Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016960084 Cornell University Library KEN7523.A3 1873 The equity decisions of the Hon. John W 3 1924 016 960 084 rSWELL & Publishers of the "Canadian Law Times." LAW BOOK PUBLISHERS, IMPORTERS £& $ 2& 6$M(etede/ <©%. Murray et al 311 Bligh v. Kenny et al 344 Bond v. Hutchinson et al 443 Brown v. Pearman 491 Caffrey v. Cameron et al 370 Cape Breton Company, Limited, v. Dodd et al 326 Cape Breton Company, Limited, o. Gisborne 240 Chipman v. Gavaza 26, 28 Christ Church, Dartmouth, In re 465 City of Halifax v. City Railway Company 319 Cogswell v. Graham 30 Cook v. Davidson et el 37 Corbett v. Corbett 40 Creighton v. Merchants' Bank of Halifax 437 Daley v. Farrell 232 Daniel et al. v. Veith et al 46 Diocesan Synod of N. S. v. O'Brien^ al 352 Doherty et al. v. Power et al 419 Douglas et al. v. Hawes et al 147 Eaton v. Weatherbe 48 Fawson v. Noonan 377 Ford v. Miles et al 323 Forrest v. Muir et al 57 VI LIST OF CASES. PAGE Fraaer v. Adams et al 23IS Fraser & Paint. In re 68 > 525 Godet v. LeBlanc 75 Grant r. Wheeler et al 388 Gregory*. Canada Improvement Company et al 358 Griffin et al. v. Taylor 427 Halifax Yacht Club, In re 475 Hamilton v. Hamilton et al 78 Harvie v. Wylde et al 515 Henderson v. Comeau 87 Higginst;. McLachlan 441 Hogan v. Hogan 334 Hunter v. Peoples' Bank et al 91 Johnson et al. v. Parr 98 Kaulback v. Taylor et al 400 Kinnear v. Silver 101 Kinney v. Ryersen et al 488 Knolan v. Dunn et al 504 Knowlan v. Dunn 410 Lawson et al. v. Belloni 107 Lawson v. Tobin Ill Longworth etal. n. Merchants' Bank of Halifax et al 255 Lordly v. Yeomans 113 Ljnch v. O'Brien 396 Marshall v. Steel 116 Mason et al. v. Shedd et al 478 Mathers v. Stayner el al 451 McDougall et al. v. HaweB etal 146 McKay v. Sutherland et al 332 McKeen v. McKay 121 McKenzie v. Aetna Insurance Company 346 McKinnon v. McDougall 342 McLellan v. Fnlmore 453 McNeil v. Beaton et al 144 Meagher v. Queen's Insurance Company 327 Metzler v. Spencer et al 511 Milner v. Ringwood 123 Misener v. Gaston 125 Montgomery, Tn re 154 Moody etal. v. Bank of N. S. etal 129 Moreno. Shelburne Lumber Company et al 134 Mosher v. Miller 279 Mott v. Burns 135 Murdoch v. Windsor & Annapolis Railway Company 137 Murray v. McDonald et al ]42 Newcomb v Simmonds et al 484 Nova Scotia Salt Co. v. Halifax & Cape Breton Railway and Coal Co 265 333 Oakes et al. v. Ryerson et al ; 487 O'Mullen v. Johnstone, In re 157 Patterson et al. v. Archibald et al 3X3 Perley et al. v. Snow et al 373 Queen The v. Cutler et al I59 LIST OF CASES. Vll PAOS Raymond tt al. v. Richards 423 Robinson et al. v. Hendry 330 Roop, Re Estate of 162 Saunders v. Holdsworth et al , 411 Sherlock ti. McLellan 165 Sibley v. Chiskolm et al 167 Silver v. Silver 169 Smithers et al. v. Smithers 483 Spinney v. Pugsley 398 Steel Company of Canada, Limited, v. Vance et al 428 Stephens v. Twining et al 176 Stephens et al. «. Wier et al 173 Stewart et al. v. Boak et al 467 Thomson v. Longard 181 Tremain et al. v. Macintosh et al 447 Troop v. Bonnett et al 186 Troop ». Mosier etal 189 Tucker which, it is alleged, was paid to him, but no release given. The suit was commenced by Durney, but he having become solvent) Bell, his assignee under the Insolvent Act, intervened, .and by the order of the Court became plaintiff in his stead. It appears that the mortgage was given on or about the 28th May, 1853, to secure the payment of £250 in two years and six months, with interest, as the same was expressed and made payable by three promissory notes, one of which was payable in one year, one in two years, and the remaining one in two and a half years. On the first of June, 1854, according to Durney's evidence, he paid £115, being the amount, of the first note, and the interest on the three. On the 28th May, 1855, he paid £109 EQUITY. 21 being the amount of the second note, and interest on that and the remaining note ; and on the 28th November, 1855, he paid the amount of the last note and interest, £51 10s. These pay- ments were all entered by Durney at the time, and the book containing them was produced at the hearing. The notes were delivered up to Durney by Jennings, but no release was asked for or given. Jennings died several years ago, but during his lifetime he never treated the mortgage as a subsisting and unsatisfied security, by calling for principal or interest, and after his death, though the defendants were aware of the existence of the instrument, which was among his papers, they never called upon Durney for payments, nor inserted it in the inventory of the estate, nor otherwise treated it as an asset, but had the estate finally settled and distributed under a decree of the Court of Probate, without any reference to it. Application was made to the defendants, as executors of Jennings, for a release, and a release was tendered to them for execution, with an offer to furnish them with proof of the pay- ment. This application was refused, and in their answer they say that they do not think they would be warranted, or