
 
 See Criminal Law, XI. 
 
 SPUR TRACK FACILITIES. 
 
 See Railways, XI, 4. 
 
 SQUATIER. 
 
 jSee Fixtures, 1. 
 
 STABLE KEEPER. 
 
 See Negligence, VII, 6. 
 
 STATEMENT OF CLAIM. 
 
 See Practice, XXVII, 1. 
 
 STATEMENT OF RESIDENCE. 
 
 See Practice, XXVIII, 15. 
 
 STATUTE OF FRAUDS. 
 
 1. Agre.ement of sale of land — 
 
 Name of purchaser not stated in memor- 
 <indum — Spedfic performance. 
 
 1. A note or memorandum in writing 
 containing an agreement for the sale of 
 land 'must, to satisfy the Statute of 
 Frauds, name both the contracting par- 
 ties or describe them so that they can be 
 ascertained without extrinsic parol evi- 
 dence, and it is not sufficient that the: 
 agent of the intending purchaser is 
 named. 
 
 Potter V. Duffield, (1874) L.R. 18 Eq. 
 4 ; White v. Tomalin, (1891) 19 O.K. 
 513, and Williams v. Jordan (1877) 6 
 Ch. D. 517, foUowed. 
 
 2. An intending purchaser of land, 
 who has been guilty of laches, bad faith 
 and default for a considerable time in 
 payment of the cash stipulated for, 
 disentitles himself to the exercise of the 
 judicial discretion to grant specific per- 
 formance in his favor : Gough v. Bench, 
 (1884) 6 O.R. 699, Coventry v. McLean, 
 (1893) 22 O.R. 1, and Harris v. RoUnson, 
 (1892) 21 S.C.R. 391, foUowed. Mahef 
 V. Penskalski, 15 M.R. 236. 
 
 2. Agreement of sale of land— itfera- 
 
 orandum in writing. 
 
 A writing signed by defendant not 
 under seal agreeing to sell a parcel of 
 land for 12000 on terms stated and 
 acknowledging the receipt of a cheque 
 for $100 deposit on same, but not men- 
 tioning the name of any person as pur- 
 chaser or containing anything to in- 
 dicate who the purchaser is, is not a 
 sufficient memorandum in writing to 
 bind the defendant un'der the Statute 
 of Frauds ; and, if the person whose 
 name is signed to the cheque is not acting 
 as the agent of the purchaser in the 
 transaction, the cheque and the agreement 
 do not together constitute such sufficient 
 memorandum. 
 
 Pearce v. Gardner, [1897] 1 Q.B. 688, 
 distinguished. Grant v. Reid, 16 M.R. 
 527. 
 
 3. Description of land, suflBciency of 
 
 — Evidence. 
 
 A written offer, signed by the defend- 
 ant in Manitoba, to purchase from the 
 plaintiff land described only as " NJ 
 23-4-3E,". and accepted by the plaintiff, 
 sufficiently describes the land to satisfy 
 the Statute of Frauds. 
 
 Abell V. McLaren, (1901) 13 M.R. 463, 
 followed. 
 
 The same writing contained an offer 
 to convey land described as "6 lots in 
 Winnipeg hsted with J. P. Bucknam & 
 Son." 
 
1131 
 
 STATUTE Of frauds. 
 
 1132 
 
 Held, that parol evidence was admis- 
 sible to ascertain the identity of these 
 lots, and, that being proved, the Statute 
 of Frauds was sufficiently compUed with. 
 
 Shardlow v. Cotterell, (1881) 20 Ch. D. 
 90, followed. Caisky v. Stewart, 21 M.R. 
 341. 
 
 4. Hiring and service — Quantum 
 meruit — Joint creditors. 
 
 The plaintiffs, husband and wife, 
 made a verbal contract with the defend- 
 ant to serve him on his farm for a year 
 for $400. The work was not to be com- 
 menced until the plaintifis were sent 
 for. This was done some days after 
 the making of the agreement. They 
 nearly completed their year of service, 
 but the defendant dismissed them two 
 days before the end of the year, without 
 any justification. 
 
 Held, that, the agreement of hiring 
 being within the Statute of Frauds, the 
 plaintiffs could not sue upon it ; but 
 tha,t they were entitled to recover the 
 value of their services ' in this action as 
 upon a quantum m«ruU, and that the verbal 
 agreement might be given in evidence 
 for the purpose of showing the terms of 
 the engagement and the amount that 
 defendant had agreed to pay. 
 
 In such a case a plaintiff does not 
 recover upon the special contract, but 
 upon the promise impUed by law to 
 remunerate him for what he has done at 
 the defendant's request; and the Statute 
 does not prevent the party who has 
 furnished money, goods, lands or labor 
 under such a contract, when repudiated 
 by the other party, from rescinding it 
 and recovering upon this impMed obli- 
 gation. 
 
 Held, also, that the contract of hiring 
 to be implied from the services ren- 
 dered, and from the terms of the hiring, 
 should be considered as joint, and that 
 the plaintiffs could sue jointly, and only 
 jointly, for the value of ,their services. 
 Giles v. McEwan, 11 M.R. 150. 
 
 5. Parol evidence — Guarantee in 
 writing — Sufficient memorandum — Am- 
 biguity. 
 
 The defendant by writing under seal 
 agreed " to become responsible for the 
 debt contracted by James Jones to 
 The Waterous Engine Works Co.," 
 but the writing did not state to whom he 
 was to become responsible. 
 
 Held, (reversing the decision of Killam, 
 J.) 
 
 1. That parol evidence of the surround- 
 ing circumstances was admissible to 
 explain the ambigirity, and that, looking 
 at the writing in relation to the circum- 
 stances, it was sufficiently shewn that it 
 was the plaintiffs to whom defendant 
 was to become responsible. ' 
 
 2. That the writing was a sufficient 
 memorandum to satisfy the Statute of 
 Frauds. Waterous Engine Works Co. v. 
 Jones, 7 M.R. 73. 
 
 6. Parol trust — Renewal of fi. fa. 
 — Certificate of judgment — Informalities.' 
 
 C.i owned lands subject to mortgages. 
 For the purpose of securing O. against 
 some accommodation endorsements she 
 mortgaged the land to him, but in form 
 the mortgage was to secure payment of 
 $3,500. The first mortgagee took fore- 
 closure proceedings. A verbal agreement 
 was then made, (as the plaintiff alleged) 
 that O. shoiUd prove upon his mortgage, 
 should redeem the prior mortgagees, 
 borrow upon a new mortgage sufficient 
 to recompense him, and hold the equity 
 of redemption in trust for C. 
 
 The plaintiff purchased a judgment 
 against C. upon which fi. fa. lands and a 
 certificate of judgment had been issued, 
 and fUed a bill upon them claiming that 
 O. was a trustee for C, and asking for a 
 sale. The evidence shewed that the 
 plaintiff was simply the nominee of C. 
 
 Held, 1. That, the agreement being 
 verbal, the Statute of Frauds was 
 a vaMd defence. 
 
 2. The fi fa. had ceased to be in force, 
 it having been tested 17th August, 1885, 
 and renewed more than 30 days before 
 its expiration. 
 
 3. That the certificate of judgment 
 was invaUd. The judgment was re- 
 covered by Thomas Houston and WilUam 
 S. Foster, trading as Houston, Foster & 
 Co. for $1,273.60, whereas the certificate 
 was of a judgment recovered by Thomas 
 Hustin and WiUiam S. Fisher, trading as 
 Hustin, Fisher & Co., for $1,188.70. 
 Waterous v. Orris, 6 M.R. 177. 
 
 7. Parol evidence to establish ex- 
 press trust — Appeal from findings of 
 fact. 
 
 Action for a declaration that certain 
 lands standing in defendant's name 
 were held by him in trust for plaintiff and 
 for an order for a conveyance of the 
 lands to the plaintiff. Plaintiff alleged 
 that he had bought and paid for the 
 lands and taken deeds in defendant's 
 
1133 
 
 STATUTE OF LIMITATIONS. 
 
 1134 
 
 name with his knowledge and consent. 
 Defendant positively denied this and 
 claimed that he had himself bought and 
 paid for the lands. 
 
 The trial Judge held that the plaintiff 
 had not satisfied the onus that lay on 
 him to establish a clear case upon the 
 evidence and gave judgment for defend- 
 ant. 
 Held, on appeal to the FuU Court, 
 
 1. In view of the letters written by 
 defendant to plaintiff and of the undis- 
 puted facts and circumstances, as set 
 out in the judgments, the plaintiff's' case 
 was clearly made oilt. 
 
 2. When the trial Judge's decision 
 does not depend upon the credit to be 
 given to conflicting testimony, but rather 
 upon inferences drawn from the docu- 
 mentary evidence and the surrounding 
 facts and circimistances, a Court of 
 Appeal is free to reverse his decision upon 
 questions of fact as well as law. 
 
 McKercher v. Sanderson, (1887) 15 
 S.C.R., at p. 301, and Creighton v. Pacific 
 .Coast Lumber Co., (1899) 12 M.R. 546, 
 followed. 
 
 3. Notwithstanding section 7 of the 
 Statute of Frauds, an express verbal 
 trust of land may be proved by oral 
 testimony, wherever a strict reading 
 of the Statute would enable the trustee 
 to commit a fraud. 
 
 Re Duke of Marlborough, [1894] 2 Ch. 
 141, and Rochefoucauld v. Boustead, 
 [1897] 1 Ch. 196, foUowed. Gordon v. 
 Handford, 16 M.R. 292. 
 
 8. Sale of land — Quantum meruit. 
 
 The plaintiff's claim was for the balance 
 of the purchase money of a piece of land 
 which had been sold by the plaintiff to 
 the defendant, and the plaintiff had pro- 
 cured a conveyance of the land to the 
 defendant, who had accepted the same 
 as made in performai^ce of the plaintiff's 
 agreement, but there was no agr^ment 
 of sale to satisfy the Statute of Frauds. 
 
 Held, following Oiles v. McEwan, 11 
 M.R. 150, that, notwithstanding the 
 absence of an agreement in writing, the 
 plaintiff was entitled to recover the 
 value of the land conveyed, which prima 
 facie was worth the amoimt the defend- 
 ant had agreed to pay. 
 
 McMillan v. WUliams, 9 M.R. 627, 
 distinguished on the ground that plaintiff 
 there had sued on the agreement. Holm- 
 wood V. Gillespie, 11 M.R. 186. 
 
 See Agreement for Sale op Land, 1, 2. 
 
 — Assignment of Chose in Action. 
 
 — Bailment, 6. 
 
 — Contract, II, 1; XIII,'l2; XV, 13. 
 
 — Equitable Estoppel. 
 
 — Equitable Mortgage. 
 
 — Evidence; 20. 
 
 — Guaranty, 1. 
 
 — Jurisdiction, 2. 
 
 — Municipality, I, 3. 
 
 — Principal and Agent, V, 7. 
 
 — Vendor and Purchaser, VI, 1, 6, 
 
 10, 14; VII, 9. 
 
 STATUTE OF LIMITATIONS. 
 
 See Limitation of Actions. 
 
 — Real Property Limitation .\ct. 
 
 STATUTE OF MORTMAIN. 
 
 See Will, II, 3. 
 
 STATUTE PROCURED BY FRAUD. 
 
 See Summary Judgment, II, 3. 
 
 STATUTES, CONSTRUCTION iOF. 
 
 1. Adjournment of trial— "Froin day 
 
 to day." 
 
 In a statute regulating the procedure 
 upon a contested election, it was pro- 
 vided that the Judge " shall adjourn 
 from day to day, until he has pronounced 
 his final judgment;" but there was no 
 provision declaring the proceedings void 
 if this provision was not observed. 
 
 Held, that the provision was directory 
 only, and its non-observation did not 
 vitiate the Judge's deci>*ion. ■ McMicken 
 V. Fonseca, 6 M.R. 370. 
 
 2. Change of name of company — 
 
 Parlies — Crown choosing forum. 
 
 After the S. & R. M. Railway Co. had 
 incurred some liabilitips, its name was. 
 by statute, changed to the N.W.C. Ry. 
 Co. The Act provided that "the ex- 
 isting liabilities of the company, for 
 work done for the said company, shall 
 be a first charge upon the undertaking." 
 
1135 
 
 STATUTES; GONfeTRUCTION OF. 
 
 1136 
 
 A further Act provided that " the 
 company shall remain liable for all 
 debts due for the construction of the 
 railway and, if such debts are due to 
 contractors, shall cause all just claims 
 for labor, etc., to be paid by such con- 
 tractors." 
 
 Afterwards a charter was issued to 
 the G.N.W.C. Ry. Co., in which that 
 railway covenanted with Her Majesty 
 to pay all debts due by the above-named 
 railways, "and will cause all just claims 
 for labor, &c., due by contractors, to 
 be paid by such contractors." 
 
 Upon an information against the last 
 named railway company, and certain 
 contractors of the first named railway, 
 to enforce the covenant. 
 
 Held, 1. That the railway was liable 
 only to the extent to which the previotis 
 railway was liable to its own contractors, 
 and not for sums due by such contractors 
 to workmen beyond the amount of that 
 liability. 
 
 3. If otherwise, the workmen ought 
 to be parties to the bill. 
 
 Per Taylou, C. J. The Crown may, 
 when proceeding in relation to property 
 to which the Sovereign is entitled in 
 right of the Crown, choo-se its own for- 
 um ; but otherwise, where the Crown 
 claims no beneficial interest. Attorney- 
 General V. MacDonald, G M.R. 372. 
 
 3. "Majority in value of the cre- 
 ditors." 
 
 Held, that, in estimating a majority 
 in value of the creditors under 5(J Vic. 
 (M), c. 8, s. 1, s-s. 5, the question of sec- 
 urity held by any creditor should not be 
 taken into account. Creditors must be 
 taken to be such for the full amount of 
 what the debtor owes thein. Fraser v. 
 Darroch, 6 M.R. 61. 
 
 4. Retrospective statute — Costs. 
 
 In an action on contract the plaintiff 
 had a verdict for $101, When the action 
 was commenced, the County Court had 
 jurisdiction up to 1250; but, when the 
 amount claimable exceeded $100, the 
 case could be brought in the Queen's 
 Bench. In such case, if the verdict 
 exceeded $200, full costs were given, 
 but if less than $200, and more than $100, 
 costs upon a lower scale were taxed. 
 
 Pending the action an Act provided 
 thati "In case an action of the proper 
 coifnpetence of the County Courts be 
 brought in the Queen's Bench," County 
 
 Court costs only should be allowed, and 
 that subject to a set-off of Queen's Bench 
 costs, unless the presiding Judge cer- 
 tified otherwise. 
 
 Held, that the statute, although passed 
 after the case was commenced, governed 
 the question of costs. Todd v. Union 
 Bank of Canada, 6 M.R. 457. 
 
 5. Retrospective statute — King's 
 Bench Act, Rules 803, 804—60 Vic, c. 
 4, County Court judgment — Judicial sale 
 of land. 
 
 Rule 807 (o), added to The King's 
 Bench Act by 60 Yic, c. 4, is retro- 
 spective and was intended to apply 
 not only to orders which had been pre- 
 viously made and which had not been 
 attacked, but also to the proceedings 
 which had been taken under them, so 
 as to validate judicial sales of land that 
 had been made under orders to realize 
 County Court judgments without the 
 bringing of a separate action, which it 
 had been held in Proctor v. Parker, (1897) 
 11 M.R. 485, there was no jurisdiction, 
 before 60 Vic, c. 4, to make. Ritz v. , 
 Schmidt, 13 M.R. 419. 
 
 Reversed, 31 S.C.R. 602. (gee next 
 case.) 
 
 Until 1897 it was the practice in Mani- 
 toba for the Court of Queen's Bench to 
 grant orders for the sale of lands on 
 judgments of the County Court under 
 Rules 803 et seq. of The Queen's Bench 
 Act, 1895. In that year the Court of 
 Queen's Bench decided that this practice 
 was irregular, and in the following year 
 the Legislature passed an Act providing 
 that, "in the case of a County Court 
 judgment, an application may be made 
 under Rule 803 or Rule 804, as the case 
 may be. This amendment shall apply 
 to orders and judgments heretofore 
 made or entered, except in cases where 
 such orders or judgments have been 
 attacked before the passing of this amend- 
 ment." 
 
 Held, Sedqewick, J., dissenting, that 
 the words " orders and judgments " in 
 said clause refer only to orders and 
 judgments of the Queen's Bench for sale 
 of lands on County Court judgments, 
 and not to orders and judgments of the 
 County Court. 
 
 Held, further, reversing the judgment 
 of the Queen's Bench, 13 M.R. 419, 
 Davibs, J., dissenting, that the clause 
 had retro-actiVe operation only to the 
 
1137 
 
 STATUTORY DECLARATION. 
 
 1138 
 
 extent that orders for sale by the Queen's 
 Bench on County Court judgments 
 made previously were valid from the date 
 on which the clause came into force, 
 but not from the date on which they were 
 made. 
 
 Per Sedgewick, J., The clause had 
 no retro-active operation at all. Ritz 
 V. Schmidt, 31 S.C.R. 602. 
 
 7. Sale of land for taxes — Tax deed 
 — Interest upon taxes. 
 
 A statute provided that no " sale " 
 of land for taxes should be impeached 
 ■because of the addition of interest to the 
 taxes. A bill was filed to prevent the 
 execution of a tax deed in pursuance of 
 a sale on the ground that such an addition 
 had been made. 
 
 Held, that the statute was not confined 
 in its operation to a sale completed by 
 conveyance, but made valid the sale 
 itself. SchuUz v. City of Winnipeg, 6 
 M.R. 269. 
 
 See Alimony, 4. 
 
 — Attachment op Goods. 
 
 — C.P.R. Lands, 1. 
 
 — Capias, 3. 
 
 — Company, IV, 7. 
 
 — Constitutional Law, 5. 
 
 — Contract, XV, 5. 
 — • Corpobation, 6. 
 
 — Costs, XI, 4. 
 
 — ■ Crown Lands, 2. 
 
 — Crown Patent, 2. 
 
 — Election of Remedy. 
 
 — Election Petition, X, 6. 
 — ■ Exemptions, 6. 
 
 — Fire Insurance, 3. 
 
 — Fraudulent Preference, VI, 2. 
 
 — Half Breed Lands, 1. 
 
 — Homestead, 6. 
 
 — Illegality, 2. 
 
 — Injunction, I, 2. 
 
 — Law Stamps. 
 
 — Liquor License Act, 3. 
 — • ^Mechanic's Lien, III, 1. 
 
 — Municipality, I, 2, 5; IV, 4, 5. 
 
 — Practice, XXVIII, 29. 
 
 — Public Parks Act. 
 
 — Public Schools Act, 2. 
 
 — Railways, VI, B, 1, 2. 
 
 — Retrospective Statutes. 
 
 — Sale op Land fob Taxes, IV, 1; VI; 
 
 VII, 1; IX, 1, 3. 
 ■ — Sheriff, 6. 
 
 — Street Railway. 
 
 — Winding-up, I, 2; III, 1. 
 
 STATUTORY DECLARATION. 
 
 See Affidavit. 
 
 STAYING PROCEEDINGS. 
 
 I. Appeal Pending. 
 II. In Second Action. 
 III. Miscellaneous Cases. 
 
 I. Appeal Pending. 
 
 1. In action on foreign judgment — 
 
 Terms on which proceedings stayed — Prac- 
 tice. 
 
 The plaintiff was proceeding to enforce 
 in the Courts of this Province two judg- 
 ments obtained in Ontario agaiiLst de- 
 fendants for a large amount, one of 
 which judgments had been entered by 
 consent ; and the company was at the 
 same time going on with proceedings in 
 the Ontario Court for the purpose of 
 setting aside the judgment on the ground 
 that the consent had been given in fraud 
 of the company, and that there had been 
 collusion between the plaintiff and the 
 president of the company, and that 
 there was a good defence to plaintiff's 
 claim on the merits. It appeared that 
 the company was acting in good faith 
 in their proceedings, that the expenses 
 coimected with the same would be very 
 great and would have to be dupUcated 
 here if the action in this Court proceeded. 
 
 The defendants then applied for a stay 
 of proceedings in this action until the 
 determination of the htigation in Ontario. 
 
 Held, that the proceedings should be 
 stayed upon terms securing as far as 
 possible the plaintiff's claim and upon 
 defendants agreeing to abide by the 
 result of their Utigatiori in Ontario. 
 CharUbois v. G.N.W.C.R. Co., 9 M.R. 286. 
 
 2. In mechanic's lien action. 
 
 The bill was filed to enforce a mechanic's 
 lien, and was dismissed at the hearing 
 with costs, 1 M.R. 39. 
 
 After taxation, plaintiff having served 
 notice of intention to re-hear, moved to 
 stay proceedings under the decree, pend- 
 ing the re-hearing, offering to give secur- 
 ity for costs. 
 
 Taylor, J., Held, (reversing the decision 
 of the Referee who had followed the 
 Enghsh authorities, and dismissed the 
 motion with costs,) that the Cour^ 
 here had dec-drc? not tj -llow the Eng- 
 
1139 
 
 STAYING PROCEEDINGS. 
 
 1140 
 
 lish practice, but to act on the practice 
 laid down in the Supreme Court Act, 
 and made an ordef that the proceedings 
 be stayed, upon plaintiffs giving security, 
 to the satisfaction of the Referee, for the 
 costs of the defendants, including the 
 costs of re-hearing Chaduiick v. Hunter, 
 1 M.R. 109. 
 
 3. From order to strike out defence. 
 
 The strict legal right to appeal from 
 an order does not necessarily entitle 
 the aggrieved party to a stay of pro- 
 ceedings. It is a matter of discretion, 
 and may be refused when a stay would 
 defeat the ends of justice, or where one 
 of the parties would be materially pre- 
 judiced by it, while the inconvenience 
 to the other party would be of a much 
 less character. Miller v. Henry, 3 M.R. 
 454. 
 
 4. To Privy Council — Stay of ex- 
 ecution — Security. 
 
 Where, after judgment on appeal to 
 the Supreme Court of Canada, the losing 
 party proposes to appeal to the Judicial 
 Committee of the Privy Council, the 
 Comt will order proceedings on such 
 judgment in the Court of original juris- 
 diction to be stayed on satisfactory 
 security being given for the debt, interest 
 and costs. Union Investment Co. v. 
 Wells, 41 S.C.R. 244. 
 
 5. Recovery of costs. 
 
 Proceedings to recover costs, under 
 the order appealed from, will be stayed 
 upon payment of the amount into court. 
 Abell V- Allan, 3 M.R. 479, 
 
 6. Sale of land in mechanic's lien 
 action — Appeal pending in action for 
 redemption of same land — Identity of 
 parties. 
 
 Pending proceedings for the sale of 
 the land in question to realize the amount 
 found due to the plaintiffs and other 
 hen holders under The Mechanics and 
 Wage Earners Lien Act, R.S.M. 1902, 
 c. 110, the president of the plaintiff com- 
 pany, as trustee for the company, ac- 
 quired a mortgage on the land given by 
 the owner and sold it under the power 
 of sale for default in payment to an officer 
 of the company. The owner afterwards 
 got judgment in this Court in an action 
 against the president of the plaintiff 
 company for redemption of the mortgage, 
 but the latter appealed therefrom to the 
 
 Supreme Court of Canada, which appeal 
 was still pending. 
 
 Held, that, as the plaintiff company was 
 in effect a party to both actions, pro- 
 ceedings to carry out the sale in the first 
 action should, on the appUcation of the 
 owner of the land, be stayed until after 
 the decision of the Supreme Court in 
 the second action should be given, pro- 
 vided that the applicant would within 
 one month pay into court the amounts 
 found due by the Master's report to lien 
 holders other than the plaintiff, as against 
 whom tHere should be no stay of pro- 
 ceedings, and that, in default of such 
 payment, the appUcation should be 
 dismissed with costs. Black v. Wiebe, 
 4 W.L.R. 218. 
 
 II. In Second Action. 
 
 1. Until payment of costs of fotmer 
 suit. 
 
 Plaintiff had filed a biU to set aside, 
 on the ground of fraud, a purchase of 
 lands made by him from the, defendant. 
 The bm was dismissed because the 
 plaintiff, after his discovery of the fraud, 
 had affirmed the contract. < 
 
 In the present action for damages, 
 for the deceit, the defendant apphed to 
 stay all proceedings until payment of 
 his costs of the previous .suit. 
 
 'Held, that, as the causes of action 
 were not the same, or substantially the 
 same, and the plaintiff's conduct was not 
 vexatious, the action should not be 
 stayed. Stewart v., Jackson; 3 M.R. 568. 
 
 2. Until payment of costs of former 
 suit. 
 
 Where a suit is instituted seeking relief 
 substantially the same _ as that . sought 
 in a previous suit, the "proceedings will 
 be stayed until the costs of the former 
 suit have been paid. 
 
 The fact that the first suit was not 
 determined upon its merits is not neces- 
 sarily an answer to the application. 
 
 The fact that the Judge who heard 
 the application exercised a discretion 
 and dismissed the application is no bar 
 to an appeal. 
 
 Per KiLLAM, J. It was not a case for 
 the exercise of discretion. 
 
 The fact that in the first suit a ruarried 
 woman was suing alone and, in the 
 second, that she sued by a next friend 
 is no ground for refusing the application. 
 Hini V. Whitmore, 2 K. & J. 458, con- 
 sidered. 
 
1141 
 
 STAYING PROCEEDINGS. 
 
 1142 
 
 Per Tayloh, C. J. (1) The test of 
 the identity of the suits is whether the 
 bill in the second suit could have been 
 produced by a fair amendment of the 
 first. But the proceedings will some- 
 times be stayed although the relief 
 sought in the second suit could not have 
 been obtained in the first. 
 
 (2) That there is new matter in the 
 second suit ; that the relief sought is 
 not exactly the same, or that the parties 
 are not identical in both suits, is no 
 ground for refusing to stay proceedings. 
 McMicken v. Ontario Bank, 6 M.R. 15-5. 
 
 3. Practice — Second action — Formal ob- 
 jection. 
 
 An appUcation to stay proceedings 
 in a second action for the same cause, 
 cannot be made before appearance. 
 
 But such an objection is a "formal" 
 one, and may be cured by enlargement 
 of the appHcation, and the entry of 
 appearance. McNaughton v. Dobson, 5 
 M R. 315. 
 
 III. MiSCELLANEOtrS CaSBS. 
 
 1. Action brought without author- 
 ity. 
 
 An action was commenced and carried 
 to trial without the authority of the 
 plaintiff. During or immediately pre- 
 ceding the trial the plaintiff first learned 
 of its existence, and then told the defend- 
 ant that he (the plaintiff) had nothing 
 to do with it. The plaintiff took no 
 steps to stay the action, and, the defend- 
 ant having had a verdict, a motion for 
 a new trial was made on the plaintiff's 
 behalf, which was refused. After judg- 
 ment and execution the plaintifi moved 
 to stay all proceedings. 
 
 Held, that the plaintiff was entitled 
 to the rule as asked. 
 
 Semble, a defendant at common law 
 may call upon the plaintiff's attorney 
 to produce his authority for instituting 
 the action. It is not so in equity. Carey 
 V. Wood, 2 M.R. 290. 
 
 2. Garnishment — Interpleader. 
 Where a garnishing order is made in 
 
 an action for a disputed claim before 
 judgment and the garnishee, admitting 
 his debt, pays the money into cotirt with 
 notice that it is claimed by another 
 party, and then appUes for an inter- 
 pleader issue to be tried between plain- 
 tiff and such other party as claimant, 
 it is pfoper to stay the trial of the inter- 
 
 pleader issue until it be seen whether the 
 plaintiff will recover judgment against 
 the original defendant. 
 
 The interpleader issue to be tried 
 being one which, involved the title to 
 lands, the question was raised as to 
 whether it would be proper to send 
 the issue to the County Court for trial, 
 although the amount garnished was 
 under $250. 
 
 Held, following Guardians of Hertford 
 Union v. Kimpton, 11 Ex. 295, that the 
 issue might be sent, to the County Court 
 as it was a remedy provided by special 
 statute directing the trial in a County 
 Court. Hough v. Doll ; Howard, Gar- 
 nishee, 10 M.R. 679. 
 
 3. Issue of execution pending trial 
 of counterclaim — Practice ■ — Summary 
 judgment — Counterclaim- 
 
 Although the plaintiff has obtained 
 leave to sign judgment for rent due, 
 a stay of execution should be granted 
 until after the trial of the defendant's 
 counterclaim for damages to the goods 
 on the premises alleged to have been 
 caused by non-repair, if the counterclaim 
 is so far plausible that it is not unreason- 
 ably possible for it to succeed if brought 
 to trial, unless some reason is shown to 
 believe that the plaintiff wiU be put in 
 peril of losing the amount of his judg- 
 ment by the delay. 
 
 Sheppards v. Wilkinson, (1889) 6 
 Times L.R. 13, followed. Wells v. Knott, 
 20 M.R. 146. 
 
 4. Meaning of expression " usual 
 stay." 
 
 When, at the close of the trial, counsel 
 for the losing party asks the Judge to 
 grant the " usual stay " and the Judge 
 says " Yes '■' and nothing more is said, 
 the meaning is that the successful party 
 may sign judgment, but may neither 
 issue an execution nor register a certificate 
 of judgment untU after the lapse of the 
 time allowed for appealing from the 
 decision. Johnston v. Henry, 21 M.R. 
 700. 
 
 See Appeal rROM Okdeb, 6. 
 
 — Abbitbation and Awabd, 1. 
 
 — Costs, III, 1, 2. 
 
 — Ejectment, 4. 
 
 — Election of Remedy. 
 
 — Election Petition, V, 1. 
 
 — Infant, 11. 
 
 — Injunction, IV, 6. 
 
 — Parties to Action, 4. 
 
1143 
 
 STIPULATION FOR FORMAL CONTRACT. 
 
 1144 
 
 See Practice, III, 5; IV, 1; XXVIII, 30, 
 • 32. 
 
 — Real Peopbrty Act, III, 8. ' 
 
 — Security for Costs, IV, 1 ; X, 8 
 
 — Solicitor and Clibijt, I, 4. 
 
 — Winding-up, IV, 9. 
 
 STIPULATION FOR FORMAL 
 CONTRACT. 
 
 STOCK GAMBLING TRANSACTION. 
 
 See Evidence, 27. 
 
 STOLEN CHEQUE. 
 
 See Bills and Notes, VI, 4. 
 
 STOP ORDER. 
 
 See Practice, XXVIII, 30. 
 
 STOPPAGE IN TRANSITU. 
 
 Termination of transit by sherifE — 
 
 . Insolvency of consignee — Proof. 
 
 Goods while in transit were seized 
 by a sheriff under an execution against 
 the assignee, and removed from the 
 custody of the carrier. 
 
 Held, that the consignor could not, 
 after such removal, stop in transitu. 
 
 Semble, 1. By insolvency, in such cases, 
 is meant a general inability to pay debts, 
 of which the failure to pay one just and 
 admitted debt would probably be sufficient 
 evidence. 
 
 ■2. A vendor, who, in good faith and in 
 ignorance of the embarrassed circum- 
 stances of a customer, sold goods to him, 
 may, on discovery of the customer's 
 insolvency, exercise the right of stoppage 
 in transitu. Couture v. McKay. Hudson's 
 ■Bay Co., Claimants, 6 M.R. 273. 
 
 See Railways, III, 3. 
 
 STREET RAILWAYS. 
 
 Exclusive right to use of street for 
 tramway purposes — Powers of Mun- 
 icipal Councils — " Portion of street." 
 
 Municipalities in Manitoba are the 
 creatures of the Legislature and have 
 only such powers as are expressly con- 
 ferred upon them by the Legislature, 
 or implied as incident thereto, or neces- 
 sary to be exercised in order to carry into 
 effect the powers expressly given ; and, 
 therefore, without express legislative sanc- 
 tion, such a municipality has no power 
 to confer upon any person or corporation 
 an exclusive right to operate street 
 railways on any of its streets or highways. 
 
 The City of Winnipeg, by by-law 
 passed in 1882, assumed to grant to the 
 plaintiffs, for twenty years, " the exclusive 
 right to such portion of any street or 
 streets as shall be occupied by said rail- 
 way," and the plamtiffa claimed an in- 
 junction to prevent the defendan s from 
 operating a competing line of street cars 
 on tracks parallel to them on the same 
 streets. 
 
 The Charter of Incorporation of the 
 City, c. 36 of the statutes of Manitoba 
 passed in 1882, gave it no express power 
 to grant any exclusive rights or mon- 
 opoly of the use of the streets, but pro- 
 videid that the Council might pass by- 
 laws " for authorizing the construction 
 of any street railway or tramway upon 
 any of the streets or highways within the 
 City," and the plaintiffs' Act of Incor- 
 poration, c. 37, of the statutes passed . 
 in the same year, gave them " full power 
 and authority to use and occupy any and 
 such parts of any of the streets or high- 
 ways of the City as u ay be required for 
 the purposes of their railway track, 
 the laying of the rails and the running 
 of their cars," subject to the terms of 
 any agreement between the plaintiffs 
 and the City relating to the same. 
 
 Held, that there was nothing in either 
 statute enabling the City to grant the 
 exclusive rights claimed by the plaintiffs ; 
 and, also, that, even it the City had such 
 power, it had failed to confer such rights 
 upon the plaintiffs by the by-law above 
 referred to, the exclusion intended having 
 no application laterally across the whole 
 width of the streets in question, but only 
 longitudinally as far as the plaintiffs' 
 tracks extended. Winnipeg St. Ry. Co. 
 V. Winnipeg Electric St. Ry. Co. & City of 
 Winnipeg, 9 M.R. 219. 
 
 AfiBrmed, [1894] A.C. 615. 
 
 See Negligence, VI. 
 — Trees on Highway. 
 
1145 
 
 STRIKES. 
 
 iSee Injunction, I, 6. 
 I — Trade Unions. 
 
 STRIKES. 1146 
 
 SUBROGATION. 
 
 See Mechanic's Lien, VI, 2. 
 
 STRIKING OFF THE ROLLS. 
 
 See Solicitor. 
 
 STRIKING OUT APPEAL. 
 
 kSei2 Practice, III,'3. 
 
 STRIKING OUT^ PLEADINGS. 
 
 See Evidence, 12. 
 
 — Foreign Judgment, 2, 3, 6, 7. 
 
 — Libel, 4. 
 
 — Parties to Action, 8. 
 
 — Pleading, 11, 1; VII, 1, 2; X; XI, 6. 
 
 — Practice, XXII, 3: XXIII: XXVIII, 
 
 21. 
 
 — Production of Documents, 12. 
 
 — Time, 1. 
 
 — Trade Unions, 1. 
 
 STYLE OF CAUSE. 
 
 See Interpleader, VII, 1. 
 
 — 'Security tor Costs, I, 3. 
 
 — Solicitor's Lien for Costs, 4. 
 
 SUBSEQUENT INCUMBRANCER. 
 
 See Merger. 
 
 — Mortgagor and Mortgagee, VI, 1. 
 
 SUBSEQUENT PURCHASER FOR 
 VALUE. 
 
 See Frvi-Dulent Conveyance, 22. 
 
 SUBSTITUTION OF GOODS. 
 
 See Warehouse Receipt. 
 