had the legal or equitable power to release the mortgage ; but on behalf of themselves and all others interested in the estate of Jennings, they submit to the Court, and will abide and carry out any instructions, decision, or decree which may be made herein. Though the defendants have appeared and answered, they have taken no further part in the suit, neither they nor their solicitor or counsel having attended the examination before the master, nor did any one appear on their behalf at the hearing. Considering the time which has elapsed, both before and since the death of Jennings, during which the mortgage was allowed to remain a dead letter, and the fact that the notes referred to in the instrument were not to be found among the papers of the deceased, the executors ought, when called upon for the release, to have been satisfied with the evidence of payment offered to them, especially as the estate had then been finally settled by a decree of the Probate Court. I cannot but regard as very unsatisfactory the statement in the defendants' 22 BELL v. BROWN et al. answer, that it was an unintentional oversight that they did not place the amount of the mortgage in the inventory of the estate, nor call upon Durney for payment, nor include it in their final account on the settlement of the estate in the Court of Probate. If the amount of this mortgage appeared on the books of Jennings as a debt due by Durney, and the instrument was found, as they say it was, among his papers, so as to lead to the inference that it was an outstanding and subsisting secu- rity, the ignoring of its existence by the executors can, I think, be considered in no other light than negligence, for which they would be accountable to the heirs if it was, in fact, a subsist- ing security for a debt actually due to the estate. The evidence of Durney corroborated, as I think it is, leaves no doubt on my mind but that the money due on the mortgage was paid as it fell due, and that on the 28th November, 1855, when the last payment was made, Durney was entitled to a release. Though no counsel appeared for the defendant at the hear-" ing, and no defence was then made, or objection taken, some doubt existed in my mind whether Durney was a competent witness, as having been originally a party to the suit ; but whatever doubt existed on that subject has been removed, and I am of opinion that no valid objection could have been taken to his testimony. There is no provision in any English statute similar to ours on this point, and we cannot therefore look for authorities on the subject in that quarter, but in the State of Massachusetts they have ; and in their statute which makes parties in civil actions and proceedings competent witnesses, there is a pro- vision that when one of the parties to a contract or cause of action is dead, the other party shall not be permitted to testify in his own favor. In Jones v. Wolcott, 15 Gray 541, the action was commenced by a party who subsequently became insol- vent, when Jones, as his assignee, was admitted to prosecute. The Judge, in giving his decision, remarked : " Interest in the event of the suit does not operate as a disqualification. The witness was not a party to this suit ; although it was originally commenced by him, yet upon his becoming insolvent, the pre- EQUITY. 23 sent plaintiff was admitted to prosecute the action in his own name, " (for the benefit of his creditors,)" and consequently the insolvent was no longer a party." The view there taken is, I think, sound ; the facts in that case and the one before me are identical, and the provisions are in effect the same. These defendants, whether intentionally or from uninten- tional oversight, have allowed upwards of twenty years to elapse without any payment having in the meantime been made on account of the mortgage, or any acknowledgment made by the mortgagor, and during that time have taken no proceedings to enforce payment by foreclosure or otherwise. It is too late now to make it available, as a valid and subsisting security, to the estate, and by granting the release, the right of no persons can be injuriously affected, and I think the plain- tiff is entitled to a decree requiring the defendants to execute the release which has been tendered to them. The plaintiff has asked for costs against the defendants, but although I cannot approve in all respects of the course pursued by them, I am not disposed to make them liable to costs, act- ing as they are on behalf of others, especially as they have done nothing in the conduct of the defence, nor raised any objections calculated to increase the expense of the litigation, but have merely left the plaintiff to the proof of his case. BIGELOW v. BLAIKLOCK. Defendant, a mortgagor, claimed a re-sale of premises sold by the Sheriff under foreclosure process and bought in by the plaintiff (the mortgagee,) on the ground of a misunderstanding at the sale, arising out of the fact that the properties were described differently in the advertisement, from the way in