 SUBSTITUTIONAL SERVICE. 
 
 See County Court, I, 4. 
 
 — Jurisdiction, 9. 
 
 — Practice, XI, 4; XXIV. 
 
 — Solicitor and Client, III, i 
 
 SUBWAY UNliER RAILWAY. 
 
 See Injunction, I, 3. 
 
 SUB-CONTRACTOR. 
 
 See Mechanic's Lien, III, 2; VII. 
 
 SUB-PURCHASER AND 
 MORTGAGEE. 
 
 See Vendor and Purchaser, III, 1. 
 
 SUB -PURCHASER AND VENDOR. 
 
 See Vendor and Purchaser, IV, 5; VI, 
 3, 13; VII, 12. 
 
 SUCCESSION DUTY ACT. 
 
 Property situate in the Province — 
 
 Shares in corporations whose head offices 
 are not in the Province — Deceased a resi- 
 dent of the Province. 
 
 Under The Succession Duty Act of 
 1893, the Province cannot collect a tax 
 or duty upon shares of stock in cor- 
 porations whose head offices are not 
 in the Province or upon money on deposit 
 outside of the Province, as such property 
 cannot be said to be " situate in the 
 Province," although the deceased was a 
 resident and died there. Be Campbell's 
 estate, 14 C.L.T. Oce. N..433. 
 
1147 
 
 SUCCESSIVE CONVICTIONS. 
 
 1148 
 
 SUCCESSIVEiCONVICTIONS. 
 
 ' See LiQTjoH License Act, 6. 
 
 SUMMARY CONVICTION. 
 
 1. Corporation — ■ Certiorari to quash 
 —Recognizance preliminary to certiorari — 
 The Manitoba Summary Convictions Act, 
 B.S.M. 19J2, c. 163, s. 4r— Deposit in lieu 
 of recognizance. 
 
 1. Where a corporation cannot ^^enter 
 into a recognizance, it can only comply 
 with sec. 4 of the Manitoba Summary 
 Convictions Act, B.S.M. 1902, c. 163, 
 (requiring the entering into of a recog- 
 nizance or making a' deposit with the 
 justice of the peace or magistrate as a 
 necessary preliminary to the appUcation 
 for a certiorari to quash a, conviction,), 
 by making such deposit. 
 
 2 A recognizance under that section 
 is defective if it is conditioned for the 
 due prosecution of " a writ of certiorari 
 issued " etc., instead of a writ to be issued. 
 
 3. Following .Ea; parte Tomlinson, (1869) 
 20 L.T. 324, and Begina v. Bohinet, 
 (1894) 16 P.R. 49, the defendant com- 
 pany should have leave to make the 
 necessary deposit with the convicting 
 magistrate within fourteen days, and then 
 to renew the motion. Be Western Co- 
 operative Construction Co. and Brodsky, 
 15 M.R. 681. 
 
 2. Jurisdiction i |of magistrate — 
 
 Certiorari — Criminal Code, 1892, s. 887 — 
 Appeal from summary conviction. 
 
 1. The jurisdiction of an inferior court 
 must appear on the face of the proceed- 
 ings or it wiU be presumed to have acted 
 without jurisdiction. Therefore a sumr 
 mary conviction under The Liquor License 
 Act which does not state where the 
 offence was committed, or even that it 
 was committed in Manitoba, should be 
 quashed. 
 
 2. Notwithstanding section 887 of The 
 Criminal Code, 1892, certiorari pro- 
 ceedings may be maintained, although 
 there has been an appeal from the con- 
 viction, upon any groxind which im- 
 peaches the jurisdiction of the magistrate. 
 
 Beg, V. Starkey, (1890) 7 M.R. 43, 
 followed. Johnston v. O'Beilly, 16 M.R. 
 405. 
 
 See Criminal Law, X, 2; XV, 4. 
 
 SUMMARY JUDGMENT. 
 
 I. Leave to Defend. 
 II. Special Indorsement. 
 III. Other Cases. 
 
 I. Leave to Defend. 
 
 1. Allegations of fraud — Costs, re- 
 fusal of — King's Bench Act, Bute 593. 
 
 When a defendant intends to rely 
 on a defence of fraud, he should set it 
 up definitely in his statement of defence 
 and, in meeting a motion for leave to 
 sign judgment under Rule 593 of The 
 XiTig's Bench Act, he should file an affi- 
 davit in answer showing such definite 
 facts pointing to the alleged fraud as to 
 satisfy the Judge that it would be reason- 
 able that he should be allowed to raise 
 such defence. 
 
 In this case the only evidence in sup- 
 port of the allegation of fraud consisted 
 of some general statements of defendants 
 in their examinations on their affidavits 
 filed in answer to the plaintiff's motion, 
 and it was held on appeal from the 
 Referee that his order allowing plaintiff 
 to sign judgment was right. 
 
 Wallingford v. Mutual Society, (1880) 
 5 A.C. 685, followed. 
 
 Costs of appeal refused partly on 
 account of the great mass of material 
 heaped up, including diffuse examin- 
 ations on affidavits. Canadian Moline 
 Plow Co. V. Cook, 13 M.R. 439. 
 
 2. Payment into court. 
 
 On an appUcation for leave to sign final 
 judgment, the Referee made an order 
 giving defendant leave to defend on 
 condition that he should pay into court 
 $613.80 within a week, and that in 
 default of such payment the plaintiff 
 should have leave to sign final judgment 
 for the full amount of his claim. The 
 defendant had been examined on his 
 affidavit and showed no defence as to 
 that sum, and no clear defence at all 
 to any portion of the plaintiff's claim. 
 He desired, however, to defend for the 
 whole, and had filed an affidavit that he 
 had a good defence to the action on the 
 merits. 
 
 Held, that the Referee had jurisdiction 
 to mate the leave to defend conditional 
 upon payment into court of the part of 
 the plaintiff's claim practicaUy admitted 
 as security, and that his discretion should 
 not be interfered with in this case. 
 
1149 
 
 SUMMARY JUDGMENT. 
 
 1150 
 
 Rotheram v. Priest, 49 L.J.N.S. 104, 
 and Oriental Bank v. Fitzgerald, W.N. 
 [1880] 119, followed. Law v. Neary, 10 
 M.R. 592. 
 
 3. Promissory note ■^- Delivery of 
 ' note in frayd of maker — Holder in due 
 course— Application to sign judgmeni. 
 
 On application to sign final judgment 
 in an action on a promissory note by the 
 indorsee against the maker, defendant 
 filed an affidavit stating that the note 
 had been handed by him to one L. to 
 hold in escrow until the settlement of 
 cfertain accounts between him and the 
 payee, and that it had been delivered 
 over to the payee without his consent. 
 
 Held, that, under The Bills of Ex- 
 change Act, 1890, s. 30, s-s. 2, defendant 
 was entitled to defend without showing 
 that plaintiff was not a holder in due 
 course. 
 
 Fuller V. Alexander, (1882) 52 L.J.Q.B. 
 103, and MiUard v.Baddeley, W.N. (1884) 
 96, followed. Flour City Bank v. Con- 
 nery, 12 M.R. 305. 
 
 II. Special Indorsement. 
 
 1. Alleging liability under cove- 
 nants in mortgage — Practice. 
 
 In indorsing a claim on a covenant in 
 a mortgage for the pajrment of principal 
 and interest, it is necessary to allege 
 clearly and distinctly that the claim 
 is made upon a covenant to pay the 
 money secured by the mortgage, or leave 
 •will not be given to sign final judgment 
 in the action, under section 26 of the 
 Administration of Justice Act. 'WTiere 
 the- claim is only stated to be one for 
 " money due upon covenants contained 
 in a mortgage," it wiU not be assumed 
 i that these are covenants to pay a li- 
 quidated and ascertained amount, and 
 it must clearly appear that the claim is 
 not in any way in the nature of damages 
 or such leave will not be given. 
 
 Satchioell y. Clarke, 8 T.L.R. 592, not 
 followed. Dictum of the Master in 
 Munro v. Pike, 15 P.R. 164, dissented 
 from. Manitoba and N.W. Loan Co. v. 
 McPherson, 9 M.R. 210. 
 
 2. Alleging performance of con- 
 ditions precedent — Practice. 
 
 In a special indorsement of a writ of 
 summons under The Common Law Pro- 
 cedure Act, for the purpose of an applica- 
 tion for leave to sign final judgment 
 after appearance entered, it is unnecessary 
 
 to allege performance of conditions pre- 
 cedent, although such seems to be re- 
 quired under the Judicature Acts in 
 England. Wyld v. Livingstone, 9 M.R. 
 109, overruled in that respect. 
 
 It is also unnecessary to show by the 
 indorsement that a claim for interest 
 arises under a contract express or implied, 
 and it will be left to the defendant to 
 show, if he can, that such claim does not 
 so arise. 
 
 The special indorsement on the writ 
 in this case showed a claim for an amount 
 due under a covenant contained in a 
 mortgage made by the defendant to the 
 plaintiffs, dated 22nd July, 1892, where- 
 by the defendant covenanted to pay to 
 the plaintiffs $3,150.00, with interest at 
 8 per cent, per annum, and went on to give 
 the dates when the principal and in- 
 terest should be payable, and contained 
 the following paragraphs : — 
 
 " To interest on $3,150 at 8 per cent, 
 per annum from 22nd July, 1892, to 3rd 
 October, 1893, due under covenant in 
 said mortgage — the covpnant is to pay 
 interest yearly ; - -$249.30 
 
 To amount paid by the plaintiffs 
 to insure the buildings on the said land in 
 accordance with a covenant contained 
 in the said mortgage, which insurance 
 money the defendant by the said mortgage 
 covenanted to repay to the plaintiffs 
 with interest thereon at 8 per cent, 
 per annum until paid ; - - $45 . 00 
 
 And the plaintiffs claim interest on 
 ,$3,444.30, the amount due as aforesaid 
 from 3rd October, 1893, until judgment, 
 at 8 per cent, per aimum." 
 
 Held, that, taking the indorsement 
 as a whole, it sufficiently appeared that 
 the interest was claimed under the cove- 
 nant for payment of interest, and thai, 
 the indorsement m. that respect was 
 sufficient. 
 
 Held, also, that, under the rule laid 
 down in London and Canadian L. & A. 
 Co. V. Morris, 7 M.R. 128, the descrip- 
 tion of the claim for insurance premiums 
 was sufficient. 
 
 Bodway v. Imcas, 24 L.J. Ex. 155, 
 followed. Canada Settlers' Loan Co. v. 
 FulleHon, 9 M.R. 327. 
 
 3. Municipality — Questioning Act 
 of Parliament — Municipal hy-law. 
 
 The defendant Municipality issued, in 
 October, 1882, debentures payable to 
 bearer, in aid of a railway company. 
 These debentures were issued under a 
 by-law passed in September, 1882. In 
 
1151 
 
 SUMMARY JUDGMENT. 
 
 1152 
 
 the following year this by-law was legal- 
 ized and confirmed by statute. The 
 boundaries of the Municipality were 
 afterwards changed, and the name changed 
 from the Municipality of Morris to The 
 Rural Municipality of Morris. Twelve 
 of these debentures, with interest coupons 
 attached, came into the possession of 
 the plaintiffs, who brought an action 
 thereon and moved for final judgment 
 by summary procedure under section 
 34 of The Queen's Bench Act. Amongst 
 other defences the defendant set up 
 that it was not the same Municipality 
 that had issued the debentures, and that 
 the by-law was procured to be passed 
 by fraud, and that the_passage of the 
 Act confirming same through the Legis- 
 lature was obtained by fraud and without 
 the knowledge of the members. 
 
 HeM, 1. That the MunicipaUty wa*' 
 liable, because the Acts changing the 
 boundaries preserved rights already ac- 
 quired. 
 
 2. That, even if the by-law could be 
 questioned after the lapse of eight years, 
 the defendant was barred by the statute 
 confirming it. 
 
 3. That, if an Act has passed the 
 Legislature and received the assent of 
 the Lieutenant-Governor, a court of 
 justice cannot enquire into the mode 
 in which it was passed or the means by 
 
 " which its passage was procured. 
 
 The special indorsement set out so 
 many debentures, bearing certain num- 
 bers and of certain date, issued under a 
 certain by-law, so much being claimed 
 in respect of them. Interest was claimed 
 upon these debentures, and in each case 
 the numbers of them were given. 
 
 Held, a sufficient special indorsement. 
 
 Walter v. Hicks, 3 Q.B.D. 8, followed. 
 
 Stewart v. Richard, 3 M.R. 610, dis- 
 tinguished. 
 
 Held, {Per Tatloe, C. J.) That 
 interest might be recovered on the cou- 
 pons. 
 
 The statute (sec. 34, Queen's Bench 
 Act, 1885) requires that the appUcation 
 for final iudgment shall be supported 
 by fin affidavit made by the plaintiff 
 " himself, or by any other person who can 
 swear positively to the debt or cause of 
 action." 
 
 Held, that, when the affidavit is not 
 made by the plaintiff himself, sufficient 
 must appear on the affidavit to satisfy 
 the Judge that the deponent is a person 
 who can swear positively to the debt 
 or cause of action, but those precise words 
 
 need not be used. London and Canadian 
 Loan and Agency Co. v. Rural Munici- 
 pality of Morris, 7 M.R. 128. , 
 
 Aopeal quashed, 19 S.C.R. 434. 
 
 4. Sufficiency of — Cheque dis- 
 honored — Notice of — ■ Amendment of 
 indorsement after summons for judgment 
 taken out — Writ of summons. 
 
 In an action on a dishonored cheque 
 final judgment will not be ordered, 
 unless the indorsement on the writ con- 
 tains either an allegation that notice 
 of dishonor was given to the drawer, or 
 a statement of the facts excusing the 
 giving of such notice. 
 
 The indorsement on a writ cannot be 
 amended by striking out objectionable 
 particulars, after a summons for final 
 judgment has been taken out, in order 
 to support the summons. Wyld v. 
 Livingstone, 9 M.R. 109. 
 
 III. .Other Cases. 
 
 1. Action on foreign judgment — 
 
 Appeal pending against same when appli- 
 cation rnade here — Finality of judgment — 
 Railway Company — Power to assign 
 judgnieni — Power of attorney — Judg- 
 ment is a security for money. 
 
 The plaintiffs sued as assignees of 
 judgments for costs recovered against the 
 defendants in actions brought by a 
 Railway Company and one Delap in the 
 High Court of Justice for Ontario. The 
 defendant having entered an appearance, 
 the plaintiffs appUed to strike it out ani 
 sign judgment oh the usual affidavit. 
 Defendant opposed this application, claim- 
 ing that he was appealing against the 
 Ontario judgments, also that the power 
 of attorney under which the assignment 
 by Delap was executed did not authorize 
 such an instrument. The power gave 
 authority to sell and dispose of, among 
 other things, " bonds, mortgages and 
 other securities for money." 
 
 Held, (1) That the pendency of an 
 appeal against a foreign judgment would 
 be no defence to an action upon it here, 
 although the Court might stay execution 
 on proper terms. 
 
 (2) That there is nothing to prevent 
 a railway company from assigning a 
 judgment recovered by it. 
 
 (3) That a judgment is a security for 
 money, and that the assignment executed 
 by Delap's attorney, under the power 
 above referred to, was sufficient. How- 
 land V. Codd, 9 M.R. 435. 
 
1153 
 
 SUMMARY JURISDICTION OF THE COURT. 
 
 1154 
 
 2. Affidavit — ■ Person who can jwear 
 positively to the debt or cause of action — 
 Practice. 
 
 On an application to sign final judg- 
 ment under section 34 of The Queen's 
 Bench Act, 1885, if the affidavit be not 
 made by the plaintiff, it must shew such 
 facts as will satisfy the Judge that the 
 deponent is a person who can properly 
 make the affidavit, but it need not state 
 in express terms that he " can swear 
 positively to th,e debt or cause of action." 
 
 If the affidavit be made by the plaintiff 
 himself, all that he need swear to, in 
 proof of his claim, is that " in his belief 
 there is no defence to the action." 
 
 London & Canadian L. dk A. Co. v. 
 Morris, 7 M.R. 128, followed. 
 
 The corresponding English order dis- 
 tinguished. Central Electric Co. v. Simp- 
 son, 8 M.R. 94. 
 
 See Appeal to Supreme Court, 4. 
 
 — Evidence, 22. 
 
 — Examination fob Discoveky, 2. 
 
 — Examination on Affidavit, 4. 
 
 — New Trial, 3. 
 
 — Practice, XI, 5; XXII, 1, 2. 
 
 — Set-Off, 4. 
 
 SUMMARY JURISDICTION OF THE 
 COURT. 
 
 See Solicitor, 2, 4, 8, 9. 
 
 SUMMARY TRIAL OF INDICTABLE 
 OFFENCE. 
 
 See Criminal Law, II, 2; XIII; XVII, 8. 
 
 SUMMING UP OF VOTES. 
 
 See Local Option By-Law, II, 1, 2. 
 
 SUNDAY. 
 
 See Criminal Law, XVII, 16. 
 
 SUPERIOR TITLE. 
 
 See Crown Patent, 6. 
 
 SURCHARGE. 
 
 See Mohtgagob and Mortgagee, VI, 1. 
 
 SURPLUS FROM TAX SALE. 
 
 See Sale op Land fob Taxes, VII. 
 
 SURPRISE. 
 
 See Evidence, 10. 
 — New Trial, 5. 
 
 SURRENDER OF LEASE. 
 
 See Landlord and Tenant ,V, 3. 
 
 SURROGATE COURT. 
 
 Surrogate Courts Act, R.S.M. 1902, 
 
 c. 41, s. 63 — Transfer of ronteniious 
 matter to King's Bench — Notice of appli- 
 cation to parties concerned — Practice — 
 Appeal to Full Court. 
 
 1. There is no jurisdiction in a Judge 
 of the Court of King's Bench to order 
 the removal, under section 63 of the 
 Surrogate Courts Act, R.S.M. 1902, c 
 41, of a contested petition from the 
 Surrogate Court to the Court of King's 
 Bench unless reasonable notice of the 
 application for removal has been given 
 to the other parties concerned ; and a son 
 of the deceased, and also of the admin- 
 istratrix of the estate of the deceased, 
 to whom letters had been granted as his 
 widow, is a party concerned in a petition 
 by the sister of the decea^sed to revoke 
 the letters of administration on the 
 alleged ground that the administratrix 
 was not the lawful widow of the deceased. 
 
 2. Under section 58 of The King's 
 Bench Act, an appeal lies to the Court 
 in banc from an order of a Judge of this 
 Court for the removal of a contentious 
 matter to this Court under the Surrogate 
 Courts Act. 
 
 Doll y. Howard, (1896) 11 M.R. 21, 
 
 distinguished. fle Estate of B 
 
 Deceased, 16 M.R. 269. 
 
 See Practice, XXVII, 2. 
 
1155 
 
 SURVEY OF LAND. 
 
 1156 
 
 SURVEY OF LAND. 
 
 New survey — Errors in survey. 
 
 1. When, upon a new survey of a block 
 of lots giving only the outlines, it is 
 determined that there is a small excess 
 in the length of the block over the dim- 
 ensions shown in the original sub-division 
 survey, there is no principle of law re- 
 quiring that such excess should in all 
 cases be distributed over the whole 
 length of the block so as to increase the 
 width and change the true boundaries 
 of every lot ; but, if the case requires 
 that such excess should be distributed 
 or located at all, it may, according to 
 circumstances, be located or allotted at 
 one or the other end of the block. 
 
 2. It is only when it is shown that, 
 after careful and exhaustive search, none 
 of the original posts or monuments of 
 the sub-division survey nor any vestiges 
 of thejn can be found, that the Court 
 will resort to the expedient of an equal 
 proportional distribution of the excess 
 among the several lots. 
 
 3 In default of such evidence, there- 
 fore, a pla,intiff, whose claim depends 
 upon his establishing strictly the boundary 
 between his and the defendant's lot and 
 rests solely upon the theory of such an 
 equal distribution, must fail. 
 
 Barry V. Desrosiers, (1908) 14 B.C.R. 
 126, doubted. Thordarson v. Akin, 21 
 M.R. 157. 
 
 See Boundary Lines. 
 
 SURVIVING TRUSTEE. 
 
 See Parties to Action, 9. 
 
 TAKING POSSESSION. 
 
 See Vendor and Purchaser, VII, 
 
 TAX SALE. 
 
 See Mortgagor and Mortgagee, VI, 10. 
 
 TAX SALE DEED. 
 
 See Real Property Act, II, 9. 
 — Sale of Land for Taxes, III, 2; 
 IV, 3; VI, 1, 3; VIII; IX, 3. 
 
 TAXATION. 
 
 1. Business tax — Charge on goods in 
 premises for business tax imposed ■ — Dis- 
 tress for taxes — Winding up — Liquid- 
 ator — Assessment, when taken to he 
 made — Taxes, when due — ■ Mistake in 
 name of party assessed— Winnipeg Charter, 
 1 <fc 2 Edward VII, c. 77, ss. 228 B., 313, 
 369, 378, 382. 
 
 1. A liquidator appointed to wind up 
 a company, under chapter 144 of the, 
 R.S.C. 1906, is not an assignee for the 
 benefit of creditors within the meaning 
 of section 382 of the Winnipeg Charter, 
 1 & 2 Edward VII, c. 77, so that there 
 is no priority under that section in favor 
 of the City for the business tax imposed 
 upon the Company as against other 
 debts. 
 
 2. Notwithstanding section 378 of the 
 Charter, taxes imposed by the City are 
 not due and payable so as to entitle the 
 City to sue for them until after the 
 preparation of the tax roll. 
 
 Chamberlain v. Turner, (1881) 31 
 U.C.C.P. 460, followed. 
 
 3. The assessment for ' the business 
 tax can be deemed to be made only after 
 notice thereof has been given : Devanney 
 v. Oorr, (1883) 4 O.R. 206; and, if, at 
 that time, the Company assessed is no 
 longer in possession of the premises and 
 the goods, though still on the premises, 
 are in the hands of a purchaser from the 
 liquidator, there is nothing in the Charter 
 which preserves to the City the lien on 
 the goods for the taxes created by section 
 313, for that section only gives the City 
 a first charge during the occupancy on 
 all goods in the premises for which the 
 occupant has been assessed. 
 
 4. The statutory right given to the 
 City by section 369 to distrain for such 
 taxes upon any goods and chattels found 
 on the premises in respect of which the 
 taxes have been levied, although such 
 goods and chattels may be the property, 
 and in the possession, of any other oc- 
 cupant of the premises, is not equivalent 
 to a hen or charge on the goods for such 
 taxes ; and, when the hquidator of a 
 company assessed for business tax had, 
 prior to the assessment, given up the 
 occupancy of the premises and sold the 
 goods therein, it was held that the City 
 had no right to be paid the taxes in full 
 out of the funds in the hands of the 
 liquidator, but had the right to rank with 
 other creditors of the company for the 
 
1157 
 
 TAXATION. 
 
 1158 
 
 same under section 228 B added to the 
 Charter by the Act of 1907. 
 
 5. Taxes imposed before the winding 
 up of a company has commenced can 
 only rank as ordinary debts in the ab- 
 sence of a statutory lien or charge, but 
 taxes imposed after the commencement 
 of the winding up must be paid in full, 
 as part of the expenses of the winding 
 up, if the liquidator has remained in 
 possession and such possession has been 
 " a beneficial occupation : " Inre National 
 Arms Co., (1885) 28 Ch. D. 474. 
 
 6. The assessment of the Company 
 under the name " Ideal Furniture Com- 
 pany," instead of " Ideal House Fur- 
 nish.rs. Limited," was sufficient under 
 the circumstances. 
 
 Booth V. Raymond, (1901) 61 N.E.R. 
 129, followed. Be Ideal House Fur- 
 nishers and City of Winnipeg, 18 M.R. 
 650. 
 
 2. Corporations Taxation Act, R. 
 S.M. 1902, c. 164, s. 3, s-s. (m), as 
 re-enacted by s. 7 of c. 37 df 6 & 6 
 Edward VII, and s. 18 — Municipality — 
 Business tax levied under 63 & 64 Vic., 
 c. 35, s. 2. . 
 
 The tax provided for by section 2 
 of chapter 35 of 63 & 64 Vic. to be levied 
 by the City of Brandon upon occupants 
 of business premises based upon the rental 
 value of such premises, though called a 
 business tax in the Act, might more pro- 
 perly be called an " occupation tax " 
 or a " rental tax," and, at all events; it 
 is not a tax similar to that imposed by 
 the Legislature upon express and other 
 companies for purposes of Provincial 
 revenue by section 3 of The Corporations 
 Taxation Act, E.S.M. .1902, c. 164, 
 although the latter tax is based, in the 
 case of an express company, partly on 
 the nuinber of its branch offices in the 
 Province. Consequently section , 18 of 
 the last mentioned Act does not exempt 
 an express company from payment of 
 the tax levied under the first mentioned 
 Act. Dominion Express Co. v. City of 
 Brandon, 20 M.R. 304. 
 
 3. Exemption from — Municipality 
 — Ultra vires — 56 Vic., c. 25, s. 9 (M .) 
 
 In this suit the plaintiffs sought to 
 obtain a. declaration that the defendants 
 were hable to pay taxes upon certain 
 lands belonging to them, which were made 
 part of the plaintiffs' municipahty in 
 April, 1891. The lands in question had 
 formerly belonged to the municipality 
 
 of St. Boniface, which, in 1882, entered 
 into an agreement with the defendants 
 by which the former acquired certain 
 property from the latter for the use of 
 the miinicipality, and in consideration 
 thereof agreed that certain other property 
 belonging to the defendants, including 
 the lands in question, should be exempt 
 from taxation, until the year 1901. 
 
 The plaintiffs contended that this 
 agreement was ultra vires, because a 
 municipahty created by the Legislature 
 has no power to exempt from taxation 
 except in accordance with the provisions 
 of law, and such exemptions as were 
 claimed were not provided for by any 
 statute. 
 
 Held, that the plaintiffs must fail on 
 the following grounds : 
 
 First, the agreemeiit providing for the 
 exemption claimed by the defendants 
 was more in the nature of a purchase 
 and sale, the result of which was that the 
 defendants practicalljr paid their taxes 
 on the land in question in advance for 
 twenty years by conveying certain other 
 property to the municipahty. 
 
 Second, the agreement in question 
 had been declared valid and binding 
 upon the municipality of St. Boniface 
 by the statute 46 & 47 Vic, c. 79, and 
 the statute 56 Vic, c 25, s. 9, specially 
 provided that, in the case of the transfer 
 from one municipahty to another of 
 property affected by any valid by-law, 
 deed, or agreement, it should continue 
 to be subject thereto, and it did not 
 matter whether the by-law, deed, or 
 agreement was valid at the time of its 
 being made, if it had been confirmed by 
 legislation before the passing of the 
 last mentioned statute. Rural Munici- 
 pality of Springfield v. La Corporation 
 Archiepiscopale Catholique Romaine de 
 St. Boniface, 10 M.R. 615. 
 
 4. Unpatented land — ^ Assessment 
 Act, R.S.M. 1902, c. 117, ss. 7, 146, 159, 
 166 — Sale of land after issvs of patent 
 for taxes imposed before issue — Dominion 
 Lands Act, 7 & S Edward VII, c. 20, s. 29. 
 
 Under section 159 of The Assessment 
 Act, R.S.M. 1902, c. 117, having regard 
 to the special provisions of the Act and 
 more particularly to sections 7 and 166, 
 there may be a sale, after the issue of 
 the Crown patent, for arrears of taxes 
 assessed against the interest of the oc- 
 cupant, being the homesteader, prior 
 to the issue of the patent, and the mun- 
 icipality is not, in such a case, limited 
 
1159 
 
 TAXATION OF COSTS. 
 
 1160 
 
 to the special method of collection pro- 
 vided by section 146. 
 
 In any event the sale will not be set 
 aside when some of the taxes for which 
 the lands were sold were assessed after 
 the issue of the patent. 
 
 The provision in section 29 of 7 & 8 
 Edward VII, c. 20 (The Dominion 
 Lands Act), tHat " No charge of any 
 nature may be created upon a homestead, a 
 purchased homestead or a pre-emption," 
 refers only to charges created by the 
 homesteader or pre-emptor and was 
 not intended to interfere with the Pro- 
 vince's right of direct taxation of the 
 interest of such person in the land. 
 Hannesdottir v. Rural Municipality of 
 Bifrost, 21 M.R. 433. 
 
 See CONSTITTJTIONAL Law, 5, 6, 17. 
 
 — Costs. 
 
 — Law Stamps. 
 
 ^ Public Schools Act, 2. 
 — • Sale of Land for Taxes. 
 
 TEACHER AND SCHOOL TRUSTEES . 
 
 See Pleading, XI, 17. 
 
 TECHNICALITY. 
 
 See Practice, VII, 1. 
 
 — . Staying Proceedings, II, 3. 
 
 TENANT AT SUFFERANCE. 
 
 See Vendor and Purchaser, IV, 
 
 TENANT FOR LIFE. 
 
 See Administration, 1. 
 
 TAXATION OF COSTS. 
 
 See Costs, I, 1, 5; XI, 6; XIII, 19. 
 
 — Practice, XXVIII, 5. 
 
 — Railways, I, 2. 
 
 — Solicitor and Client, I, 4; II; III, 6. 
 
 TAXES. 
 
 Distress for taxes — Demand — Plead- 
 ing. 
 
 The defendant's . treasurer served a 
 demand for payment of taxes, upon the 
 plaintiff, in the form set out in the judg- 
 rQent. A portion of the total amount de- 
 manded was not properly chargeable ; but 
 one of the items, viz., the taxes for 1884, 
 was legally due, and appeared separately 
 and clearly specified. 
 
 Held, 1. That there was no sufficient 
 demand, even for the 1884 taxes. 
 
 2. If the demand could have been 
 sustained, a seizure and sale for the 
 whole amount would have given the 
 plaintiff an action for excessive seizure 
 and sS,Ie only. 
 
 3. Justification for trespass, in such a 
 case, must be pleaded. Foote v. Muni- 
 cipality of Blanchard, 4 M.R. 460. 
 
 See Garnishment, V, 6, 8. 
 
 — Injunction, I, 7. 
 
 — Prohibition, I, 8. 
 
 — Sale op Land for Taxes, II; X, 7. ' 
 
 — Taxation. 
 
 TENDER, 
 
 .See Accident Insurance, 2. 
 — Practice, XXVIII, 31. 
 
 TENDER OF CONVEYANCE. 
 
 See Vendor and Purchaser, VII, 9. 
 
 THEFT. 
 
 See Criminal Law, VI, 5, 6; XVII, 17. 
 
 — Livery Stable Keeper, 2. 
 
 — Sheriff, 3." 
 
 THIRD PARTY. 
 
 'iSee Pleading, II, 2. 
 — Practice, XXVI. 
 
 THRESHERS' LIEN. 
 
 Threshers' Lien Act, 57 Vic, c. 36 — 
 
 Lien on grain for price of threshing other 
 grain — Seizure of ^excessive quantity — 
 Notice of claim of lien. 
 
 A thresher cannot, under The Thresh- 
 ers' Lien Act, 57 Vic, c. 36, mainta,in a 
 
1161 
 
 THRESHING GRAIN. 
 
 1162 
 
 lien on grain, for the threshing of which 
 he had been paid, to recover the price 
 of a subsequent unpaid threshing. 
 
 The plaintiff, by his notice put lip on 
 the granary, asserted his claim to a lien 
 upon all the grain contained in it which 
 was worth about $86 ; but the Court 
 found that the amount of the claim for 
 threshing for which he could, under the 
 Act, at the time of the postmg of the 
 notice, enforce a lien on such grain, 
 if the proper steps were taken, was only 
 about $26. 
 
 Held, that the quantity of grain which 
 the plaintiff attempted to retain was 
 unreasonably large for the amount owing, 
 and that, under section 2 of the Act, he 
 had forfeited his right of retention of 
 any of it. Simpson v. Oakes, 14 M.R. 
 262. 
 
 THRESHING GRAIN. 
 
 See Weights and Measures Act. 
 
 THRESHING OPERATIONS. 
 
 See Negligence, III, 2. 
 
 TICKET OF LEAVE ACT. 
 
 R.S.C. 1906, c. 150, ss. 7 and 8— 
 
 Forfeiture of license to be at large by sub- 
 sequent conviction — Place whgra prisoner 
 must serve balance of term of first sentence 
 — Prisoner arrested in Province other 
 than that in which first sentence imposed. 
 
 Under sections 7 and 8 of The Ticket 
 of Leave Act, R.S.C. 1906, c. 150, when a 
 prisoner, who has obtained a license 
 to be at large after undergoing part of a 
 gaol sentence in one Province and who 
 has afterwards been confined in a peni- 
 tentiary in another Province for a sub- 
 sequent offence, thus forfeiting his license, 
 is arrested upon the expiration of such 
 later sentence for the purpose of his 
 completing the term of his first sentence, 
 he should, notwithstanding sub-section 
 3 of section 8, be confined in a gaol in 
 such other Province and not in the peni- 
 tentiary where he was last confined. 
 Bex v. McCoU, 21 M.R. 552. 
 
 TIME. 
 
 1. Computation of time — Last day 
 Sunday — Pleas — Application to strike 
 out — Demurrer — Appeal from Referee. 
 
 G. O. 97 provides that " Appeals fropa 
 the order or judgment of the Referee in 
 Chambers shall be made by summoi^, 
 such summons to be taken out within 
 four days after the order or judgment 
 has been pronounced," &c. 
 
 Held, that, where the last day happens 
 to fall on a Sunday, the time should 
 be reckoned exclusively of that day. 
 
 Where pleas are clearly bad they » 
 should be struck -out, and the plaintiff 
 not put to the expense of a demurrer. 
 Bank of British North America v. Munro, 
 9 M.R. 151. 
 
 2. Computation of time. 
 
 Records which require to be entered 
 " at least four days before " the trial 
 must be entered not later than Thursday 
 for the following Tuesday. Calder v. 
 Dancey, 2 M.R. 383. ' 
 
 3. Holidays — Time for pleading — 
 Christmas and three following days. 
 
 The plaintiff signed judgment in .de- 
 fault of pleas on the twenty-seventh 
 day of December, 1883, the last day to 
 plead falling on Christmas day. 
 
 The defendant moved to set aside 
 judgment on the ground that Christmas 
 day does not count, nor the three follow- 
 ing days, in a notice to plead, and that 
 the judgment was signed before the time 
 to plead had expired. 
 
 Held, that Christmas day and the three 
 following days ' could not be reckoned 
 in any rules, notices or other proceedings ; 
 that Rule 175, Hilary Term, 1853, was 
 then in force in this Province, and that the 
 judgment should be set aside. Fortier v. 
 Gregory, 1 M.R. 25. 
 
 4. Service of notice of intention to 
 appeaL 
 
 An order of Taylor, J., on appeal from 
 the Master's Report, was dated 10th 
 December, 1883, but the minutes of it 
 were not settled till 14th December. 
 Notice of intention to appeal 'from the 
 order was served on the plaintiff's soli- 
 citor on 19th December. 
 
 Plaintiff moved before the Referee in 
 Chambers to set aside the notice of 
 appeal on the ground that it was given 
 too late. 
 