which they were des- cribed in the mortgage and writ. In the latter documents only three parcels were enumerated, two on the peninsula and one on Queen street ; in the adver- tisement they were described as four lots, the Queen street property being divided into two lots, each separately described, so that when purchasers were told that the last lot was excluded from the sale they would naturally infer that the whole Queen street lot was excluded, and there was clear evidence that such an under- standing had prejudicially affected the sale. Held, that the defendant was entitled to a re-sale, and that the fact of plaintiff- 24 BIGELOW v. BLAIKLO-CK. having, after the purchase, agreed to sell one of the lots, did not affect that right, as he had obtained no deed, and the Bale had not been confirmed by the Court* Ritchie, E. J., delivered the judgment of the Court : — On the sale of the mortgaged premises, forclosed in this suit, the plaintiff became the purchaser of certain portions, and this application is for a re-sale, on the ground that a misunderstand- ing existed at the Sheriffs sale as to what portions of the mortgaged premises were set up. It is obvious that a misunderstanding did exist, and it pro- bably arose from the course pursued on the part of the plaintiff in having the several parcels described differently in the advertisement from the way they were described in the mort- gage and in the writ. In the latter documents three parcels only are enumerated, two on the_ peninsula of Halifax, and one on Queen Street, in the City of Halifax ; while in the advertisement, under which the Sheriff sold, they are described as four lots, the lot on Queen Street being divided into two and each separately described, so that those conversant with the mortgage and the writ, or who might have searched the registry of deeds in relation to the title, would very naturally infer, when told that the last lot was excluded from the sale, that the two lots on the peninsula alone were set up together ; and they would the more readily be led to this inference from the fact that the premises on Queen Street were wholly uncon- nected with and far apart from them. And I cannot help saying that setting up together different properties of a different character in different localities was calculated injuriously to affect the sale by destroying competition. The effect of such a course would be to throw the property into the hands of a plaintiff at a low price, or otherwise to occasion a sacrifice, as few. persons would be likely to desire to purchase both classes of properties, while many might desire to compete for them separately. I am convinced no owner of property would pursue .such a course who desired to obtain the best price for his land. * Although the same result might follow if a stranger, possessed of the same knowledge, had been the purchaser, yet there is a distinction between the plain- tiff in the suit and a stranger; and the Court did not wish it to be inferred that where the plaintiff himself had bid, and the amount of principal, interest and costs was tendered to him before the deed was given and the sale confirmed, he would not be required to take it and give up the purchase. EQUITY. 25 I assume that the Sheriff did, as he states he did, put up the three first mentioned lots, — that is the two peninsula lots and a part of the lot on Queen Street, — yet, I think, he could not have pointed this out quite clearly to the bidders, as, with the exception of the plaintiff, under whose instructions it was so sold, all persons interested in the sale or who bid or had any intention of bidding, believed and acted on the belief that the lots on the peninsula alone were set up for sale ; and Alexr. Forsyth, one ._of those present, who gave the bid before the last bid of the plaintiff, of $3,260, says, in his affidavit, that his bid was $3,250, and that if the property had been knocked down to him he would have expected to have received a deed of the two peninsula lots only ; and he goes on to say that, if he had supposed that the lot in Queen Street had been included, he would have bid as high as the amount due on the mortgage. Under these circumstances, the plaintiff himself having been the purchaser, it would be most unjust to refuse a re-sale. The plaintiff filed his bill to obtain the amount due on his mortgage, and the sale was ordered to effect that object, and if that object is attained he has no reason to complain that he has not, in addition to the payment of the amount due him on the mortgage, made a profit by a sacrifice of the mortgagor's property. As to the plaintiff having agreed to sell one of the lots, I take no account of it. He had no right to do so, as he had ob- tained no deed, and the sale had not been confirmed by the Court as required by its practice ; and I must assume that he or his solicitor was aware of the alleged misunderstanding, and the protest against the sale, made to the Sheriff at the sale or immediately after. As regards this protest, referred