1163 
 
 TITLE BY POSSESSION. 
 
 1164 
 
 Held, affirming the order of the Re- 
 feree, that the time for the service of the 
 notice must be reckoned from the date 
 of the order and not from the date of 
 settling it, and that the notice of appeal 
 was given too late. 
 
 Leave was, however, given to proceed 
 with the rehearing, notwithstanding the 
 lapse of time, there having been a bona 
 fide intention to appeal. Olass v. McDoiv- 
 ald, 1 M.R. 29. 
 
 5. Sunday last day for notice — In- 
 
 terpretation Ad, R.S.M., c. 78, s. 8, dause 
 is). 
 
 Where the last day for serving a notice 
 of appeal under section 79 of The Assess- 
 ment Act, R.S.M., c. 101, falls on a Sun- 
 day, it must be served not later tha;n the 
 Saturday preceding or it will be too 
 late. Clause ,(s) of s. 8 of The Inter- 
 pretation Act, R.S.M., c. 78, which reads. 
 
 When anything required to be done 
 by any Act of the Legislature of Man- 
 itoba falls on a holiday, it shall be done 
 on the next day not a hoUday," does 
 not apply in such a case. Re Scott and 
 City of Brandon, 10 M.R. 494. , 
 
 See Appeal from Cotjnty Court, III, 4. 
 
 — Appeal prom Oedbe, 4. 
 
 — Arbitration and Award, 1, 9, 13. 
 
 — Election Petition, VII, 1; VIII. 
 
 — Liquor License Act, 12. 
 
 — • Local Option By-Law, V, 3; 
 
 — Mechanic's Lien, III, 1, 3; VII, 2; 
 
 VIII. 
 — • Municipal Elections, 5. 
 — ■ Municipality, VIII, 2. 
 
 — Practice, XIX, 1; XXVIII, 16. 
 
 — Vendor and Purchaser, II, 1, 4, 7; 
 
 IV, 2, 3, 6, 8; VI, 13; Vll, 5, 10. 
 
 TITLE BY POSSESSION. 
 
 See Ejectment, 5. 
 
 TITLE BY USER. 
 
 See Pleading, VII, 1. 
 
 TITLE DEEDS. 
 
 See Solicitor, 3. 
 
 TITLE TO LAND. 
 
 1. Cloud upon title — Parties — 
 Costs. 
 
 S. conveyed land to the plaintiff, 
 who registered his conveyance. S. after- 
 wards conveyed the same land to Fr., 
 who conveyed to Fo., who conveyed to 
 the defendant. 
 
 Held, that, although the registry showed 
 a good title in plaintiff, the defendant's 
 conveyances should be declared to be 
 clouds, and be removed. 
 
 Held, that Fo. and Fr. were not neces- 
 sary parties. 
 
 Held, that defendant must pay the 
 costs. Blair v. Smith, 1 M.R. 5. 
 
 2. In Manitoba before the Transfer 
 
 — Sale of land by married woman prior 
 to 1870-—Effed of Crown Patent for land 
 not vested in the Crown at the time — Hus- 
 band and wife — Statute of Limitations — 
 Amendment Of ' bill by alleging conveyance 
 from, true owner obtained after suit com- 
 menced — Parties . 
 
 The plaintiffs claimed title to the land 
 in question under an alleged sale from 
 the defendant, a married woman, made 
 verbally in 1863 to their mother, E. T. 
 
 E. T. was married in 1861, and her 
 husband, A. T., then went to live with 
 her on the land. They continued to 
 reside on and occupy it up to 1882 when 
 E. T. died intestate, after which A. T. 
 and the plaintiffs remained in possession 
 up to the filing of the bill. 
 
 The Judge found as a fact that some 
 time prior to, 1866 the defendant had 
 agreed to sell the land to E. T., and 
 that E. T. and A. T. thereafter continued 
 to occupy it under the bdief that it 
 belonged to E. T., but 
 
 Held, that, according to the Common 
 Law of England, in force down to 1870, 
 which was then the law of this country, 
 such a sale by a piarried woman of land 
 which was in no way separate estate, was 
 wholly void and incapable of being en- 
 forced against her, although a verbal 
 sale by a person sui juris might at that 
 date have been good, according to the 
 decision in Sinclair v. Mulligan, 5 M.R. 
 17. . 
 
 The plantiffs also claimed title by 
 length of possession hfld by their mother 
 imder said sale since 1863, and by them- 
 selves since 1880, but their father, A. T., 
 had lived on the land aU that time, and 
 farmed and occupied it in the same way 
 as any other head of a family would. 
 
1165 
 
 TOET. 
 
 1166 
 
 Held, that, on the evidence, A. T. was 
 the person who had acquired the title 
 by possession under the Statute of Lim- 
 itations, and as he had not conveyed his 
 title to the plaintiffs, and was not a party 
 to the suit, the bill must be dismissed. 
 
 The defendant had obtained a patent 
 frftm the Crown for the land in 1891, 
 but it appeared that the land was not 
 then vested in the Crown, having been 
 granted by the Hudson's Bay Company 
 in fee simple many years bSore to the 
 defendant's father. / 
 
 Held, that the existence of such patent 
 would not havfe prevented relief being 
 granted if A. T. . had t>rought the suit, 
 and that the defendant might have been 
 ordered to convey to him. 
 
 An objection for want of parties was 
 taken by defendant's counsel, who claimed 
 that defendant's husband should have 
 been a party to the suit. 
 
 Held, that, as the husband had not, 
 prior to the coming into force of the 
 Married Woman's Property Act, taken 
 possession of the land, it then became her 
 separate property, and she might be sued 
 in respect of it as a femme soh. 
 
 The Judge at first inclined to the 
 opinion that it would be proper to allow 
 the plaintiffs to obtain a conveyance 
 from their father and then to amend the 
 bin by alleging the conveyance, and 
 upon proof thereof to make a decree in 
 their favor; but, after hearing further 
 argument. 
 
 Held, that such amendment could not 
 be allowed, and that the bill must be 
 dismissed, but without costs. Templeton 
 V. Stuart, 9 M.R. 487. 
 
 3. Proof of Patent — Patent as evi- 
 dence of title — Child upon title. 
 
 Held, 1. That the copy of a patent 
 filed in the registry office and produced 
 by the registrar is not evidence of the 
 patent. 
 
 2. Where the bill alleged a patent and 
 asked that certain deeds to the defendant 
 should be set aside as clouds upon title, 
 and the answer prayed, by way of cross 
 reUef, that the patent referred to in the 
 bill might be set aside as a cloud upon 
 the defendant's title, no proof of 
 the patent was necessary. 
 
 4. That a patent from the Crown is 
 prima facie evidence of title. If it be 
 desired to set up title through a pur- 
 chaser from the Hudson's Bay Company 
 as against a patent, evidence must be 
 given to bring the case within The 
 
 Rupert's Land Act, 1868. (Imp.) 
 Pritchard v. Hanover., 1 M.R. 72. 
 
 4. Proof of vnil— Production of ori- 
 girial mil — Age — Certificate of baptism. 
 
 Held, to prove title to land the original 
 wiU must be produced and execution 
 proved — ^probate is not sufficient. 
 
 Held, that a certificate of baptism, 
 signed by the proper official under Con. 
 Stat., c. 16, ss. 1 and 16, was admissible 
 in evidence. Sutherland v. Young, 1 
 M.R. 38. 
 
 See Appeal peom County Coukt, IV. 
 
 — Costs, XI, 9. 
 
 — County Court, I, 4. 
 
 — Cbown Lands, 2. 
 
 — Evidence, 26. 
 
 — Jurisdiction, 2. 
 
 — Prohibition, I, 8. 
 
 — South African Land Warrant. 
 
 — Staying Proceedings, III, 2. 
 
 — Vendor and Purchaser, IV, 9, 11; 
 
 VI, 1, 6, 14; VII, 2, 4, 8, 11. 
 
 TORT. 
 
 .KB 
 
 See Attachment op Goods, 7. 
 
 — Jurisdiction, 10. 
 
 — Negligence, VII, 2. 
 
 — Partnership, 5. 
 
 — Practice, XXVI, 1. 
 
 TRADE FIXTURES. 
 
 See Fixturbs, 8. 
 
 TRADE NAME. 
 
 Imitation — Defendant vising ][his own 
 name — Injunction — Delay in mowing for 
 injunction. 
 
 Action for injunction to prevent de- 
 fendant from advertising shoes for sale 
 in such a maimer as to infringe upon 
 the plaintiff's tr^de mark, " The Slater 
 Shoe." The defendant was the agent 
 in Winnipeg for the sale of goods manu- 
 factured by George A. Slat-^r of Montroal, 
 who was not connected with the plaintiff 
 company. George A. Slater advertised 
 and sold his goods extensively in Canada 
 under the names " Ihe George A. Slatei 
 Shoe'' and the " Invictus Shoe." The 
 
1167 
 
 TRADE UNIONS. 
 
 1168 
 
 defendant's advertising agent, in an ad- 
 vertisement published in a Winnipeg 
 newspaper, described the shoes defend- 
 ant was selling as " the celebrated George 
 A. Slater Invictus Shoes for men." The 
 words " George A." and " Invictus " 
 were in considerably smaller type than 
 the words " Slater " an i " Shoes," but 
 still were • quite prominent and easily . 
 seen. The defendant discontinued the 
 advertisement as soon a;s the form of 
 it came to his notice and before plaintiff 
 took exception to it. 
 
 On appeal from the decision of 
 Mathebs, J., refusing an injunction. 
 
 Held, that the advertisement objected 
 to, in the form in which it appeared, ■ 
 ( would, if persisted in, have constituted 
 an infringement of the plaintiffs' trade 
 name ; but that the discretion exercised 
 by the Judge appealed from in refusing 
 an injunction should not be interfered 
 with, and that the appeal should be dis- 
 missed without costs, for the following 
 reasons : — 
 
 (o.) Defendant was not personally re- 
 sponsible for the form in which the adver- 
 tisement had appeared and had volun- 
 tarily withdrawn it as soon as it came 
 to his knowledge and before any com- 
 plaint was made. 
 
 (6) The action had not been commenced 
 until after the lapse of sixteen days 
 from the withdrawal of the advertise- 
 ment. 
 
 Sernble, it is not necessary in such an 
 action for the plaintiff to prove fraud or 
 an intention to deceive on the defendant's 
 part. It would be sufficient if the ad- 
 vertisement were likely to deceive. Slater 
 V. Ryan, 17 M.|l. 89. 
 
 See Pleabing, VII, 1. 
 
 TRADE UNIONS. 
 
 1. Strikes — Combined action ■■ — Con- 
 spirncy to injure plaintiff — Picketting 
 and besetting — Injunction — Damages — 
 Evidence — Striking out defences of per- 
 sons represented because of default of de- 
 fendants representing them. 
 
 Whilst workmen, members of a trade 
 union, have a right to strike and to com- 
 bine for that purpose in order to improve 
 their own position, provided the means 
 resorted to be not in themselves unlawful, 
 yet they have no right to induce other 
 workmen, who are not members of the 
 
 union and who desire to continue working, 
 to leave their employment, or to endeavor 
 to prevent the employers from getting 
 other men to work for them and for that 
 purpose to watch and beset the places 
 where the men happen to be, or to in- 
 duce the employers' workmen to break 
 their contracts, as these are act onable 
 wrongs and picketting and besetting are 
 expressly made unlawful by section 501 
 of the Criminal Code. 
 
 Quinn v. Leathern, [1901] A.C. 511 ; 
 Read v. The Friendly Society, &c., [1902] 
 2 K.B. 732; SovOi Wales. Miners' Feder- 
 ation V. Glamorgan Coal Co., [1905] A.C. 
 239 ; Lyons v. Willdns, [1899] 1 Ch. 
 255, and Charnock v. Court, [1899] 2 Ch. 
 35, followed. 
 
 Held, also, that all the defendants 
 who had participated in, or counselled 
 or procured, the acts condemned were 
 each individually liable for the whole 
 amount of the damages suffered by the 
 several plaintiffs in c6nsequence of those 
 acts, but not for any damage caused by 
 themselves quitting work. 
 
 Krug Furniture Co. v. Berlin Union, 
 (1903) 5 O.L.R. at p. 469, followed. 
 
 Damages were assessed against all 
 the defendants found guilty at $2,000 
 divided amongst the several plaintiffs 
 in proportions fixed by the judgment. 
 
 Held, also, that the property and 
 assets of the Union were liable for the 
 amount of the judgment and costs and 
 that an interim injunction granted should 
 be made perpetual restraining the de- 
 fendants from persuading, procuring or 
 inducing workmen to leave the employ 
 of the plaintiffs and from conspiring or 
 combining to induce workmen not to 
 enter the plaintiffs' employ, also from 
 besetting or watching places . where the 
 plaintiffs or any of their workmen or 
 those seeking to enter their employ 
 reside or carry on ' business or happen 
 to be with a view to compel the plaintiffs 
 or said workmen to abstain from doing 
 anything they or any of them have a 
 lawful right to do,- and from persistently 
 following them or any of them. 
 
 Defences enuring, under an order of 
 the Court, for the benefit of absent 
 interested persons, represented for the 
 purposes of the action by one or more 
 of the actual defendants, should not be 
 struck out by reason of a contempt 
 or default committed by such defendants 
 in refusing to produce documents, and 
 any interlocutory judgment entered in 
 
1169 
 
 TRADE UNIONS. 
 
 1170 
 
 consequence of such defences being 
 struck out is a nullity. 
 
 The destruction, during the progress 
 of this suit, of a book kept by an officer 
 of the Union at its headquarters in which 
 were recorded minutes relating to the 
 strike and the non-production of a strike 
 register kept and of the reports handed 
 in from day to day by members of the 
 Union actively engaged in picketting 
 and officially appointed for that purpose 
 were circumstances that justified the 
 Court in presuming that they contained 
 entries unfavorable or damaging to the 
 defence and in being satisfied with less 
 convincing evidence than might other- 
 wise be required, that the wrongful acts 
 of certain members were thfe authorized 
 acts of the Union : Taylor on Evidence, 
 10th ed. 117. Cotter v. Osborne, 18 M.R. 
 471. 
 
 2. Strikes — Combined action — Con- 
 spiracy to injure employers — Picketting 
 and besetting — Damages — Injunction — 
 Principal and agent—Criminal Code, s. 
 523. 
 
 1. Besetting and watching the premises 
 of an employer by members of a trades 
 union, if done in coucert with a view to 
 compel the employet to change thd jaode 
 of conducting his business and to comply 
 with their demands for better pay by 
 persuading men not to work for him or 
 to seek employment from him, especially 
 when accompanied by some attempts 
 at intimidation by tlieats of violence, 
 amounts to a common law nuisance 
 punishable in damages. 
 
 Lyons v. WUHns. [1899] 1 Ch. 25.5, and 
 Cotter V. Osborne, (1909) 18 M.R. 471, 
 followed. 
 
 2. Such besetting and watching may 
 be wrongful under section 523 of the 
 Criminal Code, although done merely 
 to obtain or communicate information. 
 
 3. When a body of men unite to per- 
 form an act or to accomplish a pjrpose, 
 leaving it entirely to the discretion of 
 those they employ as to the means they 
 shall make use of, all must be responsible 
 for the acts of each individual thus em- 
 ployed, and they cannot evade respon- 
 sibility by saying that what was done 
 was "without instructions, so that, where 
 a number of the defendant lodges ap- 
 pointed a strike committee and after- 
 wards recognized such committee and 
 its transactions, the lodges were held 
 liable as well as the individuals for the 
 illegal acts committed by the pickets 
 
 acting under the instructions of the 
 strike committee, although there was no 
 proof of any resohitions or formal acts 
 of the lodges authorizing such conduct. 
 
 Giblan v. National Amalgamated, [1903] 
 2 K.B. 624, followed. 
 
 4. Neither the receipt of strike pay by 
 a lodge from its grand lodge and the sub- 
 sequent payment of same to its men taking 
 part in the strike, nor the payment by 
 the lodge of its share of the rent of the 
 premises used as headquarters for the 
 strike, nor the giving of monetary assist- 
 ance to its members, nor the censure by 
 the lodge of two of its striking members 
 who had returned to work for the plain- 
 tiffs, made the lodge liable as a lodge 
 for past illegal acts committed by its 
 members without authority. 
 
 Denaby v. Yorkshire, [1906] A.C. 384, 
 followed. 
 
 Smithies v. National Ass. of Plasterers, 
 (1908) 25 Times L.R. 205, distinguished. 
 
 5. Damages should be awarded against 
 the defendants found guilty, for inducing 
 the boiler makers' union to employ its 
 coercive machinery and power to compel 
 a number of its members to withdraw 
 from their employment with the plain- 
 tiffs, for the loss caused to the plaintiffs 
 in not being able to secure workmen 
 through the illegal conduct of the defend- 
 ants and for the loss of the services of 
 men who would otherwise have remained 
 in their employment, but not in respect 
 of individual members peaceably per- 
 suading employees to quit work or because 
 one of the lodges censured two of its 
 members who returned to work, nor for 
 losses sustained by the strike inde- 
 pendently of the illegal acts proved. 
 
 6. Injunction made perpetual restrain- 
 ing the parties found guilty from besetting 
 and watching the place where the plain- 
 tiffs carried on business or any other places 
 in which any person or persons employed 
 or about to be employed by the plaintiffs 
 resided, with a view to compel such other 
 person or persons to abstain from work- 
 ing for the plaintiffs, etc., or for any 
 other illegal purpose, and from intimi- 
 dating by threats of violence such person 
 or persons and from persistently following 
 such person or persons about from place 
 to place. Vulcan Iron Works v. Winni- 
 peg Lodge No. 174, 21 M.R. 473. 
 
 See Equitable Execution. 
 
 — Injunction, I, 6. 
 
 — Pleading, 3C, 9. 
 
1171 
 
 TRADING COMPANY. 
 TRADING COMPANY. TREASON. 
 
 See Company, IV, 2, 15. See Ckiminal Law, XVII, 18. 
 
 WiNDING-TTP, I, 3. 
 
 1172 
 
 TRANSCRIPT OF JUDGMENT. 
 
 iSee Costs, 1, 4. 
 
 — ■ Limitation op Actions, 5. 
 
 — Prohibition, III, 4. 
 
 TRANSFER FROM COUNTY COURT 
 TO KING'S BENCH. 
 
 See Appeal from County Court, VII, 2. 
 — Practice, IV, 1; XXVII. 
 
 TRANSFER FROM SURROGATE 
 COURT TO KING'S BENCH. 
 
 See Practice, XXVII, 2. 
 — • Surrogate Court. 
 
 TRANSFER OF INTEREST. 
 
 See Ejectment, 6. 
 
 — Evidence, 9. 
 
 — Parties to Action, 10. 
 
 TRANSFER OF TITLE TO LAND. 
 
 See Constitutional Law, 9. 
 
 TRANSFER UNDER REAL PRO- 
 PERTY ACT. 
 
 •See Vendor and Purchaser, III, 2. 
 — Will, I, 4. 
 
 TRANSITORY ACTIONS. 
 
 See Jurisdiction, 6, 7, 8. 
 
 TRAVERSE 
 
 See Pleading, X, 9. 
 
 TREATING. 
 
 iSee Election Petition, IV, 5. 
 
 TREES ON HIGHWAY. 
 
 Street railway — Rights of owner of 
 adjoining land — Injunction — Muni- 
 cipal Act, B.S.M. 1902, c. 116, s. 688. 
 
 The right -of property in shade trees 
 on highways and to fence them in con- 
 ferred upon the owners of the lands ad- 
 jacent to the highways by section 688 
 of The Mui^cipal Act, R.S.M, 1902, 
 c. 116, is not taken away by an Act in- 
 corporating a railway company with 
 power to construct a hne of railway 
 along the public highway with the consent 
 of the municipaUty and according to 
 plans to be approved by the council of 
 the municipality, even although such 
 consent has been given and such plans 
 approved. 
 
 Douglas v. Fox, (1880) 31 U.C.C.P. 
 140, and Be Cuno, (1888) 43 Ch. D. 12, 
 followed. 
 
 The defehdants' Act of Incorporation 
 provided that the several clauses of the 
 Manitoba Railway Act, R.S.M. 1902, 
 c. 145, should be incorporated with and 
 deemed part of it. And the Railway 
 Act provides that the several clauses 
 of The Manitoba Expropriation Act, 
 R.S.M. 1902, c. 61, with respect to the 
 expropriation of land and the compen- 
 sation to be paid therefor, shall be deemed 
 to be incorporated mutatis mutandis with 
 the Railway Act. 
 
 Held, that the defendants had no 
 right to cut down the trees on the high- 
 way or to lower the grade in front of 
 the plaintiffs' land, although such action 
 was necessary in carrying out the approved 
 plans without taking the proper steps, 
 under the Railway Act and the Expro- 
 priation Act, either to ascertain and pay 
 the damages suffered by the plaintiffs 
 to their land injuriously affected by the 
 intended construction, or to procure an 
 order from a Judge, under section 25 
 of the Railway Act, giving them the 
 right to take possession upon giving 
 security for payment of the compensation 
 
1173 
 
 TRESPASS. 
 
 1174 
 
 to be awarded ; and that the, interim 
 injunction secured by the plaintiffs should 
 be continued until the trial unless the 
 defendants should furnish security that 
 they would proceed forthwith to settle 
 the amount of such compensation. 
 
 Parkdale v. West, (1887) 12 A.C. 602 ; 
 North Shore Ry. Co. v. Pion, (1889) 14 
 A.C. 612, and Hendrie v. Toronto H. & 
 B. Ry., (1896) 27 O.R. 46, followed. 
 Bannatyne v. Suburban Rapid Transit 
 Co., 15 M.R. 7. 
 
 TRESPASS. 
 
 Forcible entry — Possession. 
 
 If A. peaceably gains entrance to a 
 house in the actual possession of B. and 
 then, under a claim of right to possession, 
 forcibly removes the doors and windows 
 with the assistance of a number of men 
 brought with him, he will be liable in 
 an action of trespass at the suit of B., 
 although B. had no more right to pos- 
 session than A. ; but, if B. had been 
 wrongfully holding possession against 
 A., then the same conduct on the part of 
 A. would constitute a forcible entry for 
 which he could be prosecuted criminally, 
 but for which B. would have no redress 
 in a civil action. , Lems v. Mclnnes, 17 
 W.L.R. 309. 
 
 See Crown Lands, 1. 
 
 — Fences. 
 
 — Forcible Entry. 
 
 — Injitnction, I, 9, 10. 
 
 — Jury Trial, I, 5. 
 
 — Landlord and Tenant, I, 2. 
 
 — Public Parks Act. 
 
 — Public Schools Act. 
 
 — Sheriff, 7. 
 
 — Taxes. 
 
 TRESPASS AND TROVER. 
 
 1. Exemplary damages — Audita 
 Qverela — Certificate for costs — Court 
 ascertaining damages. 
 
 Plaintiff and the defendant Babington 
 both claimed the ownership of a crop of 
 wheat, the plaintiff as being tenant of 
 Babington, and Babington on, the ground 
 that the lease had expired. The question 
 was whether the oral agreement between 
 the parties was for one or five years. 
 The defendant had cut and stacked eight 
 stacks but had not interfered with the 
 
 rest of the wheat which was cut and put 
 up by the plaintiff in six stacks. The 
 plaintiff had a verdict for $650. 
 Upon a motion for a new trial. 
 Held, 1. That the charge was not 
 erroneous because the Judge refused to 
 tell the jury that it was for the plaintiff 
 to make out every part of the agreement, 
 and not merely that part of it which he 
 required for this case. 
 
 2. That the Judge was correct in telling 
 the jury that if they found a verdict for 
 the plaintiff they were not limited in 
 estimating damages to the actual pecun- 
 iary loss, but could allow exemplary 
 damages in addition ; that it was not 
 necessary, under the circumstances, to 
 poinc out the distinction between a 
 bona fide assertion of right and a wanton 
 trespass. 
 
 3. That it was not necessary for the 
 Judge to tell the jury that if the verdict 
 was in trespass the damage would be cal- 
 culated with reference to the whole crop, 
 while, if .in trover, it would be limited 
 to the part converted. The jury could 
 not well have erred upon that point. 
 
 4. Some damage had occurred because 
 of the occurrence of a hail storm, while 
 a portion of the wheat was uncut. For 
 this the defendants were not liable, and 
 the damages were reduced by $200, the 
 amount estimated by the Court as attri- 
 butable to that cause. 
 
 Just previous to the hour fixed for 
 rendering judgment in Term affidavits 
 were reaid by defendant's counsel shewing 
 that, since verdict, the plaintiff had 
 threshed seven of the stacks for his own 
 use. 
 
 Held, that such a matter could be 
 dealt with by the Court. 
 
 Affidavits having been filed and a 
 further argument having taken place. 
 
 Held, 1. That under the charge the 
 jury might well have given damages 
 in trover for the whole crop, instead only 
 for that part converted; and that the 
 Judge's charge was therefore erroneous. 
 (DuBuc, J,, diss.) 
 
 2. The verdict was, therefore, further 
 reduced to $225, being the value of the 
 stacks converted by the defendants, less 
 the value of one of them re-taken by the 
 plaintiff ; the plaintiff to have a certi- 
 ficate for full costs. (DuBuc, J., diss.) 
 Upon the objection, being taken that no 
 certificate could be granted, the Comt, 
 without deciding the point, ordered the 
 
1175 
 
 TRESPASSER. 
 
 1176 
 
 verdict to be entered for $260, the plain- 
 tiff to give credit thereon, for $35, the 
 value of the stack re-taken by him. Monk- 
 man V. Follis, 5 M.R. 317. 
 
 2. Plaintiff's right to sue for goods 
 in. custodia legis. 
 
 The sheriff, having an execution agajnst 
 A. & B., seized their stock in trade and 
 made an inventory. Nothing was re- 
 moved and no one was left in charge; but, 
 with a notification to the debtors not to 
 remove anything, the sheriff left them in 
 possession, their business proceeded and 
 they made payments to the sheriff from 
 time to time. Afterwards A. & B. ex- 
 ecuted to the plaintiffs a chattel mortgage 
 upon their stock. Subsequently the de- 
 fendant placed an execution in the sheriff's 
 hands against A. & B., and at a sale by 
 the sheriff become the purchaser. 
 
 Held, in an action for trespass and 
 trover, that the goods were at the date 
 of the mortgage under seizure, and that 
 the plaintiff could not succeed. Nor 
 could he recover for goods sold or money 
 received to his use. Minaker v. Bower, 2 
 M.R. 265. 
 
 (2) That the en or of the Judge in 
 refusing to allow the reply could only 
 entitle the party to a new trial if it ap- 
 peared that the course of justice had been 
 thereby interfered with and some sub- 
 stantial injury done to the party complain- 
 ing. 
 
 Doe d. Bather v. Brayne, (1854) 5 C.B. 
 655 ; Geach v. Ingall, (1868) 14 M. & W. 
 95, followed. 
 
 (3) That in the present case the plain- 
 tiff could suffer nothing from the order 
 in which the jury were addressed, as his 
 evidence was weak and the defendants 
 were entitled to the verdict, and that a 
 new trial should not be granted. Qvintal 
 v. Chalmers, 12 M.R. 231. 
 
 See Amendment, 5, 7. 
 
 — Evidence, 3, 23, 24. 
 
 — Evidence on Commission, 10, 11. 
 — • JuHY Trial, I, 9. 
 
 — Practice, IX, 1; XV, 2. 
 
 — Sale of Goods, II; 1. 
 
 — Verdict of Jury, 3. 
 
 TRESPASSER. 
 
 See Assault. 
 
 — Railways, VIII, 2. 
 
 TRIAL BY JURY. 
 
 See Jury Trial. 
 
 — Workmen's Compensation for In- 
 juries Act, 2. 
 
 TRIAL. 
 
 Contract — Evidence — Right to re-ply 
 — New trial — Practice. 
 
 This was an action tried before a Judge 
 and jury in which the plaintiff claimed 
 damages on a sale of a number of car 
 loads of oats by sample on the ground 
 that the oats were not equal to sample. 
 
 The contract having been simply that 
 the oats should be equal to the sample 
 produced. 
 
 Held, that the certificates of the grain 
 inspector Ett Fort WiUiam were not evi- 
 dence as to the quality of the oats deli- 
 vered. 
 
 The defendant having adduced evi- 
 dence, although only by way of putting 
 in certain documents on the cross-examin- 
 ation of one of plaintiff's witnesses. 
 
 Held, (1) following Best on the Right to 
 Begin, s. 132, and Rymer v. Cook, (1865) 
 Moo. & M. 86 n, that plaintiff's counsel 
 had the right to reply. 
 
 TROVER. 
 
 See Practice, XXVIII, 32. 
 — Trespass and Trover. 
 
 TRUST BY PAROL. 
 
 See Statute of Frauds, 6, 7. 
 
 TRUST FUNDS. 
 
 See Garnishment, III, 3; IV, 3, 4; V, 4, 7. 
 
 TRUST PROPERTY. 
 
 See Mechanic's Lien, VII, 1. 
 
1177 
 
 TRUSTEE AND CESTUI QUE TRUST. 
 
 1178 
 
 TRUSTEE AND CESTUI QUE TRUST. 
 
 1. Purchase by trustee from cestui 
 que trust — Under value — Family arrange- 
 ments. 
 
 The defendant's brother having died 
 unmarried and without issue, the plain- 
 tiff, his father, became sole heir at law ; 
 but, as he lived in Ontario, he consented 
 to the defendant taking out letters of 
 administration and disposing of the estate 
 which consisted solely of a quarter section 
 of land. The defendant represented to 
 the plaintiff that the land in question 
 was worth only about $600, and the plain- 
 tiff was induced by such representation 
 to sell and convey the land to defendant 
 at that price. He afterwards filed a bill 
 to set aside the sale on the ground that, 
 as he alleged, the defendant had been 
 guilty of false and .fraudulent represent- 
 ations as to the real value of the land. 
 The learned Judge at the hearing came 
 to the conclusion upon the evidence 
 " that the market, or saleable, value of 
 the land did not exceed between S650 
 and $750, or perhaps $800." 
 
 Held, that this difference between the 
 market value and the amount which 
 defendant had represented to be the 
 value, was too inc rsiderable to be a 
 ground for setting aside the sale, and the 
 plaintiff's bill was dismissed with costs. 
 Bonney w.Bonney, 9 M.R. 280. 
 
 2. Remuneration of trustee^Cosis — 
 Appeal as tc ccsts. 
 
 This was an action against defendant 
 for a reconveyance to the plaintiff of 
 certain lands which she had, for her own 
 purposes and by the advice of her soli- 
 citor, conveyed to defendant to hold in 
 trust for her, and asking an account of 
 certain money which defendant had 
 received by mortgaging the property. 
 The statement of cMim also charged 
 misconduct in various ways, but none 
 was proved. The statement of defence 
 offered to reconvey the property and 
 account for all moneys received, but 
 defendant claimed a sum of $100 which 
 plaintiff had agreed to allow him for his 
 services as trustee. 
 
 In ordering the reconveyance and taking 
 of accounts, the trial Judge directed that 
 no remuneration be allowed to the defend- 
 ant and dechned to make any order for 
 costs. 
 
 Held, (1) That defendant should be 
 aUowed the $100 remuneration agreed 
 on. ' 
 
 (2) Following Hill on Trustees, .566, 
 and cases there cited, no misconduct 
 having been proved, that defendant was 
 entitled to^ his costs as between solicitor 
 and client. 
 
 (3) That an appeal as to costs may be 
 heard and decided where, as here, the 
 appellant succeeds on another substantial 
 ground of appeal : Harpham v. Shack- 
 lock, 19 Ch. D. at p. 215. 
 
 Semble, that an appeal as to costs may 
 sometimes be entertained though there 
 be no other question raised on the appeal, 
 as where the giving or withholding of 
 costs is not wholly discretionary, as in 
 the case of a trustee guilty of no mis- 
 conduct : Taylor v. Dowlen, L.R. 4 Ch. 
 697 ; Re Hoskins, 6 Ch. D. 281 ; Farrow 
 V. Austin, 18 Ch. D. 58 ; Re Knight's 
 Will, 26 Ch. D. 82 ; or when the appellant 
 raises some other ground of appeal not 
 merely colorable, although he does not 
 succeed in it : Att. Gen. v. Butcher, 4 Russ. 
 180; Fitzgibbon v. Scanlan, 1 Dow, 261. 
 Scarry v. Wilson, 12 M.R. 216. 
 
 See Banks and Banking, 8. 
 
 — Garnishment, IV, 1. 
 
 — Indemnity, 1. 
 
 — Interpleader, IX, ■ 4.. 
 
 — Money Had and Received. 
 
 — Pleading, VI, 1. 
 
 — Practice, "II, 4; XXVIII, 22. 
 
 — Rectification of Deed, 1. 
 — ■ Sbt-Ofp, 5. 
 
 TRUSTEE FOR SALE— POWERS OF. 
 
 See Rectification op Deed, 1. 
 
 TRUSTEES. 
 
 1. Moneys admitted to be in his' 
 hands — Order for payment of same into 
 court. 
 
 This was a suit in equity brought by 
 the creditor^ of one Pritchard to enforce 
 the trusts of an assignment made by 
 Pritchard to the defendant for the benefit 
 of his creditors. 
 
 A decree having been made referring 
 it to the Master to take an account of 
 the property, effects and credits come to 
 the hands of the defendant under the 
 assignment, the taking of the accounts 
 was proceeded with in the Master's office . 
 until the long vacation commenced. 
 
1179 
 
 TRUSTS. 
 
 1180 
 
 It then appeared that there was a balance 
 of about $722.00 admitted to be in the 
 hands of the defendant, and an affidavit 
 was filed showing that he had admitted 
 that he could not prove a further item, 
 amounting to $283.70, of his charges 
 against the estate. The reference having 
 to stjnd over until after vacation, the 
 plaintiff moved for an order to compel 
 the defendant forthwith to pay into court 
 $1,000.00. 
 
 Held, that the order should be made 
 as defendant had practically admitted 
 that he was indebted to the trust estate 
 in that amount. 
 
 The trustee might, notwithstandii^ 
 the admissions, meet the appHcation by 
 showing that the existence of the balance 
 claimed was doubtful and a matter yet to 
 be investigated, or by showing that he 
 had a clear and distinct interest in such 
 balance which should induce the Court 
 to refuse the order as to the whole or 
 some part of the fund. But the onus 
 is upon him to show such a state of 
 facts, and the defendant in the present 
 case had shown nothing beyond a sug- 
 gestion that he might be one of the cre- 
 ditors, entitled to share in the balance. 
 Bole V. Mahon, 10 M.R. 150. 
 
 2. Bill to remove trustee under an 
 assignment — Parties to action. 
 
 The defendant Charles Bradford, be- 
 coming insolvent, made an a.ssignment 
 to his father, the defendant Henry Brad- 
 ford, in trust for his creditors, and the 
 plaintiffs, attaching creditors, filed this 
 bill for the removal of the trustee and 
 the appointment of a receiver. 
 
 The objection was taken that Charles 
 Bradford was not a proper party and 
 that as to him the bill should be dis- 
 missed. 
 