to in the affidavits in support of this motion, the Sheriff, the plaintiff and his attorney are all silent. I think it would have been better if some reference had been made to it in their affidavits. There must be a re-sale. Though I have in this case ordered a re-sale on the grounds I have stated, the plaintiff being the purchaser, and under similar circumstances the result might have been the same if a stranger, possessed of the same knowledge, had been the pur- 26 CHIPMAN v. GAVAZA et al. chaser, yet there is a manifest distinction between the plaintiff in a suit and a stranger ; and I do not wish it to be inferred from what I have said, that in a case where the plaintiff him- self has bid on the mortgaged property, and the amount of principal, interest and costs is tendered to him before the deed is given and the sale confirmed, he would not be required to take it and give up the purchase. This point, however, is not before me at present. CHIPMAN, Executor, v. GAVAZA et al. The practice of the Supreme Court on the common law side, in relation to setting aside verdicts and granting new trials, is peculiarly applicable to the trial of issues in Equity, on circuit, and a party dissatisfied with a verdict in an equity suit, tried on circuit, should apply to the Judge before whom it was tried for a rule nisi, or, in the event of his refusing a rule, should take it out under the statute, and cannot, having ignored that practice, move the Equity Court at Hali- fax to set aside the verdict. Ritchie, E. J., now, (Oct. 8th, 1877,) delivered the judgment of the Court : — This suit was brought at Annapolis, and the issues were tried there by a Jury at the last Spring circuit, before Mr. Justice Wilkins. All the issues were found in favour of the plaintiff, and no application was then made to set aside the verdict, but some time after a motion was made with that object in the Equity Court at Halifax, on the ground of the improper reception of evidence, and that the evidence adduced did not warrant the findings. The question now raised is, whether that motion can be sus- tained in this Court, and ought not to have been made at Annapolis during the sitting of the Court there, to the Judge before whom the case was tried, and a rule nisi obtained from him, or, in case of his refusal to grant one, a rule taken under the Statute, (the 212th Sec. of the Com. Law. Practice Act,) on his giving security to respond the judgment to be finally given, and specifying the objections raised to the verdict. EQUITY. 27 It is quite clear that if this had been an action at common law, and no motion had been made to the Judge who tried it during the sitting of the Court, no application could afterwards be made to set aside the verdict on the ground that evidence had been improperly received or rejected, or that it was insuf- ficient to sustain the finding of the Jury. But it is contended on the part of the defendant that this Court is not guided by the same rules and practice, with regard to granting new trials> which prevail at common law. There is a distinction made in the statute regulating the procedure in equity, between suits brought in Halifax and those brought in the country. In the former they are to be tried by the Judge, unless he shall direct issues to be submitted to a Jury ; in the latter they are to be tried by a Jury, unless the part' ;s otherwise agree, or the Judge otherwise order, and the c^ase is entered with the other causes for trial on the circuit docket. In Halifax the trial of issues takes place before the Judge in Equity himself, and there are no statutory direc- tions as to the course to be pursued in applying to set aside a verdict and obtain a new trial. But this is not the case in respect to trials in country causes ; the enactments of the statute clearly indicate the course to be pursued, and point out that the same practice is to prevail as in actions at common law. The 31st Sec. of the Equity Act provides that country causes shall continue to be tried before a Jury, to whom issues of fact shall be submitted ; and the next section provides that when the verdict on such issues shall determine all the matters in dispute and further directions are not required, and a rule nisi for a new trial shall not be obtained from the Judge or taken under the statute, (that is under the Com. Law Practice Act,) final judgment may forthwith be entered on the verdict as the Judge who tried the issues may direct; and the following section enacts that the rule nisi for new trial in such cases shall be returned before the Judge in Equity. It is quite clear to me that the Legislature intended that a party dissatisfied with a verdict in an Equity suit, tried on circuit, should, on applying for a new trial, adopt the common law practice, and apply in the first instance to the Judge before whom the cause was tried. If the contention of the 28 CHIPMAN v. GAVAZA et al. defendants' counsel is sustained, all the statutory provisions I have referred to are ignored, and a party