 Held, that as the bill sought to remove 
 a trustee, and Charles Bradford was one 
 of the cestuis que trustent interested, being 
 entitled to any surplus after payment of 
 the creditors, he was a proper Jjarty, 
 and that, although the plaintiffs might 
 not be entitled to recover costs against 
 him as prayed, he could not, if he were 
 otherwise a proper party, call for the bill 
 being dismissed against him. Stobart v. 
 Bradford, 11 C.L.T. Occ. N. 207. 
 
 3. Remuneration — Commission on 
 amount handled. 
 
 Where there has been nothing special 
 in the management or winding up of an 
 
 estate, a percentage on the gross amount 
 come to the hands -of the executors or 
 trustees wiU generally be allowed to them 
 as remuneration. 
 
 In this case the value of the estate real- 
 ized by the executors was $39,348, of 
 which they had properly paid out and 
 disbursed $21,814, leaving $17,634 still 
 in their hands which could not aU be 
 paid out before nine years. On the 
 application of the executors for interim 
 remuneration, the Court allowed them 
 4 per cent, on the $21,814, and 2 per 
 cent, on the $17,534 not yet paid out, 
 in addition to the sum charged for 
 the services of a book-keeper, giving 
 them leave to apply for a further allow- 
 ance at the final winding up" of the estate. 
 Be Cursitor, 9 M.R. 433. 
 
 See Executors and Administrators, 4. 
 
 — Lunatic, 1. 
 
 — Will, JII, 1. 
 
 TRUSTS, 
 
 See Real Pbopbrtt Act, IV. 
 — Registered Judgment, 8. 
 
 TRUSTS IN WILLS. 
 
 See Will, I, 2, 3. 
 
 ULTRA VIRES. 
 
 See Company, IV, 7, 10. 
 
 — Constitutional Law. 
 
 — Corporation, 6. 
 
 — Criminal Law, XIV, 4. 
 
 — Election Petition, VII, 1. 
 
 — Municipality, 1,2, 7; V, 2; VII, 3, 4, 
 
 5,7,9; VIII, 4. 
 
 — Nuisance, 1. 
 
 — • Prohibition of Sale op Liquor. 
 
 — Street Railway. 
 
 — Taxation, 3. 
 
 UNCERTAINTY. 
 
 See Municipality, I, 5; VII, 4. 
 
 — Vendor and Purchaser, VI, 14. 
 
 — Will, II, 3. 
 
1181 
 
 UNDERTAKING OF SOLICITOR. 
 
 1182 
 
 UNDERTAKING OF SOLICITOR. 
 
 See Solicitor, 9. 
 
 tJNDERTAKING TO PAY DAMAGES. 
 
 See Ratification. 
 
 UNDISCLOSED PRINCIPAL. 
 
 See Principal and Agent, V, 10. 
 
 UNDUE INFLUENCE. 
 
 Father and son- 
 
 senlaiions. 
 
 -Fraudulent misre-pre- 
 
 The defendant was induced to sign the 
 .promissory note for $500 sued on, as 
 security for his father. ' He was only 22 
 years old and his account of what took 
 place when he signed the note was that 
 the plaintifis' manager represented to 
 him that a third palrty, who was liable 
 for the debt along with the father, had 
 offered to pay $200 or $250, and that with 
 that and what they had in the warehouse 
 there would not be very much for him 
 to pay. The defendant's father was also 
 present at the interview and impor- 
 tuned the son to come to his reUef by 
 signing l^e note, which he did very re- 
 luctantly and after refusing at first. 
 The plaintiffs' manager and their solicitor, 
 who was also present, denied these state- 
 ments at the trial in the court appealed 
 from, but the Judge entered a verdict 
 for the defendant thereby accepting his 
 version of the facts. 
 
 No evidence was given as to whether 
 or not the third party referred to had 
 actually made any such offer, nor was 
 anything said as to the amount or value 
 of what was in the warehouse as being 
 applicable in reduction of the debt. 
 
 Held, that the defendant was not liable 
 on the note as there was undue influence 
 brought to bear upon him and misre- 
 presentation as to the aJnount of the 
 liability he was incurring, and a want of 
 independent advice to one so young, all 
 of which brought the case within the 
 principles laid down in Bank o/ Montreal 
 V. Stuart, [1911] A.C. 120. 
 
 Per Cameron, J. A., dissenting. The 
 aDeged representation as to the offer 
 that had been made by the third party 
 was not proved to have been false and 
 therefore that ground failed. As to the 
 statement that " there was furniture in 
 the warehouse," this was not of itself so 
 material to the transaction that the 
 falsity of it would vitiate the note, and 
 th»e was not sufficient in the facts relied 
 on to warrant a finding that any " undue 
 influence," within the meaning of that 
 term as used in the decided cases, had 
 been brought to bear upon the defendant 
 as he was able to take care of himself 
 and fuUy understood the nature of the 
 transaction. Lewis Furniture Co. v. Camp- 
 beU, 21 M.R. 390. 
 
 See Alimony, 6. 
 
 — Dttbess, 2. 
 
 — Fraud, 2. 
 
 — Solicitor and Client, I, 2. 
 
 — Will, III, 4, 7. 
 
 UNINCORPORATED ASSOCIATION. 
 
 See Bills and Notes, VIII, 7. 
 
 UNITED STATES. 
 
 See Extradition, 8. 
 
 UNLIQUIDATED DAMAGES. 
 
 See Garnishment, II, 1. 
 
 — Negligence, VII, 7. 
 
 — Set Off, 6. 
 
 UNPATENTED LANDS. 
 
 See Homestead, 6. 
 — • Prohibition, I, 8. 
 
 — Real Property Act, V, 8. 
 
 — Taxation, 4. 
 
 UNREASONABLENESS. 
 
 See Mtjnicipalitt, I, 6. 
 
1183 , UNREGISIERED PRIOR CHARGE. 1184 
 
 UNREGISTERED PRIOR CHARGE. VARIATION OF AGREEMENT. 
 
 See Registry Act, 3. See Vendor and Purchaser, VI, 5, 15. 
 
 UNSETTLED ACCOUNT. 
 
 Prohibition, I, 2. 
 
 USE OF STREETS BY COMPANY. 
 
 See Company, IV, 14. 
 
 ^ Municipality, VIII, 7. 
 
 USURY. 
 
 See Money Lender's Act, 2. 
 
 VACANT LAND. 
 
 See Mortgagor and Mortgagee, IV, 1 , 2. 
 
 VAGRANCY. 
 
 See Criminal Law, XV, 1, 4. 
 
 VAGUENESS AND UNCERTAINTY. 
 
 See Deed op Settlement. 
 — Railway Commissioners for Can- 
 ada, Board op 
 
 VALUATION. 
 
 See Expropriation op Land, 1. 
 — Vendor and Purchaser, VI, 2. 
 
 VARIANCE. 
 
 See Bills and Notes, III, 1. 
 
 — Election Petition, III, 3. 
 
 — Injunction, III, 4. 
 
 VENDOR AND PURCHASER. 
 
 I. Agreement op Sale. 
 
 II. Cancellation op the Contract. 
 
 III. Incumbrances. 
 
 IV. Rescission of the Sale. 
 V. Return op Money Paid. 
 
 VI. Specific Performance. 
 VII. Miscellaneous Cases. 
 
 I. Agreement op Sale. 
 
 1. Bond to secure payment of pur- 
 chase money with additional sti- 
 pulation for payment even although 
 obligees should be unable to make 
 title to the land. 
 
 Defendants with others had entered 
 into an agreement with the plaintiffs that 
 they would respectively purchase certain 
 lands at a price a^eed on, $2 per acre of 
 which was to be paid on 1st November, 
 1905. Defendants afterwards executed 
 the bond sued on in this action. 
 
 This bond stated that it was given 
 expressly to secure the said payment of 
 $2 per acre, but it contained an additional 
 stipulation for payment to the plaintiffs 
 of $2500, part of the instahnent of $2 per 
 acre, to and for their, own use and benefit 
 as liquidated damages for their services 
 rendered and to be rendered in using 
 every possible endeavor to have the 
 lands surveyed and located as soon as 
 possible, and that such services should be 
 a sufficient performance of the agreement 
 on their part. 
 
 In the opinion of the Court, the plain- 
 tiffs failed to show at the hearing that 
 they had ever acquired title to the lands 
 or any legal or enforceable right to pur- 
 chase them. 
 
 Held, that, as the plaintiffs could not 
 recover under the agreement, neither 
 could they on the bond, which should be 
 construed as one merely given, as it said, 
 to secure the instalment of purchase 
 money, disregarding the stipulation above 
 referred to as being fraudulent as against 
 the defendants. Colwell v. NeufeM, 19 
 M.R. 517. 
 
 Affirmed in Supreme Court, 1 W.W.R. 
 779. 
 
1185 
 
 VENDOR AND PURCHASER. 
 
 1186 
 
 2. Stipulation for formal contract 
 
 — Waiver — Contract. 
 
 Action to recover payment of an in- 
 stalment of purchase money under an 
 agreement of sale of land in the form of a 
 written option signed by the plaintiffs 
 and accepted in writing by the defend- 
 ant. The option contained all necessary 
 terms cf "the proposed purchase including 
 a provision . that, should the defendant 
 sell any portion of the lands, the plain- 
 tiffs would execute a transfer or convey- 
 ance of the lands sold provided that the 
 amounts had been agreed upon between 
 the plaintiffs and defendant and, in the 
 event of their being unable to agree, 
 then provided the selling price was at a 
 fair valuation to be determined by named 
 arbitrators. It contained also a clause 
 providing that upon the exercise of the 
 said option a formal agreement of sale 
 should be entered into between the 
 parties containing such terms and con- 
 ditions as were suitable and usually con- 
 tained in the form of an agreement of 
 sale in common use by the firm of Tupper, 
 Phippen & Co. The letter of acceptance 
 also contained the defendant's statement : 
 " I shall be pleased to have ycu arrange 
 for the preparation of the formal agree- 
 ment of sale." 
 
 No formal agreement was ever pre- 
 pared or executed, but the defendant, 
 before the due date of the instalment ■ 
 sued for, entered into an agreement for 
 the sale of a considerable portion of the 
 property and applied for and obtained 
 a conveyance of such portion from the 
 plaintiffs upon payment of an amount 
 agreed upon between the parties. 
 
 Held, (1) That there was a completed 
 contract between the parties enforce- 
 able by the plaintiffs notwithstanding 
 the absence of the more formal agree- 
 ment contemplated. 
 
 The principles laid down by Lord 
 Westbury in Ckinnock v. Marchioness of 
 Ely, (1865) 4 De G. J. & S., 638, and 
 Rossit^ V. Miller, (1878) 3 A.C. 1124, 
 adopted. 
 
 (2) That, if it had been otherwise, 
 the defendant had waived his right to 
 have a formal agreement executed by 
 making the sale referred to. Munroe 
 V. Heubach, 18 M.R. 450. 
 
 II. Cancellation op the Contract. 
 
 1. Construction of contract — Agree- 
 mefd far sale of land — Proviso for can- 
 ceUation by givinq twenty days' notice. 
 
 An agreement of sale of land con- 
 tained a proviso that, in default of pay- 
 ment of any of the mstalments payable 
 under it, the vendor should be at liberty 
 to determine and put ^n end to the 
 agreement and to retain any money 
 paid, "in the following method, that is 
 to say, — by mailing***a notice****in- 
 timating an intention to determine this 
 agreement, addressed to the purchaser," 
 and that, at the end of twenty days from 
 the time of mailing the same, the pur- 
 chaser should dcUver up quiet possession 
 of the land to the vendor or his agent, 
 immediately at the expiration of said 
 twenty days. 
 
 Held, that the agreement could not 
 be construed as providing that it could 
 be cancelled immediately on default 
 in payment of the money on the day fixed 
 by the mailing of the notice provided 
 for, but that the purchaser was entitled 
 to the time specified to make good his 
 defaiilt. Paget v. Bennetto, 17 M.R. 356. 
 
 2. For default of purchaser — Differ- 
 ent modes of cancellation provided in agree- 
 ment ■^- Equitable relief against forfeiture. 
 
 The agreement of purchase by plain- 
 tiff from defendant of the land in question 
 provided in one paragraph that, in case 
 the purchaser should at any time be in 
 default the vendor should be at hberty at 
 any time after such default, with or with- 
 out notice to the purchaser, to cancel the 
 contract and declare the same void and 
 forfeit any pajrments that might have been 
 made on account thereof and retain all 
 improvements, &c., and that the vendor 
 should be entitled, immediately jipon 
 any default as aforesaid, without giving 
 any notice or making any demand, to 
 consider and treat the purchaser as his 
 tenant holding over without permission 
 or any iolor of right, and might take im- 
 mediate possession of the premises and 
 remo-^e the purchaser therefrom. 
 
 Further on in the agreement, and 
 separated from the above provision 
 by other covenants, there were provisions 
 for two other modes of cancellation in 
 case of default, one by service of a notice 
 personally on the purchaser of intention 
 to exercise the power of cancellation 
 after one month, to be followed at the 
 end of the month by a notice similarly 
 served declaring the cancellation to be 
 coinplete and effective, and the other by 
 notice, after the default had continued 
 for three months, declaring the contract 
 null 'and void, " addressed to the pur- 
 
1187 
 
 VENDOR AND PURCHASER. 
 
 1188 
 
 chaser directed to the Post Office at * * * * 
 and deposited in the Post Office at * * * *." 
 
 Held, that, upon plaintiff maJdng de- 
 fault, the defendant had a right to select 
 any one of the three modes of cancellation 
 provided for, and that a notice pursuant 
 to that first above quoted, personally 
 served upon the defendant, was valid 
 and effectual as a cancellation of th^ 
 agreement, subject to the power of the 
 Court to give equitable relief if the cir- 
 cumstances should warrant it. 
 
 Canadian.Fairbahks v. Johnston, (1909) 
 18 M.R. at 601, referred to. 
 
 The defendant having, in his statement 
 of defence, submitted to redemption by 
 the plaintiff upon payment of the arrears 
 and certain expenses, judgment was 
 given accordingly, allowing the plaintiff 
 two months after the Master's report 
 to pay the amount found due by him and 
 costs, and in default that the agreement 
 should be cancelled. Perks v. Scoit, 21 
 M.R. 570. 
 
 3. Equitable relief — Agreement for 
 sale of land ^- Rescission pursuant to 
 power in agreement for default in payment 
 of instalment of purchase money — Specific 
 performance — Laches. 
 
 Pursuant to a provision in the agree- 
 ment of sale by the defendants to the 
 plaintiff of certain lands, the defendants 
 on 29th April, 1909, gave written notice 
 to the plaintiff that, by reason of his 
 default in payment of the two annual 
 instalments of the purchase money due 
 7th September, 1907, and 7th September, 
 1908, respectively, thej thereby can- 
 celled the said agreement and declared 
 the same void and forfeited the payment 
 on account already made by the plain- 
 tiff. Time was in the agreement declared 
 to be of the essence of it. 
 
 The plaintiff made a tender to defend- 
 ants on 16th June, 1909, of the amount 
 in arrears for principal and interest, but 
 defendants refused to accept it, where- 
 upon this action for specific performance 
 was commenced. Defendants - did not 
 set up, as a defence, either laches or 
 abandonment of the contract on the 
 plaintiff's part and, on the argument of 
 the appeal, defendants' counsel stated 
 that they did not rely on any such defence. 
 
 Held, that the contract was not re- 
 scinded by such notice, as the plaintiff 
 was not thereby given an apportunity 
 of making good his default, and that, 
 even if the notice had in effect cancelled 
 and annulled the contract, the Court 
 
 could, and in this case should, laches 
 not having been set up as a defence, 
 gi-ant relief against the forfeiture and 
 decree specific performance at the suit 
 of the plaintiff. 
 
 In re Dagenham Dock Co., (1873) L.R. 
 8 Ch. 1022 ; WaUis v. Smith, (1882) 21 
 Ch. D. 273 ; Public Works Commr. v. 
 Hills, [1906] A.C. 368 ; Cornwall v. 
 Henson, [1900] 2 Ch. 298, and Canadian 
 Fairbanks v. Johnston, (1909) 18 M.R. 
 589, foUowed. 
 
 Steele v. McCarthy, (1908) 7 W.L.R. 
 902, not foUowed. 
 
 Per Howell, C. J. A., dissenting. The 
 plaintiff had been guilty of such laches 
 and unexplained delay that he was not 
 entitled to any relief. Whitla v. River- 
 view Realty Co., 19 M.R. 746. 
 
 Distinguished, Dalziel v. Homeseekers' 
 Land Co,, 20 M.R. 736. 
 
 4. Notice of — Agreement of sale of 
 land — Rescission of contract by notice 
 pursuant to conditions thereof — Forfeiture 
 — Time. 
 
 The defendant held possession of the 
 land in question under an agreement 
 of pm-ohase which provided that, in 
 default of payment of any instalment 
 W the purchase money, the vendor 
 should be at liberty to determine and 
 put an end to the agreement * * * *, and 
 to retain any sum or sums paid thereunder 
 as and by way of liquidated damages, by 
 serving a notice intimating an intention to 
 determine the agreement, and that, at the 
 end of thirty days from the mailing or 
 delivery of such notice, if such default 
 should not be remedied in the meantime, 
 the purchaser should deliver up quiet and 
 peaceable possession of the land to the 
 vendor o; his agent, and the agreement 
 should become void and be at an end and 
 all rights and interests thereby created 
 or then existing in favor of the purchaser 
 or derived under the agreement should 
 thereupon cease and determine and the 
 premises should revert to and revest in 
 the vendor without any further declar- 
 ation of forfeiture or notice or act of 
 re-entry and without any other act by 
 the vendor to be performed and without 
 any suit or legal proceedings to be brought 
 or taken and without any right en the 
 part of the purchaser to any compen- 
 sation for moneys paid under the agree- 
 ment. The iigreiement also contained 
 the clause — " Time shall be in every 
 respect of the essence of this aereement " 
 
1189 
 
 VENDOR AND PURCHASER. 
 
 1190 
 
 Held, that a notice served upon the 
 defendant by the vendors' assignee, after 
 default in payment, that " the said agree- 
 ment is hereby determined and put mi, end 
 to and unless such default shall be reme- 
 died by you within thirty days * * * * 
 you shall then be required to deliver up 
 quiet and peaceful possession of the said 
 lands and premises and said agreement 
 shall be absolutely nuU and void and all 
 rights," &c., (following the wording of 
 the clause quoted) was not in accordance 
 with the terms of the power and was 
 therefore ineffectual to put an end to or 
 determine the agreement or to entitle 
 the vendor's assignee to an order of the 
 Court for possession of the land. 
 
 Such powers of rescission must be 
 strictly followed and their exercise sub- 
 jected to rigorous scrutiny in a court of 
 equity just as in cases of notices under 
 powers of sale in mortgages. 
 
 Held, further, that, even if the notice 
 had been worded in strict accord with 
 the power in the agreement, the latter 
 should be treated as in the nature of a 
 • penalty against which the Courts will 
 reheve. 
 
 In re Dagenham Dock Co., (1873) L.R. 
 8 Ch. 1022, and Cornwall v. Henson, 
 [1900] 2 Ch. 298, followed. 
 
 Semble, the plaintiff's remedy would 
 be to commence an action in the nature 
 of specific performance to have the 
 contract cancelled by decree of the 
 Court upon default after a time to be 
 fixed by the Court: Per Killam, J., in 
 Hudson's Bay Co. v. MacdonaU, (1887) 4 
 M.R. 327, and Jessel, M.R., in Lysaght 
 V. Edwards, (1876) 2 Ch. D. 506. Can- 
 adian Fairbanks Co. v. Johnston, 18 M.R, 
 589. 
 
 5. One month's notice — Notice of 
 cancellation for default in payment of 
 purchase money — Actual notice giving 
 thirty days only. 
 
 • A proviso in the agreement of sale 
 between the plaintiff (purchaser) and 
 the defendant (vendor) authorized the 
 defendant to cancel it after two months 
 default by giving one month's notice in 
 writing. 
 
 Defendant, on 26th March, gave 
 plaintiff notice allowing plaintiff only 
 30 days to make pajmient. 
 
 Held, that the notice was not sufficient 
 to effect a, cancellation of the agreement. 
 Le Neveu v. McQuarrie, 21 M.R. 399. 
 
 6. Recovery by purchaser of money 
 paid on account — Counterclaim. 
 
 In an action tjy the vendor of land 
 against the purchaser for specific per- 
 formance of the agreement to purchase 
 or in the alternative for cancellation of 
 the agreement for default in subsequent , 
 pajTnents, if the purchaser has ac- 
 quiesced in the cancellation after notice 
 thereof served on him by the vendor, 
 he cannot recover back by counterclaim 
 the money which he had originally paid 
 on account of the purchase. Miller v. 
 Sutlon, 20 M.R. 269. 
 
 7. Repayment of moneys paid on 
 account — Equitable relief — 'Specific 
 performance. 
 
 The plaintiff agreed to purchase from 
 the defendants certain lands for the sum 
 of $500, payable as follows : $60 cash 
 and $20 per month thereafter till the 
 full amount should be paid. The agree- 
 ment provided that time should be of 
 the essence of the contract and contained 
 the usual proviso for cancellation by 
 notice in case of default fuUy set out in 
 the judgment. Plaintiff having made 
 default in payment of six monthly in- 
 stalments, defendants gave notice of 
 cancellation pursuant to the agreement 
 and afterwards sold and conveyed, the 
 land to a third party. 
 
 About two and a half years after the 
 last payment by plaintiff, he brought this 
 action for specific performance, or, in 
 the alternative, for a return of the money 
 he had paid. 
 
 , Held, that the effect of the default, 
 the giving of the notice and the continued 
 default was, at common law, to cancel 
 the contract and, unless equity would 
 reheve, to enable the vendor to retain 
 both the land and the money paid, and 
 that the plaintiff, having deUberately 
 refrained from continuing his monthly 
 payments for over two years and a half 
 because the land had diminished in value 
 and he was in doubt whether it " would 
 do him any good " to pay any more in- 
 stalments, was not entitled to any equit- 
 able relief, either by way of specific 
 performance or against the forfeiture 
 provided for by the contract, and there- 
 fore could not recover the amount he 
 had paid. 
 
 Whitlav. Riverview, (1910) 19 M.R. 
 746, distinguished, as in that case, be- 
 cause of the pleadings and the refusal 
 of counsel to raise the point, the question 
 of the pu chaser's laches was, in the view 
 
1191 
 
 VENDOR AND PURCHASER. 
 
 1192 
 
 of the majority of the Court, not before 
 it for decision. Dalziel v. Homeseekers' 
 Land & ColonizaUon Co., 20 M R. 736. 
 
 III. Incumbrances. 
 
 1. Liability of purchaser to indem- 
 nify vendor against incumbrances — 
 
 Assignment of right to indemnity to the 
 holder of the incumbrance — Right of action 
 by incumbrancer against purchaser direct — 
 Real Property Act, R.S.M. 1902, c. 148, 
 s. 89. 
 
 The defendant took a transfer of land, 
 absolute in fact as well as in foim, from 
 one Williams and agreed to assume a 
 m'ortgagfe en the property held by the 
 plaintifi. 
 
 Held, that the plaintiff, who had 
 obtained an assignment from WiUiams 
 of her right of indemnity against the 
 defendant under the transfer, had a good 
 cause of action to recover the amount of 
 his mortgage from the defendant direct. 
 
 Short V. Graham, (1908) 7 W.L.R. 787, 
 distinguished. Morice v. Kernighan, 18 
 M.R. 360. 
 
 2. Right of purchaser to recover 
 after conveyance in respect of incum- 
 brances then discovered — Transfer 
 undef Real Property Act — Mistake as 
 to amount of incumbrances — Caveat emptor 
 — Misdescription in particulars of sale — 
 Merger of agreement in subsequent deed. 
 
 The plaintiff agreed to purchase from 
 the defendant certain Winnipeg City 
 property for $11,200, " assuming the sum 
 of $5,500 " on it and to pay for it by 
 conveying to the defendant two farm 
 projjerties valued at $10,500 subject to 
 an incumbrance of $200, the difference 
 $4,000, to be adjusted by the defendant 
 giving two mortgages on the farms. 
 The plaintiff then accepted transfers 
 of the City property under The Real 
 Property Act, and conveyed one of 
 the faims to the defendant who gave 
 a mortgage for $2,000 upon it, the pro- 
 ceeds of which were paid to the plaintiff. 
 
 The plaintiff then discovered that the 
 total incumbrances on the City properties 
 exceeded the amount assumed . by $950. 
 He .then postponed the conveyance of 
 the other farm to the defendant and 
 brought this action to recover the $950 
 and for other relief. 
 
 Held, that, as the agreement between 
 the parties had only been partially carried 
 out, it could not be said to have become 
 merged in the transfer accepted by the 
 
 plaintiff, and this took the case out Of 
 the principles laid down in Joliffe v. 
 baker, (1883)' 11 Q.B.D. 255; Palmer v. 
 Johnson, (1884) 13 Q.B.D. 351, and 
 Clayton v. Leech, (1889) 41 Ch. D. 103, and 
 that the plaintiff was entitled to a ven- 
 dor's lien on the lands conveyed and to 
 be conveyed by him for the amounts 
 mentioned in the agreement with the 
 addition of the $950 in question. Foster 
 V. Stifler, 19 M.R. 533. 
 
 IV. Rescission of the Sale. 
 
 1. For default in payment of an 
 instalment — Specific performance or 
 rescission — Demurrer — Chose in action. 
 
 There is a distinction between a bill 
 for specific performance, and a bill asking 
 that a time may be fixed for payment 
 and, in default, rescission. 
 
 The principle upon which the Court 
 acts in decreeing cancellation of an agree- 
 ment for the sale of land, is practically 
 the same as that on which foreclosure of 
 a mortgage is decreed. 
 
 Consequently, a bill for rescission may 
 be filed for default in payment of an 
 instalment, although the whole purchase 
 , money may not be due. 
 
 An agreement for the sale of land 
 provided that upon default the vendor 
 might re-enter or re-sell. 
 
 Held, that, without exercising these 
 powers, the vendor" might file a bill for 
 rescission. 
 
 It is not necessary to allege that an 
 assignment from a vendor of his interest 
 in the property was in writing. When it 
 is stated generally in a pleading that there 
 is an agreement, or assignment or other 
 contract, and it does not appear on the 
 face of the pleading that it is invalid, 
 the Court will assume that it is valid. 
 Assignments of chases in action may in 
 equity be by parol. West v. Lynch, 5 
 M.R. 167. 
 
 2. Limiting time for payment by 
 notice-^" Prowling assignee." 
 
 Three of the defendants agreed to 
 purchase certain lots from the H. B. Co., 
 one-fifth to be paid in cash and the balance 
 in instalments ; time to be of the essence 
 of the contract. These three defendants 
 sold to Mrs. C, their co-defendant, who 
 afterwards filed a bill to rescind the sale 
 on the ground of fraud, and for a Uen upon 
 the land for her purchase money. Pend- 
 ing the litigation the plaintiff paid off 
 the H. B. Co. and took a conveyance 
 
1193 
 
 VENDOR AND PURCHASER. 
 
 1194 
 
 subject to the agreement. Shortly after- 
 wards he filed a biU in the name of the 
 Co. against the same defendants for a 
 rescission of the contract. This was dis- 
 missed because the Co. had parted with 
 its interest. 
 
 The plaintiff then gave the defendants 
 notice to pay in three weeks, and in 
 default that he would rescind. Pajrment 
 not having been made upon the date 
 fixed, this bill was filed to declare the 
 contract rescinded and that the various 
 documents might be declared to be 
 clouds upon the plaintiff's title. 
 
 Held, 1. That the time given for re- 
 demption was reasonable, and that the 
 defendant Mrs. C. was not now entitled 
 to redeem. 
 
 2. Upon the evidence that the plaintiff 
 was not disentitled to relief as being a 
 " prowling assignee." Wickson v. Pear- 
 son, 3 M.R. 457. 
 
 3. Necessity of formal notice of — 
 
 Specific performance — Landlord and 
 tenant — Waiver — Laches. 
 
 The plaintiff became tenant of a farm 
 under a lease from C. for seven years at 
 an annual rental of $450, payable on the' 
 15th of October in each year. Con- 
 temporaneously with the lease an agree- 
 ment of purchase of the property was 
 entered into between the plaintiff and C, 
 by which the latter agreed to accept as 
 part payment of the purchase money all 
 sums of money which should be paid 
 by the plaintiff as rent under the lease, 
 and the plaintiff covenanted, at the 
 expiration of eight years from the date 
 of the instrument, to pay the balance 
 of the pm'chase money with interest. 
 There was also the covenant of C. to 
 convey upon payment, an option to the 
 plaintiff to pay off the full amount and 
 receive a conveyance at amy time, and 
 finally the following proviso : " It is 
 expressly understood and agreed that 
 time is to be oonsidejred the essence of 
 this agreement, and unless the payments 
 are punctually made the said party of 
 the first part shall at his option declare 
 this agreement null and void, all payments 
 made thereimder shall be forfeited, and 
 the said party of the first part shall be 
 at liberty to resell the said land, the sajd 
 party of the second part hereby agreeing 
 to convey to the said party of the first 
 part his interest in the same when and 
 as soon as such default occurs." 
 
 The lease contained a proviso for re- 
 entry, in the statutory short form, for 
 
 non-payment of rent. C. afterwards 
 conveyed the land in fee to the defendant 
 Pahnatier subject to the lease and agree- 
 ment. 
 
 Default having occurred in payment 
 of the rent due on 15th October, 1897, 
 the defendant Palmatier leased the pro- 
 perty to the defendant Mills with an 
 option of purchase before the end of the 
 first year of the term, and Mills at once 
 entered into possession. 
 
 Held, (1) That the lease and agreement 
 between C. and the plaintiff should not 
 be considered as independent contracts, 
 and that C. or his assignee might rescind 
 the agreement of sale for default in 
 payment of any rent called for by the 
 
 (2) That a formal notice or declar- 
 ation of rescission of the contract was not 
 necessary as the plaintiff was aware 
 of the lease to Mills, his taking possession 
 under it, and of Palmatier's intention 
 to rescind. 
 
 (3) The plaintiff, haying made default 
 as regards an essential term of the agree- 
 ment, was not entitled to the exercise 
 of the discretion of this Court to order 
 specific performance in his favor after 
 the position of the parties had been 
 entirely changed. 
 
 Held, also, per Richaeds, J., that the 
 laches of the plaintiff barred her from the 
 remedy of specific performance against 
 the defendant Mills, who had made 
 valuable improvements without notice 
 that the plaintiff intended to claim 
 specific performance. Moir v. Palmatier, 
 13 M.R. 34. 
 
 4. By one of several joint pur- 
 chasers. 
 
 Property having been sold to five 
 persons who purchased jointly. 
 
 Held, that one of the purchasers, es- 
 tablishing a misrepresentation, could not 
 rescind the contract so far as he was 
 alone concerned, and recover his share 
 of the purchase money. Braunv. Hughes, 
 3 M.R. 177. 
 
 5. Parties — Pleading — Waiver — 
 Fixtures — Specific performance or for 
 rescission. 
 
 Distinction between a specific perform- 
 ance suit and one to rescind a contract 
 in case of failure to perform by a specified 
 time. 
 
 The plaintiffs agreed to sell to B. 
 certain lands upon certain terms. B. 
 paid a portion of the purchase money 
 
1195 
 
 VENDOR AND PURCHASER. 
 
 1196 
 
 and afterwards conveyed to the defend- 
 ant. Afterwards the plaintiffs removed 
 certain buildings from the lands. The 
 buildings were large and built upon 
 stone foundations, a portion of which, 
 either originally or by pressure, were 
 beneath the level of the ground. Upon 
 a bill against the defendant alone for 
 payment or rescission, the defendant 
 claimed repayment of the money paid to 
 the plaintiffs. 
 
 Held, 1 . That prima facie the buildings 
 were fixtures. 
 
 2. That the purchaser would have been 
 entitled under such circumstances to 
 sue for the return of the purchase money. 
 
 3. That the present defendant could 
 not recover the money in the absence of 
 B. 
 
 4. That no decree for rescission could 
 be made in the absence of B., the de- 
 fendant having in no way been sub- 
 stituted for B. as purchaser. 
 
 5. To obtain a decree for specific 
 performance by .vendor with an abate- 
 ment from the purchase money by reason 
 of the removal of the buildings, the bill, 
 must be so framed. 
 
 6. Waiver must be specially pleaded. 
 Hudson's Bay Co. v. MacDonald, 4 M.R. 
 237. 
 
 6. Penalty — Ejectment after default. 
 
 A biU by a vendor alleged that by the 
 contract time for the deferred payments 
 should be o; the essence of the agreement, 
 • and that upon default the vendor should 
 be at liberty to re-enter upon or re-sell 
 the lands, all payments on account 
 being forfeited ; that certain payments 
 on account had been made, (not shewing 
 whether before or after the day fixed for 
 the la?t instalment) ; ' that there had 
 been dealings between the parties and 
 an extension of time given "for payment 
 of some of the instalments," not saying 
 which of them. The prayer was for a 
 declaration that the contract was at 
 an end and void and that it should be 
 delivered up to be cancelled ; and for 
 possession. 
 
 A demurrer was allowed upon the 
 grounds : — 
 
 1. That it was nowhere alleged that 
 the plaintiffs had rescinded the agree- 
 ment, but, on the contrary, they seemed 
 to have continued to deal with, and 
 receive payments from, the purchaser. 
 
 2. That the right reserved was in the 
 nature of a penalty, and the plaintiffs 
 
 would not be entitled to rescission without 
 hmiting a time for payment. 
 
 3. That, as to the prayer for possession, 
 the purchaser in possession after default 
 would be a tenant at sufferance and not 
 entitled to a demand of possession, but 
 the bill did not clearly shew that the 
 extension of the time given for payment 
 had elapsed. Hudson's Bay Co. v. Mac- 
 DonaU, 4 M.R. 480. 
 
 7. By sale to third party. 
 
 The plaintiff's claim was for payment 
 of an instalment of the purchase money 
 overdue on an agreement of sale of a 
 hotel property to defendant which pro- 
 vided that, upon default in payment, 
 the plaintiff might determine the contract 
 by notice in writing. , 
 
 After the due date of the instalment 
 defendant notified plaintiff that she 
 would not carry out her contract, and 
 about twelve days later plaintiff, without 
 giving defendant any notice, entered 
 into a binding agreement of sale of the 
 property to a third party. He then 
 brought this action. 
 
 Held, following Sawyer v. Pringle, 
 (1891) 18 A.R. 218 ; Sawyer v. Basker- 
 viUe, (1891) 10 M.R. 652, and McCord v. 
 Harper, (1876) 26U.C.C.P., perHAQARTY, 
 C. 3'., at p. 104, that the plaintiff had 
 practicaEy rescinded the contract of 
 sale to defendant and could not thereafter 
 sue upon it. Parent v. Bourbonniere, 
 13 M.R. 172. 
 
 8. Time of the essence — Notice to 
 complete — Reasonable notice. 
 
 Where time is of the essence of the 
 contract the condition may be waived 
 by the purchaser by paying a portion 
 of the money on the day named for 
 completion and consenting to wait for 
 production of title. 
 
 The 1st July, 1882, was fixed for com- 
 pletion. At this time the tit'e was 
 vested in the C.P. Ry. Co., but the vendor 
 had a right of purchase under a contract 
 covering other lands, in which other 
 persons had a similar interest. The 
 vendor had, at the time for completion, 
 paid to the Co. the pvirchase money for 
 his lands, but, others not having paid, 
 the Co. would not convey. On several 
 occasions between the 1st July, 1882, 
 and the 12th January, 1883, the purchaser 
 asked the vendor to complete the title, 
 but did not press him to do so or threaten 
 to rescind if it was not done. On the 
 12th January; 1883, the purchaser served 
 
1197 
 
 VENDOR AND PURCHASER. 
 
 1198 
 
 the vendor with a notice, requiring him 
 to complete the title by the 1st of Feb- 
 ruary, otherwise he would declare the 
 sale off. After receiving this notice 
 the vendor used reasonable diligence 
 to procure the title, but, inasmuch as six 
 weeks was the shortest time within which 
 a deed could be procured from the Rail- 
 way Co., it was not obtained by the 
 day named. 
 
 Held, that the notice was too short, 
 and the purchaser was not entitled to 
 recover his deposit. Fortier v. Shirley, 
 2 M.R. 269. 
 
 9. Title — Reasonable time. 
 
 By agreement in writing defendants 
 agreed to sell to the plaintiffs and the 
 plaintiffs agreed to purchase lots 26, 28, 
 30 and 32 at a certain price, payable 
 one half in one week and the balance 
 on the defendants removing from off 
 the lands, not earlier than the 1st May, 
 and not later than the 12th July. The 
 defendants covenanted that, upon pay- 
 ment of the purchase money, they would 
 convey. Time to be of the essence of 
 the contract. 
 
 Afterwards it was verbally agreed 
 that the defendants should remain in 
 possession until after the time limited. 
 
 In the fall the defendants demanded, 
 payment, and it was then verbally agreed 
 that two weeks' notice should be given. 
 The notice was given, and it was again 
 agreed to extend the time to a pai'ticuiar 
 Monday. 
 
 At that time the defendants had a 
 conveyance from the Hudson's Bay 
 Co. for lots' 26 and 28, a patent for lot 
 30, and a receipt from the Crown for 
 payment in fuU of the purchase money 
 of lot 32. 
 
 On the Monday the plaintiffs tendered 
 their purchase money, but refused to 
 accept the title, and rescinded the con- 
 tract. 
 
 In an action for return of the portion 
 of the purchase money paid. 
 
 Held, 1. That the defendants were 
 entitled to a reasonable time to make 
 title after the last payment had been 
 made, and that the plaintiffs were not 
 in a position to rescind the contract. 
 Guthrie v. Clarlc, 3 M.R. 318. 
 
 10. For want of title — Waiver of 
 rescission . 
 
 After a contract had been made for 
 the purchase of 73 3-10 acres the pur- 
 chaser discovered that the vendor had 
 
 no title to 5 acres of the land. He then 
 gave notice of rescission and demanded 
 a return of his deposit. 
 
 Held, that he was entitled to repajrment. 
 Afterwards the vendor agreed that a 
 portion of the deposit should be returned 
 and the purchaser promised to repay it 
 on the vendor "furnishing satisfactory 
 title" to the property. 29 days after- 
 wards the purchaser commenced this 
 action for the return of the deposit. 
 Meanwhile the vendor had used due 
 diligence to perfect his title and suc- 
 ceeded in doing so 7 days after the issue 
 of the writ. 
 
 Held, that purchaser had waived his 
 rescission; that there was a new agree- 
 ment engrafted on the old one by which 
 the purchaser agreed to wait a reason- 
 able time for the perfecting of the title. 
 Clark V. Everett, 1 M.R. 229. 
 
 11. For want of title — Pleading — > 
 Removal of objection to title after action 
 begun for rescission — Agreement of sale 
 of land. 
 
 Held, per Howell, C.J.A. and Phippbn, 
 J. A. 
 
 (1) In an action by the purchaser for 
 rescission of the agreement of sale on the 
 ground of fraud and misrepresentations, 
 it is too late for the plaintiff, at the hear- 
 ing of the appeal, for the first time to 
 take the position that he is entitled to 
 rescind because the defendants' title is 
 not good. 
 
 (2) The title of the defendants to the 
 lands in question, although it was only 
 under an agreement of purchase from 
 the Q. Company which in turn only held 
 under an agreement of sale from the Can- 
 adian Northern Railway Co., was a suffi- 
 cient equitable title with a right to get 
 in the absolute title before they should 
 be called upon to convey, and the plaintiff 
 could not rescind, although the defend- 
 ants purported to agree to sell and con- 
 vey the fee simple in the lands. 
 
 Shaw V. Foster, (1872) L. R. 5 H. L. 
 350; Egm.ont v. Smith, (1877) 6 Ch. D. 
 476; Re Head's Trustees, (1890) 45 Ch. 
 D. 310; Want v. Stallibrass, (1873) L. R. 
 8 Ex. 175, and Re Bryant, (1890) 44 Ch. 
 D. 219^ followed. 
 
 (3) "The purchaser, not having demand- 
 ed an abstract of title or called on the 
 vendor to make the title good, had no 
 right to rescind the contract, and, as 
 certain reservations in the agreement 
 under which the defendants held had 
 been released by the Companies inter- 
 
1199 
 
 VENDOR AND PURCHASER. 
 
 1200 
 
 ested before the trial, the Court would 
 not now rescind the contract. 
 
 (4) The reservation not released, viz., 
 that in the agreement from the Canadian 
 Northern Railway Co., reserving any 
 land that might be required for right of 
 way and station grounds of the Grand 
 Trunk Pacific Railway, should not be 
 held fatal to the title, as no evid-nce 
 was given to show that any of the lands 
 bought by the plaintiff were or would 
 be affected by it. 
 
 The plaintiffs' appeal from the non- 
 suit entered at the trial should be dis- 
 missed. 
 
 Per Richards and Pehdub, JJ. A. 
 
 (1) The Court wiU not force a pur- 
 chaser to take an equitable estate except 
 where the vendor has the whole equity 
 in the land and controls the legal estate 
 in such a way that he can readily procure 
 it, and the defendants had not, either 
 at the time the contract was made or at 
 the trial, such a title as the plaintiff 
 was compellable to accept: Craddock v. 
 Piper, (1844) 14 Sim. 310; Esdaile v. 
 Stephenson, (1822) 6 Mad. 366; Madeley 
 V. Booth, (1848) 2 De G. & Sm. 718; 
 Fry on Specific Performance, 4th ed. p. 586, 
 
 (2) The defendants were too late 
 in procuring the release of the reserva- 
 tions after the commencement of the suit, 
 though it might be otherwise in an action 
 for specific performance: Dart," 1005. 
 The reservation in favor of the G. T. P. 
 Ry. Co. was a fatal objection to the title 
 as it had not been, and could not be, 
 removed. 
 
 (3) The position taken by the defend- 
 ants in their statement of defence, setting 
 up the various contracts under which 
 they held, was a repudiation of their 
 contract to furnish a title in fee simple, 
 and an attempt to set up that the plain- 
 tiff had only bought the equitable interest 
 they had in the land, which entitled the 
 purchaser at once to treat th^ contract 
 as rescinded; Wrayton v. Naylor, (1895) 
 24 S. C. R. 295. 
 
 (4) The bringing' of the suit for the 
 return of the money paid, alleging that 
 the vendor had not a good title, was a 
 sufficient repudiation of the contract 
 on the part of the plaintiff, and it was not 
 necessary for him to give notice of re- 
 scission or demand the repayment of 
 the money before commencing suit: Want 
 V. Stallibrass, (1873) L. R. 8 Ex. 175. 
 Neithe^ was it necessary for the plaintiff 
 to demand an abstract of title, as the 
 defendants' agent showed the plaintiff the 
 
 nature of the Company's title before the 
 action. 
 
 (5) Although in Ontario the Court 
 may allow money to be paid into court 
 to secure the purchaser against an out- 
 standing incumbrance, as in Cameron v. 
 Carter, (1885) 9 O.R. 426, that course is 
 permissible under the Act respecting the 
 Law and Transfer of Property, R.S.O. 
 1897, c. 119, s. 15, and ,there is no 
 similar statutory provision in Manitoba. 
 
 (6) So far as the question of pleading 
 was concerned, the statement of claim 
 was quite sufficient, for the plaintiff 
 was entitled to join two grounds of rehef 
 as he had done and to rely upon either 
 or both of them. 
 
 The appeal should be allowed and re- 
 lief given to the plaintiff as claimed. 
 
 The Court being equally divided, the 
 appeal was dismissed without costs. 
 Hartt V. Wishard Langan Co., Ltd., 18 
 M.R. 376. 
 
 V. Rettjen of Monet Paid. 
 
 1. Specific performance^iJescission. 
 Held, that where a contract for the 
 
 purchase of real estate is rescinded, owing 
 to the default' of the purchaser, he can- 
 not recover back his deposit. Robertson 
 • V. Dumhle, 1 M.R. 321. 
 
 2. Vendor unable to make title — 
 
 Pq^yment in shares which afterwards be- 
 come worthless — Right of vendor to return 
 the shares instead of the amount at which 
 they had been valued in the exchange — 
 Estoppel by recovery of judgment. 
 
 The defendants sold 18 parcels of land 
 to the plaintiff, at an average price of 
 $1040 each, and accepted shares in a 
 company of the par value of $6400 in lieu 
 of the first payments to be made under 
 the agreements. Plaintiff paid in cash 
 by way of second instalment $794.56. 
 Defendant recovered judgment against 
 plaintiff for the third instalments due 
 on twelve of the agreements, and plaintiff 
 paid the judgment. He afterwards dis- 
 covered that defendant was unable 
 to make title under thirteen of the agree- 
 ments and brought this action. Shortly 
 after defendant acquired the shares the 
 company failed and the shares became 
 worthless. 
 
 Held, (1) Plaintiff was entitled to re- 
 cover back the cash he had paid on the 
 lands for which defendant could not make 
 title, including the amount paid to satisfy 
 
1201 
 
 VENDOR AND PURCHASER. 
 
 1202 
 
 •the judgment referred to, though not 
 the costs of that action. 
 
 (2) The said judgment was not under 
 the circumstances an estoppel against 
 the plaintiff, as he was ignorant of his 
 rights when he failed to defend the action. 
 
 Jackson v. Scott, (1901) 1 O.L.R. 488, 
 followed. 
 
 (3) (Richards, J.A., dissenting). In 
 respect of his first payments defendant 
 should only be ordered to transfer back 
 the shares he had received from the plain- 
 tiff and was not Hable for the amouni 
 in cash at which he had taken them over. 
 
 Adam v. Newbigging, 13 A.C. at p. 
 323, followed. 
 
 Snider v. Webster, (1911) 20 M.R. 562, 
 distinguished. 
 
 Per Richards, J.A. The defendant 
 should be ordered to pay in cash what 
 the shares were worth at the time he re- 
 ceived them, and there should be a refer- 
 ence to ascertain that value. Johnson v 
 Henry, 21 M.R. 347. 
 
 VI. Spbcipic Pekformance. 
 
 1. Collateral verbal provisions — Cov^ 
 tract — Evidence to vary written contract — 
 Terms intentionally omitted from the 
 writing hid verbally agreed on— Statute 
 of Frauds. 
 
 When two parties enter into a formal 
 written agreement for the sale and pur- 
 chase of land containing all the particu- 
 lars necessary to make it binding under 
 the Statute of Frauds and aU the terms 
 they intended to embody in it, and there 
 is no suggestion of accident, fraud or 
 mistake in the preparation or execution 
 of it, specific performance of it may be 
 decreed notwithstanding that the parties 
 at the same time verbally agreed upon 
 a number of collateral agreements or 
 subsidiary conditions for conveniently 
 carrying out the written agreement > 
 and notwithstanding the Statute of 
 Frauds. 
 
 The following variations of or additions 
 to the written contract made in that way 
 in this case were held not to stand in 
 the way of specific performance being 
 decreed, the plaintiff being willing to 
 carrv out the agreement as thereby modi- 
 fied.' 
 
 1. The vendor was to allow a deduc- 
 tion of $30 per acre from the price men- 
 tioned for any deficiency in the estimated 
 acreage that might be found in actual 
 measurement. , 
 
 2. The purchaser agreed to accept 
 possession at a date two weeks later than 
 the time fixed by the agreement for taking 
 possession. 
 
 3. Taxes, interest on a mortgage and 
 insurance premiums were to be adjusted 
 as of the date of the agreement, which 
 was silent on these points. 
 
 4. It was understood that, although 
 the plaintiff had a certificate of title 
 under The Real Property Act, the de- 
 fendant's solicitor was to examine the 
 title and see if it was all right, whilst 
 the written contract declared that the 
 purchaser accepted the vendor's title 
 and should not be entitled to call for an 
 abstract or evidence of title or any deeds, 
 papers or documents other than those 
 in the possession of the vendor. 
 
 Byers v. McMillan, (1887) 15 S.C.R. 
 194, and Martin v. Pycrofi, (1852) 2 
 De G. M. & G. 785, followed. 
 
 Gfreen v. Stevenson, (1905) 9 O.L.R. 
 671, distinguished. 
 
 Held, afio, per Howell, C.J.A., that 
 evidence should not have been allowed 
 in to prove such variations and additions 
 in the absence of anything in the de- 
 fendant's pleading setting them up. 
 
 Per Perdue, J.A. The evidence should 
 not have been admitted at all. 
 
 Per Phippen, J.A. The evidence of 
 the variations and additions in this case 
 was properly received. Anderson v. 
 Douglas, 18 M.R. 254. 
 
 2. Damages — Date of assessing dam^ 
 ages. 
 
 In an action by a purchaser, for specific 
 performance of a contract respecting lands, 
 intended to be held by him for sale, 
 where damages have been decreed, in- 
 stead of specific performance, on account 
 of the sale by the vendor of the lands 
 to a third party, the date of the breach 
 .of the contract is the period at which 
 the value of the land in question is to 
 be estimated for the purpose of assessing 
 the damages. BouUbee v. Shore, 1 M.R. 
 22. 
 
 3. Deficiency in land — Part taken 
 by railway — Sub-purchasers — Parties. 
 
 On 30th January, 1882, plaintiff agreed 
 to sell lot 33, described as 128 acres, to 
 defendant L. Shortly afterwards, de- 
 fendant L. agreed to sell the same land, 
 described as 111 acres, to another de- 
 fendant, who agreed to sell it to other 
 defendants. There were, in reality, about 
 112| acres in the lot, and of this 1| acres 
 
1203 
 
 VENDOR AND PURCHASER. 
 
 1204 
 
 were owned by a railway company and 
 used for their track. 
 
 The agreements were made during a 
 period of great excitement in real estate. 
 After its abatement neither party took 
 any steps to carry out the agreement, 
 beyond the rendering of an account 
 by the plaintiff to the defendant and a 
 letter ' threatening proceedings in 1885, 
 and beyond an enquiry by the def end9,nt 
 L. as to the state of the title in 1883. 
 
 Held, 1. That, under the circumstances, 
 specific performance ought not to be 
 decreed against L. 
 
 2. That the proper decree against the 
 sub-purchasers (who had not answered) 
 was to direct a reference to the Master 
 to enquire as to title; in the event of 
 his finding a good title, to take an account 
 of. the amount due for purchase money 
 and to fix a day for payment ; on payment, 
 plaintiff to convey; on default, rescission; 
 if title good at time of filing bill, plain- 
 tiffs' costs to be added to purchase money. 
 Nixon V. Logie, 4 M.R. 366. 
 
 4. Estoppel by signing lease — New 
 
 trial — Pleading. 
 
 1. A person is not estopped by entering 
 into a lease of land, which has expired 
 before the commencement of the action, 
 from bringing an action for specific 
 performance of an agreement for the sale 
 of the land to him by the lessor, alleged 
 to have been made before the signing 
 of the lease. 
 
 2. A plea that the plaintiff had never 
 been in possession of the land, except only 
 as tenant to the defendant under a lease 
 in writing made between the parties; 
 does not amount to a plea of estoppel. 
 Poliquin v. St. Boniface, 17 M.R. 693. 
 
 5. Illiterate vendor — Signature of 
 agreement df sale by person not understand- 
 ing English — Enforcement of agreement' 
 with variation — Plaintiff not prepared to 
 carry out agreement exactly. 
 
 1. When a vendor of land who does 
 not understand English is induced by 
 the purchaser, who understands both 
 EngUsh and the language of the vendor, 
 to execute an agreement of sale, in Eng- 
 lish, the purchaser himself being the 
 only interpreter, there is a heavy onus 
 upon the purchaser seeking to enforce 
 the agreement to satisfy the Court that 
 the agreement was freely executed by 
 the vendor after its effect was fully and 
 clearly explained to him — an onus that 
 
 is not satisfied by the evidence of the 
 purchaser alone. 
 
 2. When the evidence shows that the 
 plaintiffs, seeking specific performance 
 of the defendant's agreement to sell, 
 sought to have him carry it out on terms 
 less advantageous to him than those to 
 which he had agreed and, therefore, were 
 not prepared to carry out the agreement 
 on their part, they must fail. 
 
 Quaere, whether the rule as to the 
 enforcement of agreements with a varia- 
 tion should be applied under the cir- 
 cumstances of this case. Weidman v. 
 Pelakise, 2 W.L.R. 308. 
 
 6. Incumbrances — Statute of Frauds. 
 Action for specific performance of an 
 
 agreement in writing by the defendant 
 ' to purchase the property in question 
 for 140,000, " payable as follows : $10,000 
 cash, and six equal notes with interest 
 at seven per cent, for balance to be 
 handed over for such time payments." 
 
 There were incumbrances on the pro- 
 perty aggregating over 18,000, part of 
 which was overdue, but the greater 
 part was to mature at various dates within 
 four years and some of the holders were 
 unwilling to accept prepayment. The 
 agreement did not state for what time 
 the notes were to run, but the parties 
 understood that they were to be for six 
 equal yearly payments, the first in one 
 year and the last in six years, also that . 
 a transfer and bill of sale were to be given 
 at once and a mortgage taken for the 
 deferred payments, although the docu- 
 ment was silent on these points. 
 
 The defence raised the Statute of 
 Frauds because the agreement did not 
 state when the instalments of purchase 
 money should fall due. 
 
 Held, without determining this point, ■ 
 that the purchase was intended to be 
 completed at once and the title was not 
 one which could be forced on an unwilling 
 purchaser because there were incum- 
 brances which the vendor was not in a 
 position to pay off at once. 
 
 In re Weston & Thomas's Contract, 
 [1907] 1 Ch. 244, followed. Brandon 
 Steam Laundry Co. v. Hanna, 19 M.R. 8. 
 
 7. Misrepresentation by purchaser 
 as to a material fact afEecting value 
 of land. 
 
 The plaintiff, knowing of the definite 
 announcement of the location of certain 
 railway shops near the defendant's land, 
 a fact affecting its value of which the 
 
1205 
 
 VENDOR AND PURCHASER. 
 
 1206 
 
 defendant was ignorant, in order to 
 induce the defendant to give him an 
 option to purchase the land, not only 
 concealed that fact, but represented to 
 the defendant that the shops were to be 
 located elsewhere. 
 
 Held, following Walters v. Morgan, 
 8 De G.F. & J., at p. 723, and Turner v. 
 Green, (1895) 2 Ch. 205, that specific 
 performance of the contract should be 
 refused. Irish v. McKemie, 6 W.L.R. 
 209. 
 
 8 Misrepresentations by purchaser 
 inducing sale — Materiality of. 
 
 A decree for specific performance 
 of an agreement of sale will not be refused 
 because of any misrepresentations by 
 the purchaser, imless they are material, 
 that is, relate to some part of the contract 
 or its subject matter. Misrepresenting 
 the seller's chance of sale or the probab- 
 ility of his getting a better price for his 
 property than the buyer offers is not a 
 material misrepresentation. 
 
 Archer v. Stone, (1898) 78 L.T. 34, 
 and Vernon v. Keys, (1810) 12 East, 
 632, 4 Taunt, 48S, foUpwed. 
 
 Applying this principle, statements 
 made by the plaintiff to the defendants, 
 during negotiations for the purchase 
 of the property in question, that there 
 was nothing in a rumor (said to be cur- 
 rent) of a big concern having bought, or 
 being about to buy a large parcel of land 
 on the opposite side of the street, of part 
 of which the plaintiff was one of the own- 
 ers, with the intention of erecting ex- 
 tensive improvements thereon; that he, 
 the plaintiff, had never been approached 
 by any one with a view to purchasing 
 his interest in such property and that 
 part of that property could then be bought 
 at a price per foot frontage very much 
 lower than the defendants were asking 
 for the property in question, were held 
 not to be material to the contract. 
 
 A misrepresentation as to who the real 
 purchaser was might, under some cir- 
 cumstances, be so material to the con- 
 tract as to vitiate it, but in this case the 
 defendants, although they had been told 
 by the plaintiff that he was buying 
 for another named person, could only say 
 that, if they had known that the plaintiff 
 was buying for himself, they would have 
 been suspicious that he was concealing 
 facts which would have made the property 
 more valuable and would not have sold 
 to him at the price actually fixed, and 
 they actually made out and signed the 
 
 contract of sale in the plaintiff's own 
 name. 
 
 Held, that the alleged misrepresenta- 
 tion as to the identity of th? proposed 
 purchaser was not, under the circum- 
 stances, material to the contract. Dart 
 V. Rogers, 21 M.R. 721. 
 
 9. Notice of prior unregistered sale — 
 
 Fratid. 
 
 Under sections 71 and 91 of The Real 
 Property Act, R.S.M. 1902, c. 148, the 
 title of the holder of a certificate of title, 
 as against the claimant under a prior 
 unregistered sale, can only be impeached 
 for fraud, and fraud cannot be found 
 merely because the purchaser had been 
 told of the prior sale by the solicitor of 
 the prior purchaser, when it appeared that 
 he had afterwards been informed by the 
 vendo"- himself that he had not sold 
 the property and by one Watson, a real 
 estate agent, that the property had not 
 been sold but had been placed by the 
 vendor in his hands for sale, also that 
 due search had been made in the Land 
 Titles Office. 
 
 Stark V. Stephenson, (1891) 7 M.R. 381, 
 followed. Shaw v. Bailey, 17 M.R. 97. 
 
 10. Part performance — Delivery of 
 deed in escrow — Statute of Frauds. 
 
 As part of the consideration for the 
 sale of a house and lot to the plaintiff, 
 the defendant verbally agreed to take 
 an assignment of the plaintiff's interest 
 in certain farming lands under an agree- 
 ment of purchase from one Empey pro- 
 vided that one Bishop would take a 
 lease of the lands. 
 
 A deed of the house and lot and an 
 assignment of the agreement of sale were 
 prepared and executed and left with the 
 defendant's solicitors in escrow. 
 
 Held, 1. The plaintiff's failure to secure 
 Bishop as a tenant barred his right to 
 specific performance, as did also the fact 
 that the plaintiff had, pending the action, 
 lost his interest in the farm lands through 
 cancellation by Empey of the agreement. 
 
 2. The receipt by the plaintiff of a 
 payment of rent from the tenant of the 
 house, without the consent or acquies- 
 cence of the defendant, was not such a 
 part performance of the contract as would 
 take the case out of the Statute of Frauds. 
 
 Semble, the documents left in escrow 
 could not be used as evidence of the verbal 
 agreement sufficient to take it out of the 
 statute: McLaughlin v. Mayhew, (1903) 
 
1207 
 
 VENDOR AND PURCHASER. 
 
 1208 
 
 6 O.L.R., per Oshr, J.A., at p. 177 
 Vanderwoort v. Hall, 18 M.R. 682. 
 
 11. Fleadihg — Refund of money paid 
 on purchase of land — Prayer for further 
 and other relief. 
 
 The plaintiff's statement of claim set 
 forth a case for specific performance 
 of an agreement of sale of land to the 
 plaintiff's assignor and the payment of 
 two instalments of the purchase money. 
 The relief claimed was specific perform- 
 ance of the contract and "such further and 
 other relief as the nature of the case might 
 require." No amendment of the plead- 
 ings was asked for or made. 
 
 Held, that, on the failure of the case 
 for specific performance, the trial Judge 
 could not, under the prayer for general 
 relief, properly make an order for pay-t 
 ment by the defendant of the money 
 he had received on account of his sale, 
 and thait the action should be dismissed 
 with costs, without prejudice, however, 
 to the right of the plaintiff to claim such 
 payment in another action. 
 
 Cargill v. Bower, (1879) 10 Ch., D. 502, 
 followed. 
 
 Lahelle v. O'Connor, (1908) 15 O.L.R. 
 519, distinguished; Hamilton v. Mac- 
 donell, 19 M.R. 385. 
 
 12. Purchaser for value without 
 notice — Contract — Cancellation — Ser- 
 vice of notice of cancellation — Costs — Fur- 
 ther relief — Amendment. 
 
 The plaintiff made an agreement in 
 writing for the purchase of the land in 
 question from the defendant Hough, paid 
 $200 on account, went into possession 
 and erected, a good house on the lot. 
 The title to it was under The Real Pro- 
 perty Act. The plaintiff did not register 
 his agreement. 
 
 Some time afterwards, the defendant 
 Robinson procured an assignment from 
 Hough to himself of the agreement, 
 and also a transfer of the title to the lot. 
 The trial Judge found that these transfers 
 were obtained by fraudulent promises 
 on the part of Robinson or his solicitor 
 to protect the plaintiff's interests. Rob- 
 inson afterwards transferred the lot for 
 value to the defendant Parker, who. was 
 not proved to have any notice or know- 
 ledge of the plaintiff's rights or that he 
 was in possession of the property. 
 
 Held, that the plaintiff could not have 
 specific performance of the agreement as 
 against Parker, but should be allowed 
 
 to remove the house from the lot if. he 
 desired. 
 
 In his statement of claim, the plain- 
 tiff had asked only for specific performance 
 of the agreement, but, under the power 
 conferred on the Court by sub-section 
 (&) of Sfection 38 of The King's Bench 
 Act, and rules 344 and 346 as to 
 amendment of the pleadings if found 
 necessary, the Court, having foimd the 
 defendant Robinson guilty of fraud, 
 granted ;the plaintiff further reUef against 
 him by ordering him to pay the 
 plaintiff, by way of damages, what he 
 had paid to Hough on the lot with in- 
 terest. 
 
 Action dismissed as against the defend- 
 ants Hough and Parker. 
 
 Held, as to costs, that the defendant 
 Robinson should be ordered to pay not 
 only the plaintiff's costs, but -also those 
 of his co-defendants directly to them : 
 Daniel's Ch. Pr., 7th ed., p. 980. 
 
 Rudop V. Great Britain Mutual Life 
 Assurance Society, (1881) 17 Ch. D. 600, 
 followed. 
 
 There were two clauses in the agree- 
 ment providing for cancellation in case 
 of default ; the first saying that, after 
 such default, the vendor might cancel 
 with or without notice, the second pro- 
 viding for the manner of giving the notice 
 of default. 
 
 Held, that the vendor might elect to 
 adopt one or other of such modes of can- 
 cellation; that, if he elected to cancel 
 without giving notice, he could not do 
 so by a mere operation of his mind, but 
 must do_ something by which he gives 
 the purcfisiser dearly to understand that 
 he decides to avoid the contract, and that 
 the relation of vendor and purchaser 
 no longer exists between them, or do some 
 act directly affecting the vendee in his 
 position or interest, as, for Example, a 
 sale to another : McCord v. Harper, 
 (1876) 26 U.C.C.P. 104 ; and on the 
 other hand, if he adopts the mode of 
 cancellation by notice, he must conform 
 strictly to the mode prescribed. Czuack 
 V. Parker, 15 M.R. 456. 
 
 13. Action by sub -purchaser against 
 original vendor — Privity of contract. 
 
 A purchaser of land from A., whose 
 only title to the land is under an agree- 
 ment of purchase from B. the owner, 
 may, after default of A. in carrying out 
 his contract with B., on notifying B. of 
 his interest and tendering the fuU amount 
 owing to him by A., 3 it be refused, 
 
1209 
 
 VENDOR AND PURCHASER. 
 
 1210 
 
 maintain an action against both A. and 
 B. for specific performance and for an 
 order that B. convey to him on payment 
 of the amount due under his agreement 
 with A. 
 
 Smith V. Hughes, (1903) 5 O.L.R. 
 245 ; Dyer v. Pulteney, (1740) Bam. 
 (Ch.) 160, and Fenvnck v. Bulman, (1869) 
 L.R. 9Eq. 165, foUowed. 
 
 Dictum of Perdue, J. A., in Hartt v. 
 "Wishard Langan Co., (1908) 18 M.R. 
 at p. 387, not followed. Sveinsson v. 
 Jenkins, 21 M.R. 746. 
 
 14. Statute of Frauds- 
 
 The land which the defendant agreed 
 to purchase from the plaintiff for the sum 
 of $5000 was subject to mortgages and 
 registered judgments for amounts ex- 
 ceeding in the aggregate the sale price, 
 and the plaintiff had no means of paying 
 them off except out of the purchase 
 money and he undertook to negotiate 
 with the judgmept creditors to get re- 
 leases for less than the sums due to them 
 respectively, but he had not, up to the 
 commencement of the action, been able 
 to get his arrangements for these releases 
 definitely concluded. By the agreement 
 the defendant was to pay the purchase 
 money " as soon as a loan can be ar- 
 ranged and title found satisfactory." 
 The agreement was silent as to when the 
 purchaser was to have possession of the 
 property and the plaintiff remained in 
 possession during the negotiations for 
 completion, which lasted about nine 
 months. 
 
 Held, that specific performance of 
 the agreement should be refused on the 
 following grounds : 
 
 (1) The plaintiff had failed to show 
 a clear title or his abihty to give such a 
 title. 
 
 (2) Such failure caused such delay in 
 the defendant getting possession that 
 it would be a great hardship on him to 
 enforce the contract, as specific perform- 
 ance is purely a discretionary remedy 
 available according to the equities of 
 each case : Fry on Specific Performance, 
 183, ei seq. 
 
 (3) The provision in the agreement 
 that the purchase money was to be paid 
 " as soon as a loan can be arranged " 
 was so indefinite, obscure and uncertain 
 as to render the contract incapable of 
 being the subject of an action for specific 
 performance : Am. & Eng. Ency., vol. 
 xxvi., 137. Major v. Shepherd, 18 
 M.R. 504. 
 
 16. Stipulation that time is to be of 
 the essence of the contract — Posses- 
 sion as excuse for delaying suit — Dam- 
 ages in lieu of specific performance— Laches. 
 
 1. The variation of an agreement 
 for the sale of a lot of land, by a subse- 
 quent conveyance of a part of the lot 
 to the piu:chaser in fee smiple, will not 
 of itseK operate as a rescission of the agree- 
 ment as to the remainder. 
 
 2. A stipulation in an agreement of 
 sale of land that time shall be considered 
 to be of the fessenoe of the contract will 
 be treated, in circumstances such as are 
 set out in the judgments, and when 
 everything goes to show that it was not 
 the real intention of the vendor to insist on 
 its being strictly carried out, as only 
 in the nature of a penalty which a Court 
 of Equity should reHeve against. 
 
 In re Dagenham Dock Co., (1873) 
 L.R. 8 Ch. 1022; Lowther v. Heaver, 
 (1889) 41 Ch. D. 248, and Hipwell v. , 
 Knight, (1835) 1 Y. & C. 401, foUowed. 
 
 3. A purchaser of land under an agree- 
 ment of sale who takes and retains pos- 
 session will not be barred from taking 
 proceedings for specific performance, 
 although he delays them for more than 
 six years. 
 
 4. When specific performance for any 
 reason cannot be granted, a plaintiff 
 may now be awarded damages in lieu 
 thereof as at Common Law, and no 
 delay in seeking his remedy, short of 
 that imposed by the Statute of Limita- 
 tions, would afford a sufficient defence. 
 Barlow v. Williams, 16 M.R. 164. 
 
 16. Title, transfer of — Contract — Sale 
 of land — Parties to action — Costs. 
 
 Defendant held two half sections 
 of land from the C. P. R. Co. under 
 interim receipts signed on behalf of the 
 Company, acknowledging payment of 
 $160 on each, stating the price and ex- 
 pressed to be given "subject to the con- 
 ditions of the Company, and pending 
 completion of agreement for the pur- 
 chase of said land." Plaintiff after- 
 wards agreed to buy defendant's interest 
 in the land for $1440 and to assume the 
 debt still due to the Company. He paid 
 $720 cash and was to pay the other $720 
 in thirty days on receiving assignments 
 from the defendant of the agreements 
 of sale to- be given by the Company. 
 When the thirty days expired, defendant 
 had not yet procured the agreements 
 from the Company, but offered to assign 
 
1211 
 
 VENDOR AND PURCHASER.. 
 
 1212 
 
 them to the plaintiff and hand over in- 
 terim receipts on payment of the money. 
 ' Held, that plaintiff was not bound 
 to accept such offer, but was entitled to 
 withhold the money until defendant should 
 procure the agreements from the Company 
 and hand them over with assignments. 
 After the receipt of the Company agree- 
 ments defendant refused to carry out 
 the sale to the plaintiff and entered into 
 an agreement to sell one of the parcels 
 to a Mr. Work who was aware of the plain- 
 tiff's claim. 
 
 Held, that plaintiff was entitled to 
 specific performance by defendant of 
 the contract of sale between them, and 
 that defendant could not rely on his ob- 
 jection that Work had not been made a 
 party to the action because he had not 
 raised such question by his pleadings. 
 One fourth part of the counsel fees that 
 would ordinarily have been allowed for 
 the trial was ordered to be struck off 
 because plaintiff's counsel had unneces- 
 sarily prolonged the trial by neglecting 
 to go through the documents relating 
 to the' case before the trial and select 
 those they wished to use. Brown v. 
 Hoare, 16 M.R. 314. 
 
 17. Contract for sale of land and 
 chattels — Misrepresentation by purchaser 
 — Failure of proof — Immateriality — Assign- 
 ment of contract to business rival of vendor 
 — Alteration of agreement — Memorandum 
 made before execution — Signature. 
 
 The plaintiff and defendant were 
 rival ice-dealers in a city. W., who was 
 agent for the plaintiff,, made an agree- 
 ment with the defendant for the sale ' 
 by the defendant to W of the defendant 
 ice-dealer's plant, consisting of land, 
 buildings, a stock of ice, and certain 
 chattels used in the business. The 
 agreement was reduced to writing and 
 executed by W. apd the defendant. W. 
 assigned all his interest under the agree- 
 ment to the plaintiffs, who sued for specific 
 performance. The defendant alleged that 
 W. represented to him that he was act- 
 ing on behalf of a company which was be- 
 ing formed for the purjjose of taking over 
 all the ice businesses in the city where 
 the plaintiff and defendant carried on 
 business, and, when asked by the defend- 
 ant if he was acting for the plaintiff, 
 replied that he was acting on behalf of 
 a new joint stock company: 
 
 Held, upon the evidence, that it was 
 not established that the alleged represent- 
 ation was made; but, even if it were, it 
 
 would not be material; the defendant 
 agreed to sell to W. without imposing 
 any restrictions on his right to assign 
 the benefit of the agreement to any per- 
 son he chose; and the defendant would 
 have been in no way injured by an as- 
 signment to the plaintiff, even if' the re- 
 presentation had been made. 
 