dissatisfied with a verdict is left at liberty to pass by the Judge who heard the evidence, and subsequently apply to the Equity Court at Halifax, without having given any security whatever. I do not see that the course to be pursued could have been more clearly indicated than it is by the statute, and the defendants in this case, having disregarded its provisions, cannot afterwards move this Court to set aside the verdict. I may add that the 7th section of the Equity Act has a bearing on the ques- tion, which enacts that in all cases now conducted in this Court, the practice of the Supreme Court then or thereafter to be established, as far as it is applicable, shall be observed, except in so far as altered or modified by statute or by rules, and the practice of the Supreme Court on the common law side, in relation to setting aside verdicts and granting new trials, is peculiarly applicable to the trial of issues in Equity suits on circuit, and should therefore have been pursued, even without the special statutory directions. CHIPMAN, Executor, v. GAVAZA et al. The original plaintiff died after writ issued and before answer, and the suit was revived by her executor. Defendants, in their answer, did not call in ques- tion the death of the original plaintiff, or the appointment of the present plain- tiff as her executor, and raised no objection to his not being the proper person to revive the suit. But after the issues raised by their answer were found against them, the objection was taken at the hearing that other parties should have been before the Court as plaintiffs. Held, that the objection should have been raised by demurrer or plea, or defend- ants should have insisted on it in their answer, and that, although such an object- ion might be taken at the hearing, if it were made to appear that the rights of other parties not before the Court would be prejudiced by the decree sought for, yet, if the Court could make a decree which would do justice to all parties, it would not allow the objection then to prevail. Ritchie, E. J., now, (October 15, 1877,) delivered the judg- ment of the Court : — EQUITY. 29 Mrs. Levery Chipman was the sole plaintiff when the writ issued, the prayer of which was that the defendants might he declared to he trustees for her of the real estate in question, and that they should he decreed to convey it absolutely to her. After the issue of the writ, and before answer, she died, and the suit was revived by Edward W. Chipman, her son, who suggested her death, and his appointment as the executor of her last will and testament. The defendants, in their answer, did not call in question the death of Levery Chipman, or the appointment of Edward W. Chipman as her executor, and raised no objection as to his not being the proper person to revive the suit ; but they denied that the property was held by them in trust for Mr. Chipman, and claimed to hold it as their own property. Issues bearing on this question alone were raised and sub- mitted to a jury — that is, whether the property had been pur- chased for Levery Chipman and paid for with her money, and conveyed to Thomas Gavaza, to be held in trust for her, or had been purchased by Gavaza on his own account and paid for out of his own funds, and it was not till after these issues had been all found against the defendants that the objection was raised at the hearing that other parties should have been before the Court as plaintiffs, viz., other children of Levery Chipman. If the defendants desired to object to the want of parties, they should have raised the objections by demurrer or plea, or should have insisted upon it in their answer. It is true that such an objection may be taken at the hearing, if it is made to appear that the rights of other parties, not before the Court, will be prejudiced by the decree sought for. In such a case the Court itself will require them to be made parties at any stage of the proceedings ; but if the Court can make a decree which will do entire justice to all parties, and not prejudice the rights of any, it will not allow the objection then to prevail. This can be done in the present case, and the interests of all parties can be fully protected, if indeed there are anyjother persons interested in the subject matter of the suit, which at present has not been made to appear; and it was for the defend- ants, if they wished to raise the objection, to show that there 30 COGSWELL v. GRAHAM. were other parties interested in the controversy, otherwise than under the will of Mr. Chipman, of which the present plaintiff is the executor. If this had been made distinctly to appear, such parties would have been called in ; the Court is now called upon to act on a mere surmise. The decree will be in accordance with the findings of the jury, that the defendants, at the time of the issuing of the writ, were trustees of the property, and held it in trust for Levery Chipman, in her lifetime, and that they do forthwith convey it to Edward W. Chipman, to be held by him in trust