 Nicholson v. Peterson, 18 M. R. 106, 
 followed. 
 
 Held, upon the evidence, that the" 
 organization of a company to which both 
 plants would be conveyed was the project 
 which both W. and the plaintiff had in 
 view when the negotiations were being 
 conducted, and that it had to be abandon- 
 ed because of the defendant's refusal to 
 complete the sale. 
 
 The defendant also alleged that the 
 agreement was materially altered by a 
 memorandum written ' by the defendant 
 in a private fcook of his, and alleged to 
 have been signed by the defendant, 
 just before the execution of the agreement. 
 
 Held, upon the evidence, that the sig- 
 natiire to the memorandum was not that 
 of W.; and the principal document cor- 
 rectly expressed the agreement of the par- 
 ties. 
 
 Held, also, that, where there is an 
 entire agreement by which a party agrees 
 to sell real estate and certain chattels 
 to be enjoyed with it, the Court will com- 
 pel specific performance, where the enjoy- 
 ment of the chattels is requisite to the 
 enjoyment of the real estate. 
 
 Specific performance and other relief 
 decreed. Lane v. Rice, 18 W.L.R. 557. 
 
 VII. Miscellaneous Cases. 
 
 1. Assignee of purchaser — LiaUlity 
 for costs — Registration of cloud On title. 
 
 The plaintiffs agreed to sell real estate 
 to defendant R. who registered his con- 
 tract. Afterwards R. executed a mort- 
 gage upon the land to the defendants 
 the O. Bank. The bill was for payment 
 and in default rescission. Prior to the 
 suit the Bank offered to execute a release 
 of their mortgage upon it being tendered 
 by the plaintiffs. 
 
 Held, that the Bank should pay the 
 costs of the suit, the plaintiffs being 
 under no obligation to tender a release 
 for execution. Hudson's Bay Co. v. 
 Ruttan, 1 M.R. 330. 
 
 2. Constructive notice — Provision 
 that purchaser shall accept vendor's title — 
 Land subject to lease — Cancellation of 
 
1213 
 
 VENDOR AND PURCHASER. 
 
 1214 
 
 agreement to purchase — Damages recover- 
 able by purchaser. 
 
 A clause of the agreement under which 
 the plaintiff purchased the land in ques- 
 tion provided that the purchaser should 
 accept the vendor's title and the land 
 was in fact under lease to a third party 
 which could not be determined in the 
 -fall of 1906. The defendant's agent, 
 however, in the receipts given for the 
 first payment, inserted the words "pos- 
 session according to the existing lease 
 in the fall of 1906." 
 
 Held, that this latter statement ab- 
 solved the plaintiff from further inquiry 
 as to the actual terms of the lease under 
 the authority of Cox v. Coventon, 31 
 Beav. 378, and constructive notice of 
 those terms should not be imputed to 
 him. 
 
 The plaintiff bought a number of 
 horses for the purpose of working the 
 farm, which he subsequently had to sell 
 at a loss, as he could not get possession 
 at the time stipulated for. He also 
 bought a quantity of implements for the 
 same purpose. It did not appear, how- 
 ever, that the defendant knew that these 
 preparations were being made, or of the 
 necessity for them, or that such purchases 
 were contemplated by the parties at 
 the time of the contract. 
 
 Held, following Godwin v. Francis, 
 L.R. 5 C.P. 295, that the purchaser, on 
 getting the agreement cancelled, could 
 not recover damages for loss caused by 
 such purchases. Cairns v. Dunkin, 6 
 W.L.R. 256. 
 
 3. Conveyance, preparation of — 
 
 Duty of vendor to prepare and execute con- 
 veyance at his own expense. 
 
 In this Province, on a sale of land, 
 unless it is otherwise provided in the 
 agreement, it is the duty of the vendor 
 to prepare and execute the conveyance 
 at his own expense, and a purchaser may 
 maintain his action for breach of the 
 contract without tendering a conveyance 
 to the vendor for execution. 
 
 Sweeney v. Godard, 4 Allen (N.E.') 
 300. followed. Dysart v. Drummond, 7 
 M.R. 68. 
 
 4. Damages for breach of covenant 
 to convey'land — Vendor's lien. 
 
 Where a vendor of land has received 
 the amount of the purchase price agreed 
 on and covenanted to convey with a 
 clear title within a time limited, the pur- 
 
 chaser may^ in case of failiire to make 
 title recover the purchase price paid. 
 
 Dart on Vendors and Purchasers, 801, 
 and Mayne on Damages, 250, 251, followed. 
 
 That the consideration mentioned in 
 the deed and acknowledged by the de- 
 fendant to have been received was not 
 actually cash, but only lands received 
 in exchange at a valuation agreed on, 
 makes no difference if such lands have 
 actually been conveyed by the plaintiff 
 to the defendant, and the plaintiff is 
 in such a case entitled to a lien on the 
 lands so conveyed for the amount at 
 which they were taken in the proposed 
 exchange. Snider v. Webster, 20 M.R. 
 562. 
 
 Affirmed; 45 S.C.R. 296. 
 
 5. Option to purchase — Time made 
 of essence of contract — Addition of clause 
 giving vendor power to cancel if payment 
 not made within time fixed. 
 
 An offer, though made for valuable 
 consideration, to sell and convey land 
 on payment of -15500 to be made on or 
 before a. fixed date only gives an option 
 to purchase which cannot be exercised 
 as of right after the time Hmited, and 
 the addition of a clause providing thai, 
 if the payment is not then made, the 
 vendor shaE be at liberty ■ to cancel 
 the agreement confers no additional 
 right upon the proposed purchaser, so 
 that the vendor may refuse a tender 
 of the money subsequently made, al- 
 though he has given no notice and. has 
 done no positive act of cancellation. 
 Dibbins v. Dibbins, [1896] 2 Ch. 348 ; 
 Weston V. Collins, [1865] 11 Jur. N.S. 
 190 ; Waterman v. Banks, (1891) 144 
 U.S.R. 394, and Dickinson v. Dodds, 
 (1876) 2 Ch. D., 463, followed. 
 
 Richards, J. A., dissented, holding 
 that the added clause meant that the 
 option was to remain open to acceptance 
 for a certain term, and thereafter until 
 cancelled in some way by the proposed 
 vendor. Paterson v. Houghton, 19 M.R. 
 168. 
 
 6. Redemption — Relief against accel- 
 eration clause in agreement of sale of land — 
 Verbal agreement varying written contract. 
 
 By agreement dated June 7, 1906, 
 the plaintiff sold to the defendant 625 
 acres of land for $17,500, $1,000 being 
 payable on the execution of the agree- 
 ment and the balance in yearly instal- 
 
1215 
 
 VENDOR AND PURCHASER. 
 
 1216 
 
 ments with interest. It was provided 
 that on default in payment of any instal- 
 ment the whole of the purchase money 
 and interest should at once become due 
 and payable. Owmg to some difficulty 
 over the title to the property the agree- 
 ment was not completed until November 
 8, 1907, when each party got a dupUcate 
 signed by the other and the defendant 
 paid $957.60 of the $1,000 payable on the 
 execution of the agreement. On that date 
 there was also past due the second in- 
 stalment of the pui-chase money and some 
 taxes which the defendant had covenanted 
 to pay. It was admitted that, prior to 
 the completion of the agreement by 
 delivery, a verbal agreement was arrived 
 at extending the time for payment of the ' 
 second instalment, but the parties differed 
 as to the terms of this verbal agreement 
 and, as it would contradict the writing, 
 the trial Judge held that it should not be 
 given , effect to and that the plaintiff 
 was not bound by it. The plaintiff 
 demanded payment of the full amoimt 
 of the purchase money, claiming that it 
 was due by virtue of the acceleration 
 clause above quoted. The defendant 
 asked that, upon payment 'of all- arrears, 
 he might be relieved from the effect of 
 the acceleration clause. 
 
 Held, 1. Such a provision in a contract 
 i s not in tlje natiure of a penalty against ■ 
 which equity wiU relieve. 
 
 WalUngford v. Mviual Society, (1880), 
 5 A.C. 705, foUowed. 
 
 2. The plaintiff, by completing the 
 agreement, -waived his right to call in 
 the fuU balance of the purchase price, 
 because at that date the agreement 
 was, so far as the past due payments 
 were concerned, impossible of perform- 
 ance. 
 
 3. For that reason, and also because 
 the plaintiff had made default in carrying 
 out a term of the agreement by which he 
 was to place a mortgage of $10,000 on 
 the property for a five years' term, 
 the defendant was entitled to the relief 
 prayed for. Vosper v. Avhert, 18 M.R. 
 17. 
 
 7. Right to recover money paid 
 under cancelled agreement — Rescission 
 of contract — Cancellation under provisions 
 of agreement. 
 
 After making some payments to the 
 defendant oii account of the purchase 
 of land under an agreement, the plaintiff 
 discovered that he had made a bad bar- 
 
 gain and repudiated and abandoned 
 the contract, ywhich the defendant then 
 cancelled under the provisions thereof. 
 Held, that the plaintiff, having failed 
 in his claim for damages in deceit founded 
 on alleged misrepresentations of the 
 defendant in making the sale, could not 
 recover as an alternative the moneys 
 he had paid on account of the purchase. 
 Kerfoot v. Yeo, 20 M.R. 129. 
 
 8. Sale under order of Court — Pos- 
 session — Effect of taking — Ex parte order. 
 
 This was an application, under Rules 
 685 and 691 of The Queen's Bench Act, 
 1895, for an order to issue execution 
 against David Milne, who had, in Sept- 
 ember, 1896, made a written offer for the 
 purchase of the property in question 
 in this action at $2,700 cash — after an 
 abortive sale . by auction. The offer 
 contained a stipulation for a clear deed. 
 Milne went into possession pending the 
 completion of the title and made some 
 alterations in the buUdings. Great delays 
 occmrred in completing the title, and the 
 purchaser, after having several times re- 
 quested the vendor to make the title good, 
 finally, on the 30th August, 1897, notified 
 the vendor's solicitors that, unless title 
 was made to him within two weeks 
 from that date, the o.^er should be con- 
 sidered as withdrawn, and that he would 
 have nothing more to do in the matter. 
 Two weeks afterwards the purchaser 
 apcordingly gave up possession of the pro- 
 perty and returned the key. The vendor's 
 soMcitors, however, procured a report 
 from the Master, dated 18th September, 
 1897, approving of the sale to Milne, 
 and on 29th September, an order ex 
 parte from the Chief Justice dispensing 
 with payment into' court of the pm-chase 
 money, and that the payment be made to 
 the Imperial Loan and Investment Com- 
 pany, moftgagees, within ten days after 
 service of a copy of the order, and upon 
 the purchaser receiving a conveyance 
 of the property. No conveyance had 
 been tendered to the purchaser before 
 this application; but it appeared that, 
 on being served with a copy of the order, 
 he stated that he had withdrawn his 
 offer and given up possession of the pro- 
 perty, and would have nothing more to 
 do with the matter. • 
 
 Held, that, while the order of the Chief 
 Justice remained in force, it must be 
 obeyed, although, if aU the circumstance."? 
 had been made known to him, he might 
 
1217 
 
 VENDOR AND PURCHASER. 
 
 1218 
 
 have refused it; aad that the purchaser 
 must pay the purchase money mto court 
 within two weeks, and, in default, that 
 the order for execution should go. 
 
 Held, also, that the purchaser had not 
 lost his right to call for a good title by 
 going into possession, and that there 
 should be a reference to the Master as 
 to the title. 
 
 No costs of the application were allowed. 
 Currie v. Rapid City Farmers' Elevator Co., 
 12 M.R. 105. 
 
 9. Statute of Frauds — Memorandum 
 of agreement — Signature of party charged 
 or his agent — Tender of conveyance. 
 
 1. An agent to purchase or sell land 
 need not be authorized in writing in order 
 to bind his principal. It is sufficient, 
 under the Statute of Frauds, if the agent, 
 though authorized only by parol, has 
 signed an agreement in writing so as to 
 satisfy the statute. 
 
 2. The writii^ of the purchaser's 
 name near the beginning of a written 
 agreement of sale, prepared by a solicitor 
 under the instructions of the purchaser's 
 duly authorized agent, may be a sufficient 
 signature by the defendant's agent within 
 the meaning of the statute, although 
 the agreement is signed by the vendor 
 only. 
 
 McMillan v. Bentley, (1869) 16 Gr. 
 387; Evans v. Hoare, (1892) 1 Q. B. 593, 
 and Schneider v. Norris, (1814) 2 M. & S. 
 286, followed. 
 
 3. When the purchaser has formally 
 refused to carry out the purchase, it 
 is not necessary for the vendor to tender a 
 conveyance of the land before commenc- 
 ing an action to recover the purchase 
 money. 
 
 Illustration of correspondence and docu- 
 ments together constituting a memoran- 
 dum in writing sufficient to satisfy the 
 Statute of Frauds in a case of a sale of 
 land. Mcllvride v. Mills, 16'M.R, 276. 
 
 10. Time, whether of the essence 
 of the contract — Agreement to purchase 
 on fixed date nt option of vendor. 
 
 In consideration of the plaintiff pur- 
 chasing an interest in certain lands and 
 paying $500 on account, the defendant 
 signed an agreement that he would pur- 
 chase the plaintiff's interest for the sum 
 of S600, if the latter desired to dispose 
 of it on the first day of December, 1907. 
 That day was on a Sunday and the plain- 
 tiff was away from home until the 4th 
 
 day of December, when he at once -notified 
 the defendant that he wanted the agree- 
 ment carried out. The defendant did 
 not then repudiate the agreement, but 
 asked the plaintiff to call again, saying 
 that he had not the money just then. 
 He afterwards refused to carry out the 
 agreement and claimed that the plaintiff 
 was bound to come on the very day 
 fixed by the contract. 
 
 Held, that the circumstances showed 
 that it was never intended that time was 
 to be of the essence of the contract, that 
 the plaintiff had made his demand within 
 a reasonable time, and that he was en- 
 titled to a verdict for the S600 and costs. 
 Hill V. Rowe, 19 M.R. 702. 
 
 11. Vendors unable to make title — 
 
 Bona fides — Pleading — Amendmerd^-Dam- 
 ages. 
 
 Where a vendor of land has sold in 
 good faith, but cannot make title, he is 
 Eable only for a return of the money paid 
 to him on the purchase and for the pur- 
 chaser's costs of investigating the title. 
 
 Flureau v. Thomhill, 2 W. Bl. 1078, 
 and Bain v. Fothergill, L.R. 7 H. L. 158,. 
 followed. 
 
 Such defence should, however, be plead- 
 ed to a claim for damages for the breach 
 of contract to sell, though, in a proper 
 case, the defendant may, at the trial, 
 be allowed to introduce it by way of 
 amendment to his pleading. Moody v. 
 McDonald, 4 W.L.R. 303. 
 
 12. Warranty of title — Sale and as- 
 signment of the right and interest of a pur- 
 chase under an agreement of sale from the 
 owner — Damages. 
 
 The plaintiff sold and conveyed a pro- 
 perty to the defendant and accepted 
 from the latter, as payment of $450 of 
 the purchase money, an assignment of 
 all the right and interest of the defendant 
 in certain lots which he held under an 
 agreement of sale to him from A. A.'s 
 title to the lots was only under another 
 agreement of sale from the owner who, 
 in fact, had cancelled the sule to A. before 
 the defendant assigned to this plaintiff, 
 but the defendant was not aware of this. 
 
 Held, that the defendant had impliedly 
 represented that he had an equity or 
 inteniBt in the said lots, whereas in fact 
 he hid none at the time of the assign- 
 ment, though he honestly beUeved he 
 had, and that he was liable to the plain- 
 
1219 
 
 VENDOR'S LIEN. 
 
 1220 
 
 tiff in damages for the $450, Graham v. 
 Bremen, 9 W.L.R. 641. 
 
 See Agreement tor Sale op Land, 2. 
 
 — Church Lands Act, 1. 
 
 — Contract, XV, 1, 6. 
 
 — Covenant, 2. 
 
 — Eqititablb Assignment, 2, 
 
 — Jurisdiction, 4. 
 
 — Mechanic's Lien, IV, 2. 
 
 — • Misrepresentation, III, 3; V, 1. 
 
 — Ownership of Crops. 
 
 — • Principal and Agent, I, 5. 
 
 — Registered Judgment, 5. 
 
 — Statute op Frauds. 
 
 VENDOR'S LIEN. 
 
 /See Fraudulent Conveyance, 20. 
 
 — Indians, 1. 
 
 — Mechanic's Lien, IV, 1; VI, 2. 
 
 — Vendor and Purchaser, III, 2; 
 
 VII, 4. 
 
 VENUE. 
 
 (See County Court, II, 2, 
 
 VENUE, CHANGE OF 
 See Security for Costs, VII, 2. 
 
 VERBAL AGREEMENT. 
 
 See Statute of Frauds, 4. 
 
 VERBAL AGREEMENT TO VARY 
 WRITTEN CONTRACT. 
 
 See Vendor and Purchaser, VII, 6. 
 
 Poole V. WhUcomb, (1862) 12 C.B. 
 N.S. 770, and KeUy v. Sherlock, (1866) 
 L.R. 1 Q.B. 691, followed. 
 
 Costs are now entirely in the discretion 
 of the trial Judge, no matter what is 
 the amount of the verdict for the plain- 
 tiff. 
 
 Shillinglaw v. Whillier, (1909) 19 M.R. 
 149, followed. DoAda v. Wright, 21 M.R, 
 716. 
 
 2. Motion , to set aside — Questions of 
 fact. 
 
 Held, the Court will not interfere with 
 the finding of a jury, and reverse it, 
 unless the verdict is perverse, or clearly 
 and evidently against the weight of 
 evidence, or when the jury has been mis- 
 directed by the Judge. Maddill v. Kelly, 
 1 M.R. 280. 
 
 3. Special jury — Verdict ■ of nine or 
 more. 
 
 Held, that section 29 of chapter 31, 
 Con. Stat. Man., applied both to special 
 and common juries, and that the verdict 
 of nine or more jurors is, in either case, 
 sufficient. Robertson v. McMeans, 1 M.R. 
 348. 
 
 iSee Banks and Banking, 6. 
 
 — Damages, 2, 3. 
 
 — Lord Campbell's Act, 3. 
 
 — Malicious Prosecution, 2. 
 
 VERDICT OP JURY. 
 
 1. Costs — New trial, 
 
 The jury at the trial of an action has 
 nothing to do with costs and, if they bring 
 in a verdict clearly stated to be for 
 damages and costs, which is accepted 
 and acted upon by the Judge, the judg- 
 ment should be set aside and a new trial 
 ordered. 
 
 VETERINARY SURGEON, 
 
 See Conviction, 5. 
 
 VOID CONTRACT. 
 
 See Weights and Measures Act, 2. 
 
 VOID OR VOIDABLE ACTS. 
 
 See Infant, 1. 
 
 VOID PROCEEDINGS. 
 
 See Practice, XX, A, 2. 
 
 — Replevin, 4. 
 
 — Sale op Land fob Taxes, III, 
 
 VI, 4; IX, 2, 3. 
 
 — Setting Aside Proceedings. 
 
 2,3; 
 
1221 
 
 VOLUNTARY CO>fVEYANCE. 
 
 1222 
 
 VOLUNTARY CONVEYANCE. 
 I 
 
 Husband and wife — Fraudulent 
 conveyance — ResvUing trust. 
 
 The plaintiff caused the land in question 
 to be conveyed to his wife, the defendant, 
 and registered the deed without her 
 knowledge. His motive was to avoid 
 payment of an anticipated claim against 
 him. 
 
 Held, that he could not succeed in an 
 action to compel her to re-convey the 
 land to him. 
 
 Curtis V. Price, (1806) 12 Ves. 103, and 
 Roberta v. Roberts, (1819) 2 B. & Aid. 
 367, followed. 
 
 Childera v. ChUders, (1819) 1 De G. 
 
 6 J. 481, andiHaigh v. Kaye, (1872) L.R. 
 
 7 Ch. 469, distinguished. McAuley v. 
 McAuley, 18 M.R. 544. 
 
 See Pkatjdulbnt Convetancb, 15. 
 
 VOLUNTARY PAYMENT. 
 
 See Administration, 7. 
 
 — Chose in Action, 1. 
 
 — Weights and Measures Act, 1. 
 
 VOLUNTARY SETTLEMENT. 
 
 See Fraudulent Conveyance, 22. 
 
 VOTERS' LIST. 
 
 See Criminal Law, XVII, 12. 
 — Prohibition, III, 3. 
 
 WAGES. 
 
 1. Act respecting Assignments of 
 Wages or Salaries to be earned in the 
 Future, 9 Edw. VII, c. 2 — Earnings of 
 man employed to work with his own team 
 at a rate per day, whether wages or not — ■ 
 Meaning of word. 
 
 Wages are the personal earnings of 
 laborers and artisans, and it is an essen- 
 tial ingredient in wages that the personal 
 services of the laborer or artisan must 
 not only be rendered but must have been 
 
 contemplated as such in. the contract. 
 Where, therefore, the defendant, owning 
 two teams of horses, was employed to 
 haul gravel at a rate per team per day 
 and hired another man to drive one of 
 the teams for him, the earnings of the 
 defendant for the work were held not 
 to be wages, within the meaning of the 
 Act respecting Assignments of Wages 
 or Salaries to be earned in the Future, 
 9 Edw. VII, c. 2, and an assignment 
 by the defendant to the claimant of such 
 earnings, although part had not yet been 
 earned, did not come within the said Act 
 and was held to be valid as against a 
 garnishing order subsequently served by 
 the plaintiff. 
 
 Ingram v. Barnes, (1854) 26 L.J.Q.B. 
 319, followed. Coupez v. Lear. Hubbard, 
 Claimant ; Winnipeg Electric Ry. Co., 
 Garnishees. 20 M.R. 238. 
 
 2. Builders' and Workmen's Act, 
 R.S.M. 1902, c. 14, ss. 2, 3, i:— Priority 
 of wages over garnishing and other orders. 
 
 Section 4 of The Builders' and Work- 
 men's Act, R.S.M. 1902, c. 14, making 
 a proprietor directly liable for payment 
 of the wages of workmen employed by 
 a contractor doing any work for him, 
 effects what may be termed a statutory 
 assignment to the workmen, to the amount 
 of their unpaid wages, of the moneys 
 payable by the proprietor to the contract- 
 or, BO that the workmen are entitled to 
 priority over the claims of creditors 
 holding garnishing or other orders against 
 the proprietor in respect of such moneys, 
 and such creditors are entitled to be paid 
 out of any balance in the order in which 
 notices of their several claims were given 
 to the proprietor. 
 
 In such case it makes no difference 
 that the proprietor has made a payment 
 to the contractor which diminishes the 
 amount available for such other creditors. 
 Bryson v. Municipality of Rosser, 18 
 M.R. 658. 
 
 iSee Company, IV, 8. 
 
 — Contract, XV, 2. 
 
 — Master and Servant, III. 
 
 — Municipality, VII, 9. 
 
 — Winding-up, IV, 3. 
 
 WAGES, PRIORITY OP 
 
 See Builders' and Workman's Act. 
 
1223 
 
 WAIVER. 
 
 122i4 
 
 WAIVER. 
 
 See Accident Insueance, 2. 
 
 — Abbitration AND Award, 9. 
 
 — Bills and Notes, II; VIII, 13; X, 4. 
 
 — Building Conteact, 6. 
 
 — Ceetiokari, 3. 
 
 — Company, IV, 10, 14. 
 
 — Constitutional Law, 14. 
 
 — Contract, XIV, 1, 2. 
 
 — County Court, I, 13. 
 
 — Duress, 1. 
 
 — Evidence on Commission, 1, 9. 
 
 — Expropriation of Land, 3. 
 
 — Fire Insurance,. 6. 
 
 — Foreign Judgment, 11. 
 
 — Garnishment, IV, 1. 
 
 — Landlord and Tenant, V, 2. 
 
 — Liquor License Act, 8. 
 
 — Mechanic's Lien, IX. 
 
 — Misrepresentation, IV, 2. 
 
 — Practice, II, 1; III, 4; V, 1; VII, 2; 
 
 XXII, 1; XXIII, 2; XXVIII, 27. 
 
 — Principal and Surety, 3. 
 
 — Prohibition, I, 3, 5. 
 
 — Security FOR Costs, X,7„ 9. 
 
 — Staying Proceedings, II, 3. 
 
 — Vendor and Purchaser, I, 2; IV, 3, 
 
 5, 8, 10; VII, 6. 
 
 WANT OF EQUITY. 
 
 See Pleading, VI, 1. 
 
 WANT OF MERITS. 
 
 See Practice, XX, B, 3, 7. 
 
 WAREHOUSEMAN. 
 
 See Company, II, 1. 
 
 — Sale of Goods, II, 3. 
 
 —■ RAIJ.WAYS, II, 2, 3; III, 3. 
 
 WAREHOUSE RECEIPT 
 
 Bank Act, ss. 64, 68, 74, 75—/. 
 ment of goods under form in Schedule 
 C to the Bank Act — SvhstUution of other 
 goods for those described — Purchase for 
 ralue without notice. 
 
 One A., a wholesale purchaser and ship- 
 per of dead stock and the products there- 
 of, obtained several advances of money 
 from the defendants on the security of 
 assignments of certain hog products in 
 the form in Schedule C to the Bank Act; 
 and agreed with the manager of the 
 Bank to ticket. the goods so as to identify 
 them, and not to sell the goods. He then 
 set apart certain of the goods as belong- 
 ing to the defendants, and placed tickets 
 over them to indicate thiSj' but afterwards 
 he sold all these goods' in the ordinary 
 course of business and substituted other 
 goods of a like character in their place, 
 placing the same tickets upon them. 
 Subsequently, the plaintiffs, as security 
 for a then pre-existing debt due them 
 from A., obtained an assignment of the 
 same kind as the defendants had taken, 
 covering inter alia 10,000 lbs. of bacon, 
 but no appropriation of any particular 
 bacon as hypothecated to the plaintiffs 
 was made until about seven weeks later, 
 when, at the instance of an officer of 
 the plaintiffs, A. set apart 10,000 lbs. 
 of bacon out of the pile which had been 
 appropriated to the defendants in the 
 manner above described, and this quan- 
 tity was ticketed with the name of the 
 plaintiff Bank, the defendants' tickets 
 being removed. Shortly afterwards A. 
 absconded, and the defendants took 
 possession of this 10,000 lbs. of bacon 
 under their securities. 
 
 Held, that they were entitled to hold 
 it against the plaintiffs. 
 
 Held, also, that, notwithstanding the 
 language of s. 75 of the Bank Act, a Bank 
 may take securities of the kind provided 
 for by s. 74, even for pre-existing debts, 
 as the general provisions of s. 68 should 
 not be held to be restricted by the lan- 
 guage of s. 75 so as to prevent it. La 
 Banque d' Hochelaga v. Merchants' Bank, 
 10 M.R. 361 
 
 WARRANT OF COMMITMENT. 
 
 See Criminal Law, XIII, 5; XVI. 
 — Extradition, 8. 
 
 WARRANT OF DISTRESS. 
 
 See Public Officer. 
 
a225 
 
 WAREANTY. 
 
 1226 
 
 WARRANTY. 
 
 1. Action on,_ previous to payment 
 of purchase price — Measure of damages 
 — Mvyoinder of plaintiff. 
 
 . Action upon a warranty given on 
 sale of second hand machinery "good 
 for twelve months with proper care." 
 The action was brought in the name of 
 two persons, to one only of whom the 
 warranty had been given. 
 
 Held, 1. That, no objection to the frame 
 of the suit having been taken at the trial, 
 the Court in Term had power to give 
 judgment for the proper plaintiff. 
 
 2. That damages coidd be recovered 
 for a breach of the warranty, notwith- 
 standing that the purchase money had 
 not been paid, pronjissory notes having 
 been given for the amount. Church 
 V. Abell, 1 S. C. R. 442, distinguished. 
 
 3. The measure of damages was the 
 sum which, at the time of the sale, it 
 would have been necessary to expend 
 in order to remove any defect which con- 
 stituted a breach of the warranty. Cook 
 V. Thomas, 6 M.R. 286. 
 
 2. Conditional Sale of Goods— <SaZe 
 
 of goods — Agreement for — Action for 
 breach of — Property passing — Damages — 
 Measure of—Bailrrtent. 
 
 Plaintiff sued in a County Court upon 
 a promissory note given to Viim by de- 
 fendant upon an agreement for the sale 
 of a horse. 
 
 A condition of the agreement was that 
 the property was not to pass to defendant 
 until payment. ■ Defendant filed a counter 
 claim for breach of an alleged warranty 
 that the horse was sound. The horse 
 was delivered to defendant and used by 
 him for some time, but died before mat- 
 urity of the note from a cause nctt con- 
 nected with the unsoundness complained 
 of.. At the trial, the Jury found that 
 there was a warranty, that the horse 
 was unsound, and that the difference in 
 value between the horse as it was, when 
 delivered, . and it would have been it 
 sound, was $90, for which amount a 
 verdict was entered for defendant on 
 the counter claim. 
 
 The plaintiff appealed to the Court 
 of Queen's Bench. 
 
 Held, 1. That the consideration for 
 the note was in part the bailment, and 
 in part the promise of the vendor to sell. 
 
 2. That an action lay for the breach 
 of warranty, and that the purchaser 
 should recover as general damages, for 
 
 the period of, the bailment and for the 
 proposed sale together, the same amount 
 as u there were an immediate sale. 
 
 3. That the right of action for the 
 breach of warranty arose at once, just 
 as in the case of an absolute sale of a 
 specific chattel. 
 
 Frye v. Milligan, ,10 O. R. 509 and 
 Tomknson v. Morris, 12 O. R. 311, not 
 followed. Copeland v. Hamilton, 9 M.R. 
 143. 
 
 3. Damages — Measure of damages — 
 Evidence to prove liability for commission 
 — Breach of warranty. 
 
 Action to recover the' price of a thresh- 
 ing outfit, consisting of a new separator 
 and a second-hand engine, sold to the 
 defendant. The engine had been war- 
 ranted to be in first-class repair and in 
 good running order. The trial Judge 
 found as a fact that it was not in first- 
 class repair when delivered to the de- 
 fendant, but that he nevertheless accepted 
 it. 
 
 The chief question to be decided, 
 therefore, was the amount of damages 
 to be allowed for the breach of warranty. 
 The defendant discovered nearly all of the 
 defects complained of before he started 
 using the machine and the others almost 
 at once after starting; but, instead of 
 proceeding at once to have the missing 
 parts supplied, h^ continued to operate 
 the machine in its defective condition 
 without complaining to the plaintiff 
 of anything but the friction. 
 
 Held, foUowiiig Crompton v. Hoffman, 
 (3903) 5 O.L.R. 554, that there could be 
 no recovery for damage which might have 
 been prevented by reasonable' efforts 
 on the defendant's part. The defendant 
 was bound, as soon as he discovered the 
 defects complained of, to take the neces- 
 sary steps to remedy them, and could 
 not recover anything for damages beyond 
 what he would have sustained had he 
 pursued that course. 
 
 The measure of the defendant's damage 
 is the amount that it would have cost 
 to put the engine in the condition it was 
 warranted to be in, plus his loss of profits 
 or from delays during the time that would 
 necessarily elapse before these repairs 
 could be made had he acted proinptly 
 after discovering them. 
 
 On defendant's default in payment 
 the plaintiff had repossessed and resold 
 the outfit and sought to deduct from the 
 proceeds of the sale the sum of $250, 
 which he said he had had to pay by way 
 
1227 
 
 WARRANTY OF AUTHORITY. 
 
 1228 
 
 of commission on the resale. There was 
 no evidence that the sale had been made 
 through an a^ent, or, if it was, what the 
 proper commission should be. 
 
 Held, that the plaintiff had not suffi- 
 ciently established his right to charge 
 such commission against the defendant 
 and that it should not be allowed to him. 
 Mawhinney v. Porteous, 17 M.R. 184. 
 
 4. Description of goods — Sale of goods 
 — Contract for work and materials. 
 
 The plaintiffs submitted a written 
 proposal to defendant to supply and erect 
 in operating order in the basement of 
 defendant's theatre, on foundations sup- 
 pUed by defendant, an engine, generator 
 and switchboard for a sum mentioned. 
 The proposal embodied specifications for 
 thfc sngine describing an "Ideal" engine 
 in language evidently that of the manu- 
 facturers as follows: "The Ideal engine 
 is particularly adapted to direct connected 
 work on account of its perfect balance, 
 quiet running." The proposal was ac- 
 cepted by defendant who had previously 
 selected the kind of engine he wanted 
 from a number of different kinds men- 
 tioned in the preliminary discussions. The 
 plaintiffs performed the contract, but 
 the engine could not be made to run 
 quietly enough to satisfy the defendant 
 as the noise was heard in the auditorium 
 above. 
 
 Held, that the bargain was not a sale 
 of goods but a contract for work and mat- 
 erials and that there was no warranty 
 that the engine would be "quiet running" 
 but only a recommendation of the type 
 of engine chosen for the work required. 
 
 The clause was general in its terms 
 and had not in view any particular use 
 of the engine. 
 
 Chalmers v. Harding, (1868) 17 L. T. 
 571, followed. Allis, Chalmers, Bullock 
 V. Walker, 21 M.R. 770. 
 
 6. Fraudulent representations — 
 
 Promissory note — Counterclaim — Principal 
 and surety — Damages for breach, of war- 
 ranty—Consolidation of cross actions — 
 Set-off of verdicts. 
 
 1. It is no 'defence to an action on a 
 promissory note that it was given for 
 the price of an article sold by the payee 
 to the maker with a warranty which has 
 been broken, unless the vendor was guilty 
 of a fraudulent or reckless misrepresen- 
 tation in making the sale; the maker's 
 proper remedy being either to counter- 
 
 claim or bring a cross action for damages 
 for the breach of warranty. 
 
 2. A party who has signed such a note 
 as surety for the maker may, if sued along 
 with the maker, set off against the plain- 
 tiff any damages which the. maker would 
 be entitled to recover against him for 
 the breach of warranty. 
 
 Bechervaise v. Lewis, (1872) L.R. 7 
 C.P. 372, followed. 
 
 When the maker of the note brought 
 a cross action for the breach of warranty, 
 instead of counterclaiming in the action 
 brought against him, and recovered a 
 verdict for damages exceeding the amount 
 due on the note, the two actions, having 
 been tried together, were consohdated, 
 one verdict was set off against the other, 
 and final judgment ordered to be entered 
 in the consolidated action in favor of the 
 n»aker of the note for the difference only. 
 Illustration of the proper assessment 
 of damages for breach of a warranty that 
 a stallion sold was a sixty per cent, foal 
 getter. La Fleche v. Bemardin, Bernardin 
 V. La Fleche, 21 M.R. 315. 
 
 Appealed. 
 See Contract, III, 1; XII, 1; XIV, 2. 
 
 MiSBBPBESENTATION, IV, 4. 
 
 — Pbincipaii and Agent, I, 6, 7. 
 
 — Sale of Goods, IV, 1; V; VI, 1. 
 
 WARRANTY OF AUTHORITY. 
 
 See Parties to Action, 6. 
 
 — Principal and Agent, V, 6. 
 
 WARRANTY OF TITLE. 
 
 See Covenant, 1. 
 
 — Evidence, 15, 17. 
 
 — Sale of Land for Taxes, I, 2. • 
 
 — Vendor and Puechaser, VII, 12. 
 
 WARRANTY OF TITLE TO GOODS. 
 
 See Banks and Banking, 7. 
 — Hay. 
 
 WASTE. 
 
 See MoRTGAaoR and Mortgagee, VI, 10. 
 
1229 
 
 WATERCOURSE. 
 
 1230 
 
 WATERCOURSE. 
 
 Drainage — Bight to obstruct flow of 
 water. 
 
 A watercourse consists of bed, banks 
 and water and, while the flow of the water 
 need not be continuous or constant, 
 the bed and banks must be defined and 
 distinct enough to form a channel or 
 course that can be seen as a permanent 
 landmark on the ground. 
 
 The plaintiff's claim was that a water- 
 course ran through her land into and across 
 the defendant's land, and that for some 
 years past the defendant had obstructed 
 the flow of water in this watercourse 
 by building a dyke or embankment across 
 it on his own land, the effect of which 
 had been to throw the water back upon 
 and overflow the plaintiff's land. 
 
 According to the evidence, what the 
 plaintiff claimed to be a watercourse was 
 merely a depression in the surface of the 
 country extending through the plaintiff's 
 land, crossing into the defendant's land 
 and continuing through it until it reached 
 a slough or giilly which finally emptied 
 into Long Lake. There was no continuous 
 flow of water through this depression, 
 but every spring the rain and melted snow 
 from the lands south and west of the plain- 
 tiff's land and from the higher parts of her 
 own land flow or drain into it and, cover- 
 ing it to a depth of six inches or more 
 according to the season, gradually pass 
 off, in the' absence of obstruction,, across 
 the defendant's land into the slough. 
 In the high water there is a perceptible 
 northerly current for a few days, and the 
 height of the water 'on the slope of the 
 depression and the general course of its 
 flow are defined by the rubbish deposited 
 along the edge of the current, but the posi- 
 tion of this line of rubbish varies from 
 year to year, according to the height of the 
 water. Apart from this, there was no 
 evidence of the existence of any banks 
 or edges of a channel through which the 
 water flowed, and in some years the plain- 
 tiff had cultivated portions of this de- 
 pression right up to her western Une. 
 
 Held, that there was no watercourse 
 which plaintiff had any right to have 
 kept free and clear of obstruction for the 
 benefit of her land, and that her actioa 
 must be dismissed with costs. 
 
 An occupant or owner of land has no 
 right to drain into his neighbor's land 
 the surface water from his own land 
 not flowing in a defined channel, and the 
 rule of the CivU law, that the lower 
 
 of two adjoining estates owes a servitude 
 to the upper to receive the natural drain- 
 age, does not apply in this Province. 
 
 WWiams v. Richards, (1893) 23 O.R. 
 651, and Ostrom v. SiOs, (1897) 24 A. R. 
 526, followed. Wilton v. Murray, 12 
 M.R. 35. 
 
 WAY OF NECESSITY. 
 
 Right of Vfay—Parpl grant of right of 
 way — Easement by prescription — Construc- 
 tive notice. 
 
 The plaintiff's claim was for damages 
 for trespass and an injunction to prevent 
 defendant from exercising an alleged 
 right to cross the plaintiff's land in going 
 from his farm to the travelled road. 
 The two parcels of land were separated 
 by at least half a mile, but evidence 
 was given to show that in the year 1875 
 the plaintiff's predecessor in title had, 
 as part of an agreement for an exchange 
 of the two parcels with the defendant, 
 promised verbally to allow the latter 
 the right to cross the parcel in question 
 and that the defendant had exercised 
 this right for four or five years. His 
 user of the way, however, ceased after 
 that for six or seven years until, about 
 1886 or 1887, he commenced to use th6 
 trail over the plaintiff's land at times 
 for heavy loads ; but in 1892 the defend- 
 dant himself built a fence without any _ 
 gate right across the very trail which he ' 
 claimed the right to use and between the 
 plaintiff's land and a parcel on the east 
 of it which the defendant had in the mean- 
 time acquired. There was no evidence 
 to show that the plaintiff when he acquired 
 the land had any notice of the alleged 
 agreement for a right of way. 
 
 Held, (1) That the intermittent use 
 by the defendant of a convenient old 
 trail was not sufficient to affect the plain- 
 tiff with constructive notice of the alleged 
 agreement. 
 
 .(2) That defendant was not entitled 
 to use the trail as a way of necessity 
 notwithstanding that there were natural 
 obstacles to lus reaching the travelled 
 highway by any other road. 
 
 (3) That there was no such contin- 
 uous enjoyment of the way as is necessary 
 to estabUsh an easement by prescription 
 under 2 & 3 Wm. 4, c. 71, s. 2. 
 
 Carr v. Foster, (1842) 3 Q.B. 581, and 
 HoUins V. Vemey, (1884) 13 Q.B.D. 308, 
 followed. 
 
!1231 
 
 WEDDING PRESENTS. 
 
 1232 
 
 (4) That the evidence was not' sufiB- 
 cient to establish a definite agreement 
 for a perpetual right pi way or to warrant 
 the interference of a Coxirt of equity by 
 way of specific performance, as the agree- 
 ment was made when the country was 
 sparsely settled and the road allowances 
 were not expected to be speedily made 
 passable, and the passage across the 
 intervening land not Owned by either 
 party might have been shut off at any 
 time. Hvddlesione v. Love, 13 M.R. 432. 
 
 WEDDING PRESENTS. 
 
 See Alimony, 5. 
 
 WEIGHT OF EVIDENCE. 
 
 See Libel, 5. 
 
 — New Trial, 2, 6. 
 
 WEIGHTS AND MEASURES ACT. 
 
 1. Burden of proof of Ulegality — 
 
 Voluntary payment of price of threshinq 
 ftscertained in viohMon of Weights and 
 Measures Act — Appropriation of payments. 
 
 Appeal from a County Court. . 
 
 The chief. part of the plaintiff's claim 
 was for the price of threshing oats and 
 wheat for defendant and the defence was 
 that the quantities were ascertained in 
 • a manner prohibited by the Weights 
 and Measures Act, R.g.C. 1886; c. 104, 
 and that therefore the plaintiff could 
 not recover. 
 
 , It appeared from the evidence that 
 the oats threshed had been measured 
 by the bag, but it also appeared from a 
 statement rendered to plaintiff by de- 
 fendant that he had credited plaintiff 
 with the amount of his account for 
 threshing the oats and charged plaintiff 
 with certain items dated prior to any 
 other credit to plaintiff and amounting 
 to about the same as the price of threshing 
 the oats. 
 
 Held, following the rule in Clayton's 
 Close, (1816) 1 Mer. 610, that defendant 
 had appropriated the amount of his 
 said charges in settlement of the price 
 of threshing the oats, and, following 
 Hughes v., Chambers, 14 M.R. 163, that 
 he could not now set off, such amount 
 against the price of threshing the wheat. 
 !,.As, to the/threshing of the wheat, the 
 Ijargain wa^ .that: defendant was to pay 
 by car measurement if it was cleati, ifndt,. 
 
 then by bag measurement, neither of 
 which modes would be legal under the 
 statute ; but defendant in the statement 
 rendered to plaintiff had credited him 
 with the threshing of 4,597.20 bushels 
 of wheat at SJ cents, per bushel. The 
 defendant gave no evidence, and there 
 was no express testimony, that the wheat 
 had been measured by the bag, but the 
 trial Judge held that the proper infer- 
 ence was that the measurement had 
 been by the bag, and he dismissed the 
 plaintiff's claim. 
 
 Held, following Hanbury v. Chambers, 
 10 M.R. 167, that the trial Judge was 
 not bound to draw such inference in a 
 case where it would enable defendant 
 to evade payment of an honest claim ; 
 that, as there was no conflict of testimony, 
 the appellate Judge was free' to follow 
 his own views as to the conclusions to 
 be drawn from the evidence, that the 
 ■ defence raised should not prevail without 
 strict proof of a violation of the Act, 
 and that there was no such proof in this 
 case. Fox v. Allen, 14 M.R. 358. 
 
 2. Measuring grain in bags — Void 
 contract. 
 
 The plaintiff contracted with the de^ 
 fendant to thresh his grain at a price 
 per bushel. At the threshing the threshed 
 grain was run into bags, each supposed 
 to contain two bushels, and the quantity 
 was estimated by the number of bags. 
 It was not ascertained either by measur- 
 ing with a Dominion Standard Measure 
 or by weighing. Section 21 of The 
 Weights and Measures Act, c. 104, 
 R.S.C. 1886, provides that "Every con- 
 tract bargain or dealing made or 
 
 had in Canada in respect of any work . . . 
 
 which has been or is to be done 
 
 ... or agreed for by weight or measure; 
 shall be deemed to be made and had 
 according to one of the Dominion weights 
 or measures ascertained by this Act . . 
 
 and if not so made or had shall 
 
 be void, except when made according 
 to the metric system." 
 
 Held, that under this enactment the 
 plaintiff could not recover anything for 
 the work he had done. 
 
 Manitoba Electric & Gas Light Co. v. 
 Gerrie, 4 M.R. 210, followed. Macdonald 
 V. Cmrigal, 9 M.R. 284. 
 
 Distinguished, Ferris v. C.N.R. 15 
 M.R. 134. 
 
 See Chose iN Action, 1. 
 — Plbaping, I, 2. 
 
1233 
 
 WHEN PROPERTY PASSES. 
 
 1234 
 
 WHEN PROPERTY PASSES. 
 
 See County Court, II, 4. 
 
 — Fi. Fa. Goods, 4. 
 
 — Sale of Goods, IV, 4. 
 
 WILL. 
 
 I. Construction op. 
 II. Lbgact. 
 III. Miscellaneous Cases. 
 
 I. Construction of. 
 
 1. Charge on estate — Application of 
 rents upon mortgage — Improvements under 
 mistake of title. 
 
 A testator appointed executors "direct- 
 ing my said executors to pay all my 
 iiist debts and funeral expenses and the 
 legacies hereinafter given out of my es- 
 tate." In a subsequent part of the 
 win it was provided that, 'after paying 
 off my said debts and funeral expenses, . 
 I give and bequeath to my daughter M. 
 the sum of $5000 to be paid to her at the 
 age of 21 years by my executors and I 
 give to my wife aU my real estate whatso- 
 ever and wheresoever and all my chattels 
 and household furniture with the excep- 
 tion of the above named legacy." "And 
 also my executors to educate and provide 
 all necessaries for said child (M.) from my 
 estate until she is 21 years of age over 
 and above the $5000 above mentioned." 
 
 The plaintiffs had a mortgage upon 
 part of the real estate of the testator. 
 After his death they loaned the widow 
 a further sum for the purpose of erecting 
 buildings upon it. After default they 
 took possession under the first mortgage 
 and appropriated the rents to its payment. 
 Upon a bill to foreclose the second mort- 
 gage, 
 
 Held, 1. That the legacy and provision 
 for maintenance and' education were 
 a charge upon the real estate. 
 
 2. That the plaintiffs were not entitled 
 to priority over these charges either upon 
 the ground of mistake in title, or because 
 the Court would have sanctioned the loan 
 on behalf of the infant if applied to at 
 the time. 
 
 3. The plaintiffs could not be permitted 
 to change the application of the rents 
 to the reduction of the second mortgage. 
 Confederation Life Ass. v. Moore, 6 M.R. 
 162. — ' 
 
 2. Gift of residue to exe«utors, 
 whether absolute or in trust. 
 
 A testator devised and bequeathed 
 all his property to two executors and 
 trustees "in trust" to pay debts and cer- 
 tain legacies, and invest the residue and 
 pay the net annual income to his widow 
 during her life. He then gave certain 
 legacies and disposed of the residue 
 as follows: "subject to the foregoing 
 trusts in favor of my said wife and the 
 payment of my funeral and testamentary 
 expenses, debts and legacies and directions 
 as aforesaid, I give all my lands, chattels 
 real, real and personal estate . unto my 
 trustees to be appUed and disposed of as 
 to them, in their uncontrolled and abso- 
 lute discretion, shall seem fit." 
 
 Held, that under the above clause 
 the trustees had no absolute disposing 
 power over the residuary estate, but held 
 it in trust. Re Magnus -Brown, 8 M.R. 
 391. 
 
 3. Precatory trust — Proceeds of sale 
 of. right to siibscribe for new shares in cor- 
 poration, whether capital or income. 
 
 Application by the executors of the 
 wUl of WiUiam Walton for advice and 
 directions under section 42 of The Mani- 
 toba Trustee Act, RS.M. 1902, c. 170. 
 The deceased owned 52 shares of the 
 common stock of the. Canadian Pacifie 
 Railway Company and, after his death, 
 his executors were given the right to sub- 
 scribe for a certain number of shares of 
 new stock issued by the Company at 
 125. They sold this right for the sum of 
 $511.42. 
 The will contained the following request: 
 "I bequeath to each of my sons WiUiain, 
 Thomas and Percy one third of my stock 
 or shares in the Canadian Pacific Railway 
 Company, the share of each to be trans- 
 ferred in the books of the Company to 
 each of my said legatees. My wish and 
 desire, however, is that, though each of 
 my said three sons shall have had such 
 shares so transferred to them as afore- 
 said, they shaU not dispose of them but 
 only the income derived therefrom shall 
 be expended by them respectively, and 
 that, upon the death of each of them, 
 his share shall be disposed of and the pro- 
 ceeds thereof divided equally amongst 
 all my grandchildren and, in the event 
 of my son Percy dying and not leaving 
 lawful issue, his share shall be sold and 
 apportioned amongst my grandchildren 
 as aforesaid." 
 
1235 
 
 WILL. 
 
 1236 
 
 Held, (1) That the will should be con- 
 strued as creating a precatory trust of 
 the shares in favor of the grandchildren, 
 allowing the legatees only the income 
 during their Uves, and that the executors 
 would not be justified in transferring the 
 shares absolutely to the three sons. 
 
 In re Hamilton, [1895] 2 Ch. 370; In 
 re Williams, [1897] 2 Ch. 12, and In 
 re OldfieU, [1904] 1 Ch. 549, distinguished. 
 
 (2) The proceeds of the sale of the right 
 should be treated as an addition to the 
 capital and not as income, and the leg- 
 atees were only entitled to the income 
 to be derived therefrom. Re Walton 
 Estate, 20 M.R. 686. 
 
 4. Words of absolute gift to A. fol- 
 lowed by direction that after death 
 of A, on the happening of a certain 
 event, the property be equally divided 
 between B. Sind C. — Trammer under 
 Real Property Act. 
 
 Appeal frdm the refusal of the District 
 Registrar to register a transfer of land 
 under The Real Property Act from the 
 testator's widow in her capacity of exe- 
 cutrix to herself individually in fee simple. 
 
 Testator by his will, after using words 
 which imported an absolute gift of all 
 his property to his widow, proceeded to 
 direct that, upon the happening of a certain 
 contingency, after the death of his widow, 
 the property be divided equally betwe^en 
 two _ named classes of persons. That 
 contingency might still happen. 
 
 Held, that the District Registrar was 
 iustified in refusing to register the trans- 
 fer. Re Simon, 19 M.R. 450. 
 
 II. Legacy. 
 
 1. Specific or pecuniary legacy — 
 
 Conversion — Interest — Capital or income. 
 
 In a will there was the following be- 
 quest: — "I bequeath to my dear wife 
 Sarah the interest on £1,000, out of the 
 moneys invested by me in the Montreal 
 Bank in Canada, to be annually paid to 
 her by my executors hereinafter mentioned, 
 and for her sole use and benefit during 
 her Ufe, and at her death the above 
 £1,000 to be equally divided among 
 all my children surviving, share and share 
 alike." 
 
 At his death the testator was possessed 
 of a considerable number of shares 
 in the capital stock of the bank, the divi- 
 dends upon which were payable half 
 yearly. 
 
 After the death, for the purpose of carry- 
 ing into effect the bequest, the executors 
 transferred to one of their number twenty- 
 two shares of the stock, and he executed 
 a declaration of trust, by which he de- 
 clared that he held the same in trust 
 for the widow and her children, upon 
 the terms that he was annually to pay 
 to the widow, in satisfaction of the inter- 
 est appointed to be armually paid to her, 
 all such dividends or interest on the 
 twenty-two shares as should accrue 
 to him, and in the event of the death of 
 the widow he was to surrender the shares 
 for the purpose for which the sum of 
 £1,000 was bequeathed. 
 
 Afterwards the capital stock of the bank 
 was increased, and four shares of the new 
 issue were in effect added by the process 
 to the twenty-two old shares. 
 
 Held, 1. The bequest was pecuniary 
 and not specific. The general rule is 
 that a legacy of stock out of stock is speci- 
 fic, but of money out of stock, pecuniary. 
 
 2. The assignment of stock and de- 
 claration of trust did not amount to a 
 conversion and investment, or an appro- 
 priation amounting "to payment. Noth- 
 mg short of a conversion of the stock and 
 the investment of suflSoient of the proceeds 
 in an authorized security to answer the 
 particular legacy could be such an ap- 
 propriation. Bank stock is not a security 
 authorized by the Court. 
 
 3. The twenty-two shares and the four 
 shares 'always remamed part of the estate. 
 
 4. The widow was entitled to interest 
 at six per cent, from the expiration of 
 one year after the testator's death. 
 
 Semble. — 1. Any loss accruing to the 
 estate through the non-conversion of 
 the stock within a year from the death 
 would fall upon the general estate. 
 
 2. An express direction by a testator 
 for the conversion and investment of 
 his property, from time to time, as the 
 trustees may think fit, wiU not prevent 
 the operation of the general rule that 
 where personal property is given in a 
 series of limitations it shaU be invested 
 in such securities as axe approved by a 
 Court of Equity, for the benefit of parties 
 interested m remainder after the death 
 of the tenant for life. If no such conver- 
 sion has actually taketi place the rule 
 is that, between legatees for life and in 
 remainder, a conversion will be deemed 
 to have taJken place at the expiration of 
 
' CASES AFFIRMED, FOLLOWED, ETC. 11 
 
 Column 
 of Digest. 
 
 Forman v. Liddlesdale, [1900] A.C. 190 
 
 Referred to : Davis v. O'Brien, 18 M.R. 80 117 
 
 Fraser v. C. P. R., 17 M.R. 667 
 Appeal dismissed by consent, the case having been settled 562 
 
 Free Church of Scotland v. Overtoun, [1904] A.C. 515 
 Followed : . Rex v. Wasyl Kapij, 15 M.R. 110 293 
 
 Freehold Loan Co. v. McLean, 8 M.R. 116 
 Followed : British Can. Loan & Agency v. Farmer, 15 M.R. 593 1032 
 Distinguished : Credit Foncier Franco-Canadien v. Schultz, 9 
 
 M.R. 70 : 720 
 
 Frontenac Loan Co. v. Morice, 3 M.R. 462 
 In appeal : 4 M.R. 442 11 
 
 Frost V. Driver, 10 M.R. 319 
 
 Followed : Roberts v. Hartley, 14 M.R. 284 479 
 
 Distinguished : AUoway v. St. Andrews, 15 M.R. 188 1011 
 
 Fulton V. Andrew, L:R. 7 H.L. 448 
 
 Referred to : Wright v. Jewell, 9 M.R. 607 1240 
 
 G. T. R. V. McMillan, 16 S.C.R. 643 
 Followed : Hayward v. Canadian Northern Ry. Co., 16 M.R. 158 991 
 
 Garbutt v. Winnipeg, 18 M.R. 345 
 Followed : Shaw v. City of Winnipeg, 19 M.R. 234 783 
 
 Gault V. McNabb, 1 M.R. 35 
 Distinguished : Hickey v. Legresley, 15 M.R. 304 467 
 
 Gibbins v. Chadwick, 8 M.R. 209 
 Followed : Elliott v. May, 11 M.R. 306 955 
 
 Gibbins v. Metcalfe, 15 M.R. 583 
 
 Followed : Rex v. Gage, 18 M.R. 175 176 
 
 Giles V. McEwan, 11 M.R. 150 
 Followed : Holmwood v Gillespie, 11 M.R. 186 1133 
 
 Gilmour v. Simon, 15 M.R. 205 
 Affirmed : 37 S.C.R. 422 912 
 
 Goggin V. Kidd, 10 M.R. 448 
 Distinguished : Nichol v. Gocher, 12 M.R. 178 541 
 
 Gray v. Manitoba & N. W. R., 11 M.R. 42 
 Affirmed : [1897] A.C. 254 1002 
 
 Gray v. M. & N. W. Ry. Co., 11 M.R. 48 
 Followed : Burley v. Knappen, 20 M.R. 154 593 
 
12 CASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 GuUivan v. Cantelon, 16 M.R. 644 
 Referred to : Emperor of, Russia v. Proskouriakoff, 18 M.R. 57 . 597 
 
 Haffner v. McDermott (unreported) 
 
 Followed : Simpson v. Dominion Bank, 19 M.R. 246 543 
 
 Haines v. Can. Ry. Accidenl; Ins. Co., 20 M.R. 69 
 
 Affirmed : 44 S.C.R. 386 5 
 
 Hall V. South Norfolk, 8 M.R. 430 
 
 Followed : Re Cross and Gladstone, 15 M.R. 528 653 
 
 Distinguished : Re Brandon Election, 20 M.R. 705 741 
 
 Referred to : Little v. McCartney, 18 M.R. 323 569 
 
 Shaw V. Portage la Prairie, 20 M.R. 469 650 
 
 Hanbury v. Chambers", 10 M.R. 167 
 
 Followed : Hughes v. Chambers, 14 M.R. 163 143 
 
 Fox V. Allen, 14 M.R. 358 ■ ■. . 1232 
 
 Harris v. Rankin, 4 M.R. 129 
 Followed : Merchants Bank v. McKenzie, 13 M.R. 20 475 
 
 Harris v. Rankin, 4 M.R. 115 
 
 Followed : American Abell Co. v. McMillan, 19 M.R. 97 347 
 
 Harris u Robinson, 21 S.C.R. 391 > 
 Followed : Maber v. Penskalski, 15 M.R. 236 11^0 
 
 Hartt V. Wishard Langan Co., 18 M.R. 387 
 Dictum of Perdue, J.A., not followed in Sveinson v. Jenkins, 21 
 
 M.R. 746 . ., 1209 
 
 Hatch V. Oakland, 19 M.R. 692 
 Distinguished : Wallace v. Fleming, 20 M.R. 705 741 
 
 Harvie v. Snowden, 9 M.R. 313 
 
 Distinguished : Griffiths v. Winnipeg Elec. Ry. Co., 16 M.R. 512 604 
 
 Hechler v. Forsyth, 22 S.C.R. 489 
 
 Distinguished : Hutchings v. Adams, 12 M.R. 118 910 
 
 Herbert & Gibson, Re, 6 M.R. 191 
 
 Explained : Re Massey & Gibson, 7 M.R. 172 1018 
 
 Hess, Re, 23 S.C.R. 644 
 Distinguished : In Re Jones & Moore Elec. Company, 18 M.R. 
 
 549 150 
 
 Hesse v. St. John Ry. Co., 30 S.C.R. 218 
 Referred to : Sinclair v. Ruddell, 16 M.R. 53 438 
 
 Hickey v. Legresley, 15 M.R. 304 
 Followed : New Hamburg Manufacturing Co. v. Shields, 16 
 
 M.R. 212 222 
 
CASES AFFIRMED, FOLLOWED, ETC. 13 
 
 Column 
 of Digest. 
 
 Higley v. Winnipeg, 20 M.R. 22 
 Followed : Wood v. C. P. R., 20 M.R. 92 785 
 
 Hill V. Winnipeg Elec. Ry. Co., 21 M.R. 442 
 Appeal to the Supreme Court dismissed : 46 S.C.R. 654. ...... 790 
 
 Hobbs V. Ontario Loan & Debenture Co., 18 S.C.R. 483 
 Followed : Imperial Loan & Inv. Co. v. Clement, 11 M.R. 428. . 611 
 
 Hood V. Eden, 36 S.C.R. 476 
 Distinguished : Re Jones & Moore Elec. Co. 18 M.R. 549 150 
 
 Hovey v. Whiting, 14 S.C.R. 515 
 Followed : Fisher v. Brock, 8 M.R. 137 502 
 
 Howe V. Martin, 6 M.R. 6l6 
 Followed : Turner v. Tymchorak, 17 M.R. 687 578 
 
 Hudson's Bay v. Macdonald, 4 M.R. 237 
 Referred to : Canadian Fairbanks Co., Ltd., v. Johnston, 18 
 
 M.R. 590 .• 1189 
 
 Hughes V. Chambers, 14 M.R. 16^ 
 
 Followed : Fox v. Allen, 14 M.R. 358 1232 
 
 Victoria v. Strome, 15 M.R. 645 511 
 
 Hulbert v. Peterson, 36 S.C.R. 324 
 Followed : Roper v. Scott, 16 M.R. 594 131 
 
 Imperial Bank v. Farmers' Trading Co., 13 M.R. 412 
 Followed : Robertson v. Northwestern Register Co., 19 M.R. 
 
 402 •. 101 
 
 Imperial Loan Co. v. demerit, 11 M.R. 428 
 Followed: Stikeman v. Fummerton, 21 M.R. 754 612 
 
 Isbister v. Dominion Fish Co., 19 M.R. 430 
 Affirmed : 43 S.C.R. 637 782 
 
 Iveson V. Winnipeg, 16 M.R. 352 
 Distinguished : Forrest v. Winnipeg, 18 M.R. 440 784 
 
 Jackson v. Bank of Nova Scotia, 9 M.R. 75 
 Distinguished : Trust & Loan Co. v. Wright, 11 M.R. 314 1054 
 
 James v. G. T. R., 31 S.C.R. 420 
 
 Fol owed : Hunt v. G. T. P. Ry. Co., 18 M.R. 604 988 
 
 Johnson v. Land Corporation, 6 M.R. 527 
 Followed : McPherson v. Edwards, 19 M.R. 337 22 
 
 Jones & Moore Elec. Co., Re, 18 M.R. 549 
 
 Appeal to the Supreme Court settled before argument 150 
 
 Followed : Re Northern Constructions, 19 M.R. 528 150 
 
14 CASES AITIRMED, 'FOLLOWED, ETC. 
 
 Coliunn 
 of Digest. 
 
 Jones V. Simpson, 8 M.R. 124 
 
 Followed : . Martin v. Morden, 9 M.R. 565 1007 
 
 Keating v. Moises, 2 M.R. 47 - 
 "Not followed : Sinclair v. Mulligan, 5 M.R. 17 181 
 
 Kelly V. Imperial Loan, 11 S.C.R. 516 
 Comm'ented on : Grotty v. Taylor, 8 M.R. 188 723 
 
 Kelly V. Kelly, 20 M.R. 579 
 
 Appealed direct to the Privy Council. Judgment of Court of 
 Appeal reversed and ju4gment of Macdonald, J., restored 
 
 with certain variations, 23 W.L.R. 953 826 
 
 King V. Kuhn, 4 ]y[.R. 413 
 
 Overruled : Roff v. Krecker, 8 M.R. 230 , 136 
 
 King V. McArthur, 34 S.C.R. 570 
 
 Followed : Re Shragge and City of Winnipeg, 20 M.R. 1 1001 
 
 King V. Nunn, 15 M.R. 288 
 
 Followed : Watt v. Drysdale, 17 M.R. 15 28 
 
 King V. Roche, 11 M.R. 381 
 Appeal to the Supreme Court quashed, : 27 S.C.R. 219 354 
 
 King V. Stewart, 32 S.C.R. 483 
 
 Followed : Wilkes v. Maxwell, 14 M.R. 599 921 
 
 Kingston, City of, v. Drennan, 27 S.C.R. 46 
 
 Followed : Taylor v. Winnipeg, 12 M.R. 480 756 
 
 Kirchhoffer v. Clement, 11 M.R. 460 
 
 Followed : Meighen v. Armstrong, 16 M.R. 5 134 
 
 Leacock «. McLaren, 9 M.R. 699 
 
 Followed : Valentinuzzi v. Lenarduzzi, 16 M.R. 121 1124 
 
 Leadlay v. McGregor, 11 M.R. 9 
 Followed : In Re Anderson's Estate, 16 M.R. 177 630 
 
 Lee V. Gallagher, 15 M.R. 677 
 
 Followed : .Winnipeg v. Winnipeg Elec. Ry> Co., 19 M.R. 279 . . 841 
 
 Liquor Act, Re, 13 M.R. 239 
 
 Reversed : [1902] A.C. 73 183 
 
 Lisgar, Re, 7 M.R. 581 
 See 20 S.C.R. 1 ^. 356 
 
 Lisgar Election, Re, 14 MR. 310 
 The appeal to the Supreme Court lapsed by reason of the dis- 
 solution of the House of Commons , 360 
 
CASES. AFFIRMED, FOLLOWED, ETC. 15 
 
 Column 
 of Digest. 
 
 Lisgar, Re, 13 M.R. 478 
 
 Referred to : Re Lisgar Election, 14 M.R. 310 360 
 
 Little V. McCartney, 18 M.R. 323 
 Distinguished : Adams v. Woods, 19 M.R. 285 655 
 
 Locators v. Clough, 17 M.R. 659 
 
 Appeal to Supreme Court abandoned 917 
 
 Referred to : Hughes v. Houghton Land Co., 18 M.R. 686 917 
 
 Logan V. Winnipeg, 8 M.R. 3 
 On appeal to the Judicial Committee of the Privy Council, the 
 appeal of the defendants was allowed, and the judgment of. 
 the Court of Queen's Bench for Manitoba, reversed, 30th 
 July, 1892. Reported [1892] A.C. 445 186 
 
 London & Can. Loan & Agency Co. v. Morris, 7 M.R. 128 
 
 Appeal quashed : 19 S.C.R. 434 1152 
 
 Followed : Central Electric Co. v. Simpson,. 8 M.R. 94 1153 
 
 Referred to : Canada Settlers Loan Co. v. FuUerton, 9 M.R. 
 327 1150 
 
 London & Can. Loan Co. v. Morris, 9 M.R. 377 
 Followed : Can. Perm. v. East Selkirk, 21 M.R. 750 673 
 
 London & Lancashire v. Fleming, [1897] A.C. 499 
 
 Referred to : Whitla v. Royal Insurance Co., 14 M.R. 90 450 
 
 Longmore v. McArthur, 19 M.R. 641 
 Affirmed : 43 S.C.R. 640 795 
 
 Lunn V. Winnipeg, 2 M.R. 225 
 
 Followed : Burridge v. Ernes, 2 M.R. 232 .- 809 
 
 Macarthur v. Leckie, 9 M.R. 110 
 Followed : Sword v. Tedder, 13 M.R. 572 , 226 
 
 Macdonaild, Re, 27 S.C.R. 201 
 
 Distinguished : In Re Provencher Dominion Election, 13 M.R. 444 371 
 
 Macdonald, Re, 10 M.R. 294 
 
 Followed : Re Municipahty of Macdonald, 10 M.R. 382 767 
 
 Macdonald v. Corrigal, 9 M.R. 284 
 Distinguished : Ferris v. C. N. R., 15 M.R. 134. 975 
 
 Mahoney v. East Holyford, L.R. 7 H.L. 809 
 
 Followed : Muldowan v. German Can. Land Co., 19 M.R. 667 . 152 
 
 Makarsky v. C. P. R., 15 M.R. 53 
 
 Followed : Gardiner v. Bickley, 15 M.R. 354 334 
 
16 CASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 Malcolm v. McNichol, 16 M.R. 411 
 
 Appeal of defendant McNichol dismissed. Judgment aflBrmed, 
 with variation,,declaring the plumbers jointly liable with the 
 landlord : 39 S.C.R. 265 794 
 
 Leave to appeal to Privy Council refused 
 
 Maloney v. Campbell, 28 S.C.R. 228 
 
 ^Followed : Brough v. McClelland, 18 M.R. 279. 1051 
 
 Manitoba EleC. & Gas Light Co. v. Gerrie, 4 M.R. 210 
 
 Followed : Macdonald v. Corrigal, 9 M.R. 284 1232 
 
 Distinguished : Ferris v. C. N. R., 15 M.R. 134 975 
 
 Manitoba Mortgage Co. v. Bank of Montreal, 17 S.C.R. 692 
 
 Followed : Smith v. Thiesen, 20 M.R. 120 823 
 
 Man. & N. W. Loan Co. v. Barker, 8 M.R. 296 
 Followed : British Canadian Loan & Agency Co. v. Farmer, 15 
 
 M.R. 593 1032 
 
 Distinguished : Credit Foncier Franco-Canadien v. Schultz, 9 
 
 M.R. 70 720 
 
 Maritime Bank v. Troop, 16 S.C.R. 456 
 
 Followed : In Re Jones & Moore Elec. Co., 18 M.R. 549 150 
 
 Marquette Election, Re, King v. Roche, 11 M.R. 381 
 Appeal to the Supreme Court quashed ; 27 S.C.R. 219 354 
 
 Martin v. Manitoba Free Press Co., 8 M.R. 50 
 Appeal to the Supreme Court dismissed : 21 S.C.R. 518 626 
 
 Martin v. Morden, 9 M.R. 565 
 Followed : Re Cass and McDermid, 20 M.R. 139 1010 
 
 Martin v. Northern Pacific Express Co., 10 M.R. 595 
 
 Reversed : 26 S.C.R. 135 70 
 
 Massey & Gibson, Re, 7 M.R. 172 
 
 Followed : Merchants Bank v. McKenzie, 13 M.R. 20... . 475 
 
 Moore & Confederation Life Ass., Re, 9 M.R. 453 1019 
 
 Ontario Bank v. McMicken, 7 M.R. 203 1038 
 
 Massey-Harris v. Warener, 17 C.L.T. Occ. N. 409 
 Followed : Roberts v. Hartley, 14 M.R. 284 479 
 
 Massey-Harris v, Warener, 12 M.R. 48 
 ■Referred to : Canada Supply^ Co. v. Robb, 20 M.R. 33 485 
 
 Maxwell «. Clark, 10 M.R. 406 
 Followed : Elliott v, May, 11 M.R. 306 955 
 
 Meloche v. Dequire, 34 S.C.R. 24 
 Not applicable in Manitoba : Thomson v. Wishart, 19 M.R. 340 1119 
 
CASES AFFIRMEP, FOLLOWED, ETC. 17 
 
 Column 
 of Digest. 
 