for such person or persons as shall be entitled thereto, under the last will and testament of Levery Chipman, or as her heirs-at-law, if undisposed of by her will, — the terms of the deed to be settled by the Court. COGSWELL v. GRAHAM. Mitchell, who had been the owner of three lots upon whioh the plaintiff held mortgages foreclosed in the present suit, conveyed one of the lots, known as the Chebucto Foundry lot, to Montgomery and Budd, by deed registered in 1866. In 1871, Budd became insolvent, and his assignee conveyed his interest in the lot to Montgomery, by deed registered in 1871, after which, in October, 1872, a mort- gage was made by Montgomery to Stairs, which was recorded in November, 1872. Previous to Budd's failure, Montgomery and Budd had entered into an agreement with Mitchell, reciting that plaintiff held mortgages on certain property of Mitchell, on which there was due $16,000, that Montgomery and Budd had purchased part of said property, and as part of the consideration therefor agreed to as- sume the said mortgages and relieve Mitchell therefrom, and the instrument contained covenants to indemnify Mitchell, his heirs, &c, from all actions which might arise in consequence of the said mortgages covering more land than that purchased from him, or in consequence of the bonds given with the said mort- gages. This agreement was registered, previously to the mortgage to Stairs, but was unknown to him and to W^lde, Hart & Co., who were interested with him in the mortgage, until after the mortgage was recorded. The Master, reporting as to the disposal of the surplus proceeds, treated Stairs as the first encumbrancer, after the plaintiff, on the property over which his mortgage extended, and exception was taken to the report on the ground that effect had not been given to the agreement registered previously. Held, that,— although Montgomery, if he had not given the mortgage, and those claiming under him with a knowledge of the existenoe of the agreement when they took conveyance from him, would have been deprived of any right to EQUITY. 31 the surplus funds, — the agreement in question was not an instrument, the regis- tration of which was contemplated by the Registry Act, and therefore the regis- tration of it could not be deemed to be notice of its existence and contents to a party claiming under a deed or mortgage for valuable consideration, and that Stairs and those claiming^ with him, not having reoeived actual or constructive notice of its existence when the mortgage was taken, were to be considered as bonafl.de mortgagees, unaffected by it. Ritchie, E. J., delivered the judgment of the Court : — An application having been made for the surplus proceeds of the sale of lands under foreclosure in this suit, it was refer- red to Mr. William Twining, a Master of this Court, to report on the respective priorities of the subsequent incumbrancers or parties claiming the amount paid to the Accountant- General in this , cause, after payment of the plaintiff's claim and costs, and what they are severally entitled to receive thereout ; who reported that the mortgaged premises foreclosed in this suit, and sold under the order of this Court, consisted of three lots of land, one known as the "Chebucto Foundry and Brewery," near Freshwater Bridge, on the western side of Pleasant Street, in the City of Halifax, and the other two situate nearly opposite, on the eastern side of that street ; that the lots were sold separately, the first- mentioned lot having produced $18,200.00, and the two other lots having produced $3,200.00, making in all the sum of $21,400.00, and that there remained a surplus of $3,96437. after paying the plaintiff the amount of her mortgage and costs ; that the next encumbrance on the first-mentioned lot, (" The Chebucto Foundry and Brewery Property,") was a mortgage made by William Montgomery to John Stairs for the sum of $16,000 ; and the next encumbrance on the two other lots was a mort- gage made by Thomas Mitchell to Robert Davis for $8,000.00; which was afterwards assigned to David Sterling. The Master further reported that the amount paid to the plaintiff on account of the mortgages foreclosed in this cause should be charged against the properties situate respectively on the eastern and western sides of Pleasant Street, in the pro- portion that the amounts respectively produced by the sales of the lots on the western and eastern sides of the said street bear to the whole amount of the said sale, — i. e., the western pro- 32 COGSWELL v. GRAHAM. perfcy to be charged with $14,828.63, and the eastern properties with $2,607, thus leaving a balance on the sale of the " Che- bucto Foundry and Brewery Property" of $3,371.37, and a balance on the sale of the other two lots of $593; and he reported that John Stairs, as the first encumbrancer of the former property after the mortgages of the plaintiff foreclosed in this cause, was entitled to the said sum of $3,371.37, and that David Sterling, as the first encumbrancer upon the two other properties, was entitled to the said sum of $593. Assuming that no other facts were in proof before the Mas- ter, all parties would be prepared to acquiesce in the correct- ness of the conclusion at which he has arrived, and no exception would have been taken to the report ; but it appears from the evidence taken before him and returned to the Court, that the mortgages foreclosed in this cause were made by Thomas Mitchell, the then owner of the three lots, who sub- sequently sold the " Chebucto Foundry and Brewery " lot to William Montgomery and Thomas G. Budd, by deed, dated the 9th August, 1866, which was registered on the 23rd of the same month. Thomas G. Budd, having become insolvent, his assignee, John H. Harvey, conveyed all his estate and interest in the said lot to William Montgomery, by deed, dated 27th January, 1871, which was registered on the 20th February, 1871, after which the mortgage by William Montgomery to John Stairs, above referred to, was made, bearing date the 30th October, 1872, which was recorded on the 4th of November following ; but previous to this date and before Budd's failure, an agree- ment had been entered into between Montgomery and Budd of the one part, and Mitchell of the other, whereby, after reciting that the plaintiff held mortgages on certain property of Mitchell, on which there was due $16,000, and that Budd and Montgomery had purchased a portion of the said pro- perty from Mitchell, and as part of the consideration therefor, had agreed to assume the said mortgages, and relieve him and the remainder of the said property from the payment thereof it was agreed between the said parties that a previous agree- ment entered in between them on the 9th of August, 1866, with reference to the purchase of said land, should be cancell- EQUITY. 33 ed ; and Budd and Montgomery for themselves, their heirs, executors, or administrators thereby covenanted, promised, and agreed, to and with Mitchell, his heirs, executors, and adminis- trators, that they would assume the said mortgages, and pay off the same within seven years, with all subsequent interest accruing thereon, and save and keep harmless and indemnified the said Mitchell, his heirs, executors, and administrators, and his and their lands, tenements, goods, and chattels, of and from all actions, etc., which might arise in consequence of the said mortgages covering more land than that purchased from him, or in consequence of the bonds given by him in connection With the said mortgages. This agreement, though recorded previously to the mort- gage made by Montgomery to Stairs, was unknown to the latter and to Wylde, Hart & Co., who were interested with him in the mortgage, till long after that mortgage was recorded.. The exception taken to the report is, that due effect was not. given to the agreement, which, it is contended,, deprived Stairs of any right to the funds in question. It is quite clear that Montgomery himself, if he had not given the mortgage, would have been debarred, by his agreement, from any claim to them ; and those claiming under him, with a knowledge of its existence when they took the conveyance from him, would have- been equally deprived of any right to them, for one who pur- chases an estate, though for valuable consideration, after notice^ of a prior equitable right, makes himself a mala fide pur- chaser, and will not be enabled, by getting the legal estate, to defeat such prior equitable interest. Lord Haedwicke in LeNeve v. LeNeve, 1 Amb. 436. No actual knowledge existed in this case, nor was there anything which could be deemed constructive notice, unless the registration of the agreement is to be considered such ; but the Courts have held that neither under the English nor Irish Registration Acts is the registry of an instrument con- structive notice to a subsequent purchaser ; but if the instru- ment be such as the law contemplates the registry of, such: registry may bind his title though not his conscience, which actual notice would do. See Wrightson v. Hvdson, 2 Eq.. 3 34 COGSWELL v. GEAHAM. Ab. 498 ; Bedford v. Backhouse, lb., 615 ; Morecock v. Dickens et al., Ami), 680, on the English Act ; and Bushell v. Bushell, 1 Scho. and Lef. 98, and Mill v. Hill, 3 House of Lords cases, 828, on the Irish Act. See also Wiseman v. Westland, 1 Y. and J, 120; Spence's Eq., 762; and Sudgen on Vendors and Purchasers, 730 ; Fisher on Mortgages, 701, &c. On referring to those acts, and to ours on the same subject, it will appear that there is nothing in. the latter to induce a different decision by our Courts; and in New Brunswick regis- tration alone has been held not to amount to notice, the Judges there having recognized the English decisions as binding on them. See Doe e. d. Hubbard v. Power, 1 Allen, 272. By the statute of 7 Anne, Chap. 20, referring to registry in England, it is enacted that a memorial of all deeds and con- veyances, which, after the time therein mentioned, shall be made and executed, and of all wills and devises in writing, whereby any