 Merchants Bank v. Car'.ey, 8 M.R. 258 
 Distinguished : Nichol v. Gocher, 12 M.R. 178. . : 541 
 
 Merchants Bank v. Dunlop, 9 M.R. 623 
 Not followed : Bank of Hamilton v. Gillies, 12 M.R. 495 88 
 
 Merchants Bank v. Good, 6 M.R. 339 
 Followed : First National Bank v. McLean, 16 M.R. 32 96 
 
 Merchants Bank v. McKenzie, 13 M.R. 19 
 Distinguished : Logan v. Rea, 14 M.R. 543 479 
 
 Merchants Bank v. McLean, 5 M.R. 2L9 
 
 Overruled : Mclntyre v. Woods, 5 M.R. 347 580 
 
 Mey V. Simpson, 17 M.R. 597 
 Affirmed: 42 S.C.R. 230 ; 710 
 
 Meyers v. Prittie, 1 M.R. 27 
 Not followed : Hickey v. Legresley, 15 M.R.,304 467 
 
 Miller v. Dahl, 9 M R. 444 ., 
 Followed : Slouski v. Hopp, 15 M.R. 548 711 
 
 Miller v. Duggan, 21 F.C.R. 33 
 Distinguished : Case v. Bartlett, 12 M.R. 280 1040 
 
 Miller «. We si bourne, 13 M.R. 199 
 Followed : Cuperman v. Ashdown, 20 M-.R. 424 879 
 
 Molson's Bank v. Halter, 18 S C.R. 88 
 
 Followed : Bertrand v. Parkes, 8 M.R. 176 491 
 
 Fisher v. Brock, 8 M.R. 138 502 
 
 Roe V. Massey Manufacturing Co., 8 M.R. 126 ' 503 
 
 Stephens v. McArthur, 6 M.R. 496 • 501 
 
 Referred to : Colquhoun v. Seagram, 11 M.R. 339 498 
 
 Monkman v. Robinson, 3 M.R. 640 
 
 Followed: Merchants Bank v. Carley, 8 M.R. 258 415 
 
 Distinguished : Macdonald v. MiArthur, 4 M.R. 56 416 
 
 Monkman v. Sinnott, 3 M.R. 170 
 
 Distinguished : Cotter v. Osborne, 17 M.R. 248 193, 259 
 
 Moore v. Kennedy, 12 M.R. 173 
 ' Followed : McCaul v. Christie, 15 M.R. 358 ' 888 
 
 Moore v. Scott, 16 M.R. 492 
 See Union rnvest;ment Co. v. Wells, 39 S.C.R, 325 92 
 
 Morden v. South DufEerin, 6 M.R. 515 
 
 Reversed : 19 S.C.R. 204 180 
 
 Morrison v. Robinson, 8 M.R, 218 
 
 Distinguished : Griffiths v. Winnipeg Elec. Ry. Cp., 16 M.R. 512 604 
 
CASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 Moxley >. Can. Atlantic Ry. Co., 15 S.C.R. 145 
 Followed : Gotdanier v. C. N. R., 15 M.R. 1 408 
 
 Murphy v. Butler, 18 M.R 111 
 
 Reversed : 41 S.C.R. 618 932 
 
 Murray v. Jenkins, 28 S.C.R. 565 
 
 Followed : Jones Stacker Co. v. Green, 14 M.R. 61 205 
 
 McAllister v. Forsyth, 12 S.C.R. 1 
 Followed : Day u. Rutledge, ^2 M.R. 291 1076 
 
 McArthur v. Glass, 6 M.R. 224 
 
 Followed : Re Cass and McDermid, 20 M.R. 139 1010 
 
 McKay v. Nanton, 7 M.R. 250 " 1009 
 
 McArthur v. Macdonell, 1 M.R. 334 
 
 Followed : Braun v. Davis, 9 M.R. 534 513 
 
 # 
 
 McArthur v. McMillan, 3 M.R. 152 
 Affirmed : 3 M.R. 377 99 
 
 McCaffrey v. C. P. R., 1 M.R. 350 
 Followed : Callan v. C. N. R., 19 M.R. 141 ,.. 972 
 
 McCarthy v. Badgley 6 M.R. 270 
 Considered : Grant v. Hunfer, 6 M.R. 550 1013 
 
 McCleave v. Moncton, 32 S.C.R. 106 
 Referred to : Garbutt v. Winnipeg, 18 M.R. 345 783 
 
 . McEdwards v. Ogilvie, 4 M.R. 1 
 
 Followed : Armstrong v. Tyndall Quarry Co., 20 M.R. 254 ... . 681 
 
 Mc'^inney v. C. P. R., 7 M.R. 151 
 Distinguished : Guay v. C. N. R., 15 M.R. 275 995 
 
 McGugan v. Smith, 21 S.C.R. 263 
 Distinguished : Kinsey v. National Trust, 15 M.R. 32 231 
 
 Mclntyre v. Gibson, 17 M.R. 423 
 
 Followed : Hart v. Dubrule, 20 M.R. 234 508 
 
 Hime v. Coulthard, 20 M.R. 164 65 
 
 McKay v. Barber, 3 M.R. 41 
 
 Followed : First National Bank v. Curry, 20 M.R. 247 594 
 
 Rigby V. Reidle, 9 M.R. 139 593 
 
 McKay v. Chrysler, 3 S.C.R. 436 
 Considered : Alloway v. Campbell, 7 M.R. 506 1080 
 
CASES AFFIRMED, FOLLOWED, ETC. 19 
 
 Column 
 of Digest. 
 
 McKay v. Nanton, 7 M.R. 250 
 
 Followed : Re Cass and McDermid, 20 M.R. 139 1010 
 
 French v. Martin, 8 M.R. 362 507 
 
 Martin v. Morden, 9 M.R. 565 ... , 1007 
 
 Distinguished : Sprague v. Graham, 7 M.R. 398 '. . , 1015 
 
 McKellar v. C. P. R., 14 M.R. 614 
 FoUojfed : Hunt v. G. T. P., 18 M.R. 604 988 
 
 McKenzie v. Champion, 4 M.R. 168 
 
 Affirmed : 12 S.C.R. 649 921 
 
 Followed : Brydges v. Clement, 14 M.R. 588 924 
 
 McKenzie v. Fletcher, 11 M.R. 544 
 Followed : Blanchatd v. Muir, 13 M.R. 8 . : 636 
 
 McKerchar v. Sanderson, 15 S.C.R. 301 
 Followed : Gordon v. Handford, 16 M.R. 292 1133 
 
 McLean v. Hannon, 3 S.C.R. 706 
 Distinguished : Kirchhoffer v. Clement, 11 M.R. 460 133 
 
 McLellan v. Assiniboia, 5 M.R. 127 
 Appeal dismissed : 5 M.R, 265 1080 
 
 McLellan v. Assiniboia, 5 M.R. 265 
 Distinguished : Alloway v. Morris, 18 M.R. 364 1067 
 
 McMicken v. Ontario Bank (not reported) 
 Appeal to the Supreme Court dismissed : 20 S.C.R. 548 234 
 
 McMillan v. Byers, 4 M.R. 76 
 
 Reversed : 15 S.C.R. 194 224, 392 
 
 McMillan v. G. T. R., 16 S.C.R. 543 
 Followed : Ferris v. C. N. R., 15 M.R. 134 975 
 
 McMillan v. Williams, 9 M.R. 627 
 Distinguished : Holmwood v. Gillespie, 11 M.R. 186 1133 
 
 McRae v. Corbett, 6 M.R. 426 
 Followed : Nanton v. Villeneuve, 10 M.R. 213 1078 
 
 McSorley v. St. John, 6 S.C.R. 544 
 
 Followed : Alloway v. Morris, 18 M.R. 363 1067 
 
 Garbutt v. Winnipeg, 18 M.R. 345 783 
 
 Nagy V. Manitoba Free Press Co., 16 M.R. 619 
 
 Affirmed : 39 S.C.R. 340 III4 
 
 Nanton v. Villeneuve, 10 M.R. 213 
 Followed : Tetrault v. Vaughan, 12 M.R. 457 1078 
 
20 CASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 National Bank of Australasia v. Morris, [1892] A.C. 287 
 
 Followed : Schwartz v. Winkler, 13 M.R. 493 493 
 
 New Prance v. Hunting, [1897] 2 Q.B. 19 
 Same case sub nom.. Sharp v. Jackson, [1899] A.C. 419 
 Followed : Codville v. Fraser, 14 M.R. 12 494 
 
 Nicholson v. Peterson, 18 M.R. 106 
 Followed : Lane v. Rice, 18 W.L.R. 557. : 1212 
 
 Nordenfelt v. Maxim, Nordenfelt & Co., [1894] A.C. 535 
 
 Followed : Shragge v. Weidman, 20 M.R. 178 177 
 
 North Amer. Life v. Craigen, 13 S.C.R. 278 
 Followed : Re McGregor, 18 M.R. 432 632 
 
 North British & Mercantile Ins. Co. v. Tourville, 25 S.C.R. 177 
 Followed : Creighton v. Pacific Coast Lumber Co., 12 M.R. 547 ,1059 
 
 North Cypress v. C. P. R., 14 M.R. 382 
 Affirmed : 35 S.C.R. 550 120 
 
 North Perth Case, 29 S.C.R. 331 
 -Referred to : Re Lisgar Election, 14 M.R. 310 360 
 
 North-West Electric Co. v. "Walsh, 29 S.C.R. 33 
 
 Followed : Re Rockwood Elec. Div. Agr. Soc, 12 M.R. 656.. . 241 
 
 North-West Nav. Co. v. Walker, 4 M.R. 406 
 V Affirmed : 5 M.R. 37 774 
 
 North-West Thresher Co. v. Darrell, 15 M.R. 553 
 See Clark v. Waterloo Manufacturing Co., 20 M.R. 289 1062 
 
 North-West Timber Co. v. McMillan, 3 M.R. 277 
 Followed : Canadian Railway Accident Co. v. Kelly, 16 M.R 
 
 608. 1095 
 
 O'Brien v. Cogswell, 17 S.C.R. 420 
 
 Followed : Colquhoun v. Driscoll, 10 M.R. 254 1081 
 
 Hardy v. Desjarlais, 8 M.R. 550 527 
 
 Tetrault v. Vaughan, 12 M.R. 457 1078 
 
 Considered : AUoway v. Campbell, 7 M.R. 506 1080 
 
 Nanton v. Villeneuve, 10 M.R. 213 1078 
 
 Ontario and Quebec Ry. v. Philbrick, 12 S.C.R. 288 
 Followed : Blackwood v. C. N. R., 20 M.R. 161 971 
 
CASES AFFIRMED, FOLLOWED, ETC. 21 
 
 Column 
 of Digest. 
 
 Ontario Bank v. Gibson. 3 M.R. 406 
 
 Affirmed : 4 M.R. 440 90 
 
 Distinguished : First National Bank v. McLean, 16 M.R. 32 . . . 96 
 
 Owens V. Burgess, 11 M.R. 75 
 
 Followed : Chaz v. Les Cisterciens Reformes, 12 M.R. 330 444 
 
 Holliday v. Bussian, 16 M.R. 437 444 
 
 Parenteau v. Harris, 3 M.R. 329 
 Followed : Striemer v. Merchants Bank, 9 M.R. 546 536 
 
 Paterson v. Houghton, 19 M.R. 168 
 Followed : Bergman v. Cooke, 22 M.R. 435 
 
 Pearson v. Dublin, [1907] A.C. 351 
 Followed : Alloway v. Morris, 18 M.R. 364 1067 
 
 Pedlar v. C. N. R., 18 M.R. 525 
 Followed : Toronto Gen. Trusts Corp. v. Dunn, 20 M.R. 412. . . 68 
 
 Peoples' Loan & Deposit Co. v. Grant, 18 S.C.R. 262 
 
 Followed : Freehold Loan Co. v. McLean, 8 M.R. 116 •. . . . 720 
 
 Manitoba & North-West Loan Co. v. Barker, 8 M.R. 296 720 
 
 Distinguished : Credit Foncier v. Schultz, 9 M.R. 70 720 
 
 Peruvian Guano Co. v. Dreyfus, [1892] A.C. 166 
 Not applied : Robinson v. C. N. R., 19 M.R. 300 1003 
 
 Pion V. Romieux, 7 M.R. 591 
 Commented on : Smart v. Moir, 8 M.R. 203 254 
 
 Pocket V. Poole, 11 M.R. 508 
 Followed : Heath v. Portage la Prairie, 18 M.R. 693 529 
 
 Ponton V. Winnipeg, 17 M.R. 496 
 Affirmed : 41 S.C.R. 18 745 
 
 Prairie City Oil Co. v. Standard Mutual Fire Ins. Co., 19 M.R. 720 
 Reversed : 44 S.C.R. 40. Sub nom., Lewis v. Standard Mutual 
 
 Fire Ins. Co 448 
 
 Proctor V. Parker, 11 M.R. 485 
 
 Followed : Ritz v. Froese, 12 M.R. 346 843 
 
 Referred to : Ritz v. Schmidt, 13 M.R. 419 1136 
 
 Proctor V. Parker, 12 M.R. 529 
 
 Followed : Kennedy v. Portage la Prairie, 12 M.R. 634 758 
 
 Victoria v. Strome, 15 M.R. 645 '. . 511 
 
 Prohibitory Liquor Laws, Re, 24 S.C.R. 170 
 Followed : Crothers v. Louise, 10 M.R. 523 960 
 
 Public Works Commissioner v. Hills, [1906] A.C. 368 
 
 Followed : Whitla v. Riverview Realty Co., 19 M.R. 746 1188 
 
22 CASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 Qu'Appelle Valley Farming Co., Re, 5 M.R. 160 
 Followed : Re Rapid City Farmers' Elevator Co., 9 M.R. 574.. . 1246 
 
 Quebec Central Ry. v. Lortie, 22 S.C.R. 336 
 Distinguished : Guay v.C. N. R., 15 M.R. 275 995 
 
 Queb€;c, etc., Ry. Co. v. Julian, 37 S.C.R. 632 ' 
 Followed : Isbister v. Dominion Fish Co., 19 M.R. 430 782 
 
 Queen v. Taylor, 1 S.C.R. 65 
 Distinguished : Foulds v. Foulds, 12 M.R. 390 894 
 
 Quinn v. Leathem, [1901] A.C. 511 
 
 Followed : Cotter v. Osborne, 18 M.R. 471 1169 
 
 Referred to : Nagy v. Manitoba Free Press Co., 16 M.R. 620 . . 1114 
 
 Real Estate v. Molesworth, 3 M.R. 116 
 Followed : Fonseca v. McDonald, 3 M.R. 413 1036 
 
 Reg. V. Beale, 11 M.R. 448 
 
 Followed : Reg. v. Crothers, 11 M.R. 567 638 
 
 Referred to : Re Hunter, 16 M.R. 489 126 
 
 Reg. V. Burke, 6 M.R. 121 
 
 Followed : Re Moore, 20 M.R. 41 431 
 
 Re McCartney, 8 M.R. 367 436 
 
 Reg. V. Crothers, 11 M.R. 567 
 Referred to : Re Hunter, 16 M.R. 489 126 
 
 Reg. V. Grannis, 5 M.R. 153 
 Followed : Reg. v. Herrell, 12 M.R. 198 641 
 
 Reg. V. McDonald, 8 M.R. 491 
 Doubted : Reg. v. Gibbons, 12 M.R. 154 286 
 
 Reg. V. Prudhomme, 4 M.R. 159 
 Followed : Davis v. Barlow, 20 M.R. 158 814 
 
 Reg. V. Startey, 7 M.R. 43 
 Followed : Johnston v. O'Reilly, 1,6 M.R. 405 1147 
 
 Renton v. Gallagher, 19 M.R. 478 
 
 Affirmed : 47 S.C.R. 393 ; 669 
 
 Leave to appeal to Privy Council refused : 44 S.C.R. ix 
 
 Renwick v. Berryman, 3 M.R. 400 
 Followed,: Re Stangerand Mondor, 20 M.R. 280 ." . 1040 
 
 Rex V. Carriere, 14 M.R. 52 
 Followed : Rex v. Douglas, 16 M.R. 345 295 
 
' CASES AFFIRMED, FOLLOWED, ETC. 23 
 
 Column 
 of Digest. 
 
 Rex V. Gage, 18 M.R. 175 
 Followed : Shragge v. Weidman, 20 M.R. 178 177 
 
 Rex V. Guertin, 19 M.R. 33 
 Followed : Rex v. Speed, 20 M.R. 33 282 
 
 Rex V. Nunn, 15 M.R. 288 
 Followed : Watts v. Drysdale, 17 M.R. 15 28 
 
 Rex V. Ridehaugh, 14 M.R. 434 
 Followed : Rex v. Barnes, 21 M.R. 357 , 299 
 
 Rex V. Young, 14 M.R. 58 
 Followed : Rex v. Osberg, 15 M.R. 147 284 
 
 Reynolds v. Ashby, [1904] A.C. 466 
 Followed : Andrews v. Brown, 19 M.R. 4 454 
 
 Richelieu Election, Re, 21 S.C.R. 168 
 
 Followed : Re Cypress Election, 8 M.R. 581 370 
 
 Re Maedonald, 17 C.L.T. Occ. N. 159 372 
 
 Considered and distinguished : Re Brandon City Election, 9 
 
 M.R. 511 : 372 
 
 Richelieu Case, Re, 27 S.C.R. 201 
 
 Distinguished : In Re Provencher Dominion Election, 13 M.R. 
 
 444 371 
 
 Rigby «. Reidle, 9 M.R. 139 
 Followed : First National Bank v. Curry, 20 M.R. 247 594 
 
 Ripstein v. British Canadian, 7 M.R. 119 
 
 Followed : Turner v. Tymchorak, 17 M.R. 687 578 
 
 Ritz V. Schmidt, 13 M.R. 419 
 
 Reversed : 31 S.C.R. 602 1136 
 
 Roberts v. Hartley, 14 M.R. 284 
 Distinguished : Logan v. Rea, 14 M.R. 543 479 
 
 Robinson v. C. N. R., 19 M.R. 300 
 Affirmed : 43 S.C.R. 387, [1911] A.C. 739 1003 
 
 Robinson v. MoUett, L.R. 7 H.L. 802 
 Distinguished : Murphy v. Butler, 18 M.R. Ill 932 
 
 Robinson v. Mann, 31 S.C.R. 484 
 Followed : Knechtel Co. v. Ideal House Furnishers, 19 MtR, 652. 98 
 
 Rockwood, &c., Agricultural Society, Re, 12 M.R. 655 
 Distinguished : Stobart v. Forbes, 13 M.R. 184 155 
 
 Rogers v. Commercial Union (Dictum of Killam, J.), 10 M.R. 675 
 Followed : Johannesson v. Galbraith, 16 M.R. 138 54 
 
24 OASES AFFIRMED, FOLLOWED, ETC. 
 
 Column 
 of Digest. 
 
 Rose V. Peterkin, 13 S.C.R. 677 
 Followed : Winters v. McKinstry, 14 M.R. 294 730 
 
 Ross V. Goodier, 5 W.L.R. 593 
 Approved : Otto v. Gonnery, 16 M.R. 532 514 
 
 Ross V. Moon, 17 M.R. 24 - 
 Followed r Fensom v. Bulman, 17 M.R. 307 208 
 
 Ross V. Van Etten, 7 M.R. 598 
 
 Followed : Merchants Bank v. Carley, 8 M.R. 258 415 
 
 Roy V. C. P. R., [1902] A.C. 220 
 Referred to : Barrett v. C. P. R., 16 M.R. 549 1004 
 
 Royal City Planing Mills Co. v. Woods 
 Followed : French v. Martin, 13 C.L.T. Occ. N. 159 40 
 
 Royal Electric Co. v. Heve, 32 S.C.R. 462 
 
 Followed : Hinman v. Winnipeg Elec. St, Ry. Co., 16 M.R. 16. 789 
 
 Russell V. Russell, [1897] A.C. 395 
 
 Followed : A. v. A., 15 M.R. 483 19 
 
 Rustin V. Fairchild, 17 M.R. 194 
 Reversed : 39 S.C.R. 274 ; 218 
 
 Rutherford v. Mitchell, 15 M.R. 390 
 
 Referred to : Campbell v. Imperial Loan Co., 18 M.R. 144. . . . 725 
 
 Ryan v. Clarkson, 17 S.C.R, 251 
 Followed : Thordarson v. Jones, 18 M.R. 223 57 
 
 Ryan v. Whelan, 6 M.R. 565 
 Affirmed : 20 S.C.R. 65 1076 
 
 Ryan v. Whelan, 20 S.C.R. 65 
 
 Followed : Hardy v. Desjarlais, 8 M.R. 550 527 
 
 Alloway v. St. Andrews, .16 M.R. 255 1076 
 
 Considered : Ruddell v. Georgeson, 9 M.R. 407 1068 
 
 Sadler v. G. W. Ry., [1896] A.C. 450 
 Followed : Martel v. Mitchell, 16 M.R. 266 819 
 
 Saults V. Eaket, 11 M.R. 597 
 Distinguished : Jones v. Green, 14 M.R. 61 205 
 
 Sawyer v. Baskerville, 10 M.R. 652 
 
 Followed : Parent v. Bourbonniere,13 M.R. 173 1196 
 
 Sawyer & Massey Co. v. Ritchie, 43 S.C.R. 614 
 
 Followed : Sawyer & Massey Co. v. Ferguson, 20 M.R. 451 .... 221 
 Referred to : Clark v. Waterloo Man. Co. 20 M.R. 289 1062 
 
CASES AFFIRMED, FOLLOWED, ETC. 25 
 
 Column 
 of Digest. 
 
 Schwartz v. Winkler, 13 M.R. 505 
 
 Followed : Gunn v. Vinegratsky, 20 M.R. 311 497 
 
 Scott V. Imperial Loan Co., 11 M.R. 190 
 Followed : Hatch v. Oakland, 19 M.R. 692 652 
 
 Shaw V. C. P. R., 5 M.R. 334 
 Appeal quashed : 16 S.C.R. 703 851 
 
 Shaw V. Foster, L.R. 5 H.L. 350 
 Followed : Hartt v. Wishard Langan Co., Ltd., 18 M.R. 376 .. . 
 
 Shillinglaw v. WhiUier, 19 M.R. 149 
 
 Fol.owed : Campbell v. Joyce, 15 W.L.R. 29 291 
 
 Davis V. Wright, 21 M.R. 716 : . . . . 1220 
 
 Shoal Lake, Re, 20 M.R. 36 
 Dissented from : Wallace v. Fleming, 20 M.R. 705 741 
 
 Shondra v. Wumipeg Elec. Ry. Co., 21 M.R. 622 
 
 A new trial was held and a verdict given for plaintiff for $750. 
 On appeal the verdict was upheld and afiirmed in Supreme 
 Court 776 
 
 Shoolbred v. Clarke, 17 S.C.R. 265 
 Followed : Orton v. Brett, 12 M.R. 448 . 897 
 
 Shragge v. Weidman, 20 M.R. 178 
 Reversed : Judgment of Mathers, C.J. K.B. restored, 46 S.C.R. 1 177 
 
 Sinclair v. Mulligan, 3 M.R. 481 
 In appeal : 5 M.R. 17 181 
 
 Sinclair v. Mulligan, 5 M.R. 17 
 
 Referred to : Templeton v. Stewart, 9 M.R. 487 1165 
 
 Sinclair v. Preston, 13 M.R. 228 
 
 Affirmed : 31 S.C.R. 408 213 
 
 Sirdar Gurdyal Singh y. Rajah of Faridkote, [1894] A.C. 670 
 
 Referred to : Emperor of Russia v. Proskouriakoff, 18 M.R. 56 595 
 
 Slingsby Manufacturing Co. v. Geller, 17 M.R. 120 
 
 Appeal to Supreme Court by defendant Rosenthal, dismissed . . . 824 
 
 Smith V. Baker, [1891] A.C. 335 
 
 Followed : Isbister v. Dominion Fish Co., 19 M.R. 430 782 
 
 Makarsky v. C. P. R., 15 M.R. 53 1262 
 
 Referred to: Dixon v. Winnipeg Elec. St. Ry. Co., 11 M.R. 528 1259 
 
 Distinguishied : Lawrence v. Kelly, 19 M.R. 359 779 
 
26 CASES AFFIRMED, FOLLOWED, ETC/ 
 
 Column 
 of Digest. 
 Smith V. National Trust Co., 20 M.R. 522 
 
 Affirmed : 45 S.C.R. 618 722 
 
 Leave to appeal to the Privy Council refused, 46 S.C.R. vii 
 
 Smith V. Smyth, 9 M.R. 569 , 
 Followed : Douglas v. Cross, 12 M.R. 534 35 
 
 Smurthwaite v. Hannay, [1894] A.C. 501 
 
 Followed : Bank of Nova Scotia v. Booth, 19 M.R. 394 462 
 
 Snider v. Webster, 20 M.R. 562 
 
 Affirmed : ,45 S.C.R. 296 1214 
 
 Distinguished : Johnson v. Henry, 21 M.R. 347 1201 
 
 Societe Canadienne-Francaise v. Daveluy, 20 S.C.R. 449 
 
 Followed : Montgomery v. Mitchell, 18 M.R. 37 169 
 
 South Wales Miners' Fed. v. Glamorgan Coal Co., [1905] A.C. 239 
 Followed : Cotter v. Osborne, 18 M.R. 471 1169 
 
 Springdale v. C. P. R., 14 M.R. 382 
 
 Reversed^ and action dismissed with costs : 35 S.C.R. 550 .... 120 
 
 Sproule, Re, 12 S.C.R. 141 
 Followed : Rex v. McEwen, 17 M.R. 477 309 
 
 St. Andrews Election, Re, 4 M.R. 514 
 
 Commented on : Re Brandon City Election, 8 M.R. 505 366 
 
 St. John V. Christie, 21 S.C.R. 1 
 Distinguished : Iveson v. Winnipeg, 16 M.R. 352 757 
 
 St. John V. Rykert, 10 S.C.R. 278 
 Followed : Manitoba & N. W. Loan Co. v. Barker, 8 M.R. 296. . 720 
 
 Stanbro, Re, 1 M.R. 325 
 Followed : Re Royston, 18 M.R. 539 432 , 
 
 Stanstead Election Case, 20 S.C.R. 12 
 Followed : Re St.. Boniface Election, 8 M.R. 474 371 
 
 Stark V. Stephenson, 7 M.R. 381 
 Followed : Shaw v. Bailey, 17 M.R. 97 1206 
 
 Steele v. Pritchard, 17 M.R. 226 . 
 An appeal was taken to the Supreme Court, but the suit was 
 
 subsequently settled 
 Followed : Rosen v. Lindsay, 17 M.R. 251 701 
 
 Stephens v. McArthur, 6 M.R. 496 
 
 Reversed : 19 S.C.R. 446 501 
 
CASES AFFIRMED, FOLLOWED, ETC. 27 
 
 Column 
 of Digest. 
 
 Stephens v. McArthur, 19 S.C.R. 446 . 
 
 Followed : Bertrand v. Parkes, 8 M.R. 175 491 
 
 Fisher v. Brock, 8 M.R. 137 ^02 
 
 Roe V. Massey Manufacturing Co., 8 M.R. 126 503 
 
 Codville V. Fraser, 14 M.R. 12 : 494 
 
 Referred to : Colquhoun v. Seagram, 11 M.R. 339 498 
 
 Stephens v. Rogers, 6 M.R. 298 
 Distinguished : • Blake v. Manitoba Milling Co., 8 M.R. 427 ... . 260 
 
 Stewart v. Richard, 3 M.R. 610 
 Distinguished : London & Can. Loan & Agency Co. v. Morris 
 
 7 M.R. 128 1152 
 
 Street v. C. P. R., 18 M.R. 334 
 Appeal quashed. 
 
 Streimer v. Merchants Bank, 9 M.R. 546 
 Referred to : Slingerland v. Massey Manufacturing Co., 10 
 
 M.R. 21 536 
 
 Tait V. C.P.R. 16 M.R. 391 
 Followed : Winnipeg Oil Co. v. C.N.R., 21 M.R. 274 '. 990 
 
 Taylor v. Cummings, 27 S.C.R. 592 
 Distinguished : Roberts v. Hartley, 14 M.R. 284 , 479 
 
 Theo Noel Co. v. Vita Ore Co., 17 M.R. 319 
 
 Followed : MacLean v. Kingdon Printing Co., 18 M.R. 274 ... 841 
 
 Thompson v. Equity Fire Ins. Co., [1910] A.C. 592, reversing 41 
 S.C.R. 491 
 Followed :' Patterson v. Central Capada Ins. Co., 20 M.R. 295 . 451 
 
 Todd V. Union Bank, 6 M.R. 457 
 Followed : Rosenberg v. Tymchorak, 18 M.R. 319 253 
 
 Toussaint v. Thompson, 3 M.R. 504 
 Affirmed : 4 M.R. 499 546 
 
 Toronto Railway t;. King, [1908] A.C. 260 
 Followed : Wood v. C. P. R., 20 M.R. 92 .■ 785 
 
 Turnbull v. Duval, [1902] A.C. 434 
 Followed : Canada Furniture Co. v. Stephenson, 19 M.R. 618 .. 940 
 
 Turner v. Francis, 10 M.R. 340 
 
 Affirmed : 25 S.C.R. 10 628 
 
 Union Bank v. Dominion Bank, 17 M.R. 68 
 Affirmed : 40 S.C.R. 366 ". 95 
 
 Union Colliery Co. v. A.-G. of British Columbia, 27 S.C.R. 637 
 Followed : Re The Liquor Act, 13 M.R. 323 43 
 
28 CASES AFFIRMED, FOLLOWED, ETC. 
 
 / Column 
 
 of Digest. 
 
 Vanderlip v. Petersen, 16 M.R. 341 
 Followe4 : Bergman v. Cbdke, 22 M.R. 435 
 
 Vivian, Re, 14 M.R. 153 
 
 Not followed : In Re Houghton and Argyle, 14 M.R. 526 967 
 
 Vivian v. Scoble, 1 M.R. 125 
 Followed : McLaren v. McMillan, 16 M.R. 604 216 
 
 Vulcan Iron v. Rapid City, 9 M.R. 577 
 Overruled : Andrews v. Brown, 19 M.R. 4 454 
 
 Wald V. Winnipeg Electric Ry. Co., 18 M.R. 134 
 Affirmed : 41 S.C.R. 431 792 
 
 Walsh V. North-West Electric Co., 11 M.R. 629 
 Reversed, and the judgment of Taylor, C. J., restored : 
 
 29 S.C.R. 33 158 
 
 Waterous Engine Works Co. v. Henry, 2 M.R. 169 
 
 Overruled : Andrews- v. Brown, 19 M.R. 4 454 
 
 Waterous Engine Works Co. v. Palmerston, 21 S.C.R. 556 
 Followed : Ponton v. Winnipeg, 17 M.R. 496 745 
 
 Waterous Engine Works Co. v. Wilson, 11 M.R. 287 
 
 Followed : Gaar Scott v. Ottoson, 21 M.R. 462 228 
 
 Distinguished : Abell Engine Co. v. Harms, 16 M.R. 546 279 
 
 ' Referred to : Kirchhoffer v. Clement, 11 M.R. 460 133 
 
 Watson V. Harvey, 10 M.R. 641 
 
 Referred to : Wells v. McCarthy, 10 M.R. 639 94 
 
 Watson V. Lillico, 6 M.R. 59 
 
 Followed : Re Landsborough, 21 M.R. 708 957 
 
 Watson Manufacturing Co. v. Sample, 12 M.R. 373 
 Followed : Abell Engine Co. v. McGuu-e, 13 M.R. 454 197 
 
 Webster v. Foley, 21 S.C.R. 580 
 Referred to : Dixon v. :\^innipeg Electric Ry. Co., 11 M.R. 528 1259 
 
 Westbourne Cattle Co. v. M. & N. W. Ry. Co., 6 M.R. 553 
 
 Followed : Ferris v. C. P. R., 9 M.R. 501 986 
 
 Western Assurance Co. v. Temple, 31 S.C.R. 373 
 Followed : Whitla v. Rpyal Ins. Co., 14 M.R. 90 450 
 
 Whelan v. Ryan, 20 S.C.R. 65 
 See Ryan v. Whelan 1076 
 
 Whitla V. Manitoba Ass. Co., 14 M.R. 90 
 Reversed : 34 S.C.R. 191 ■ 450 
 
CASES IRMED, FOLLOWED, ETC. ' 29 
 
 Column 
 of Digest. 
 
 WHtla V. Riverview, 19 M.R. 746 
 
 Distinguished : Dalziel v. Homeseekers' Land Co., 20 M.R. 736 1191 
 
 Whitla V. Royal Ins. Co., 14 M.R. 90 
 
 Reversed : 34 S.C.R. 191 460 
 
 Whitman Fish Co. v. Winnipeg Fish Co., 17 M.R. 620 
 
 Reversed : 41 S.C.R. 453 1060 
 
 Williams v. Bayley, L.R. 1 H.L. 200 
 Followed : Laferriere v. Cadieux, 11 M.R. 175 349 
 
 Williams v. Box, 19 M.R. 560 
 Reversed : 44 S.C.R. 1. Leave to appeal to the Privy Council 
 
 refused 717 
 
 Followed : Noble v. Campbell, 21 M.R. 597 716 
 
 Winnipeg Case, 27 S.C.R. 201 
 
 Distinguished : In Re Provencher Dominion Election, 13 M.R. 444 371 
 
 Winnipeg v. Brock, 20 M.R. 669 
 Affirmed : 45 S.C.R. 271 747 
 
 Winnipeg v. C. P. R., 12 M.R. 581 
 
 Reversed : 30 S.C.R. 558 771 
 
 Winnipeg v. Winnipeg Electric Ry. Co., 20 M.R. 337 
 Appeal of defendants allowed ; cross appeal of plaintiffs dis- 
 missed and action dismissed : [1912] A.C. 355 164 
 
 Winnipeg St. Ry. Co. v Winnipeg Elec. St. Ry. Co. 9 M.R. 219 
 Affirmed : [1894] A.C. 615.. 1144 
 
 Wishart i). Brandon, 4 M.R. 453 
 
 Referred to : Garbutt v. Winnipeg, 18 M.R. 345 783 
 
 Wishart v. McManus, 1 M.R. 213 
 
 Followed : Velie v. Rutherford, 8 M.R. 168 675 
 
 Wolf i;. Tait, 4 M.R. 59 
 
 Followed : Aikins v. Allan, 14 M.R. 549 923 
 
 ' Brydges v. Clement, 14 M.R. 588 924 
 
 Wilkes V. Maxwell, 14 M.R. 599 921 
 
 Distinguished : Calloway v. Stobart, 14 M.R. 650 926 
 
 Wood V. C. P. R., 29 M.R. 92 
 
 Reversed : Decision of Perdue, J. A., at the trial directing a 
 
 verdict to be entered for defendants, upheld : 47 S.C.R. 403 785 
 Leave to appeal to Privy Council in forma pauperis refused : 45 
 
 S.C.R. vii : 
 
30 • CASES AFFIRMED, FOLLOWED, ETC. 
 
 £:,'-,?;■■ '"' Column 
 
 of Digest. 
 
 WooUacott V. Winnipeg Electric Street Ry. Co., 10 M.R. 482 
 
 , .Followed : ;Bergm,aii'2'-'Smitl\j 11 M.R. 364 600 
 
 Distinguished : Griffiths v. Winnipeg Electric Ry. Co., 16 M.R. 
 
 512 604 
 
 Wrayton v. Naylor, 24 S.C.R. 295 
 
 Referred to : Hairttw. Wishard Langan Co., Ltd., 18 M.R. 376 1200 
 
 Wyld V. Livingston, 9 M.R. 109 
 
 Overruled : Canada Settlers' Loan Co. v. Fullerton, 9 M.R. 327 1150