honors, manors, land, etc., in the County of Middlesex, may be in any way affected in Law or Equity, may be registered in such manner as is there directed, and that every such deed or conveyance that shall thereafter be made and executed shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consider- ation, unless such memorial be registered as by the Act directed before the registry of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. By the Irish Registry Act, 6 Anne, Chapter 2, an absolute priority is expressly given to the instrument first registered. In the United States, though it is recognized as the English law that registration of a deed does not amount to construc- tive notice, their Courts have not adopted that view, and they have decided that a deed duly recorded is constructive notice of its existence and contents ; see Story's Eq. Jur., Sec. 401 ; but registration even there is not deemed to be constructive notice if the instrument on record is one which was not required by law to be recorded. -See 2 Wash. Real Property, ( (1st edition,) 592. On referring to our Registry Act, it will be apparent that the ^classes of instruments to be registered under it are particularly EQUITY. 35 specified. The 9th Section enacts that all deeds, judgments and attachments affectingiands shall be registered, &c, and direc- tions are given as to the mode by which these are to be placed on record. Grants, leases and mortgages are mentioned in subsequent sections, but no other instruments are referred to. By the 19th Sec. it is enacted, that deeds or mortgages duly executed, but not registered, shall be void against any subse- quent purchaser or mortgagee for valuable consideration, who shall first register his deed or mortgage ; and the only section in which any general words are used is that to prevent the tacking of mortgages, which provides that no mortgage, judg- ment, or other encumbrance affecting lands shall have any priority or effect, by reason of being held by or vested in the same person with another mortgage or encumbrance of prior amd he alleges that, finding it impossible to obtain the necessary advances from the plaintiff, he was notified that his interest in the adventure must cease unless the funds were forthcoming, and the latter, admitting his inability to furnish them, consented to and did withdraw from the concern. The evidence on the subject is principally contained in written correspondence which took place between the plaintiff and George Hamilton, from the 10th April 1872, to 7th March 1873. George in a letter of the 19th October to the plaintiff, says, " I have paid our assess- ments and I send a memorandum of account. We intend sink- ing another shaft, &c." In a letter of the 24th October, he gives an account of what was doing at the mine, informs him that they had commenced to starta new shaft on the lead and speaks favourably of their prospects ;. and in a postscript he says, " there will be some more assessment on the work now doing before we are able to get a crushing, and as we' intend having a settlement every month, you had better let me know what I am to do as regards your share;. I feel quitei certain we have a big thing, and intend risking- $200 or $30.0 in it before I give- it up. Robert and Alexander,. (i..e., McNaughton and Fraser, the other defendants,) say that they will risk a winter's work, and Robert leaves $100 with me to pay up for him when he' leaves; so you can imagine what confidence they bave in it. McLean told me that the 24.12 all came out of the three barrels, &c." In a letter of the 1st November, George gives plaintiff an account of what was doing, and continues to express a favour- 6. . 82 HAMILTON v. HAMILTON et al. able opinion of their prospects. On the 3rd November plaintiff writes to him, " I am delighted to hear such good news of the lead. I sincerely hope your anticipations of success will be fully realized. Will you kindly put up for me for the present, as the funds have not commenced to come in, and I do not care about drawing on Canada. I shall have considerable in a short time." On the 10th November, George, after describing what had been done, says, " the assessment last month was $19.25 per share ; this did not include timber, $12,40, or haul- ing, $3, which will go into this month's expenses;" and he says, " I enclose Mr. Stairs' bill, which you will please pay, also for my ale; send back account receipted and I will credit the amounts to you against assessment ; (tobacco same.) If our lead gives us 15 dwt. it will pay first rate, and I hope, it will, as this month's work will be a heavy bill and I do not expect we will have many tons when we commence to drive the tunnels. Alexander said last night he would go all his winter's work in it and money besides. How much are you willing to go if it would be required ? and what arrangements are you going to make for the assessments which I have already paid for you, and for others which may come ? for we can hardly ■ expect the lead to pay all the dead work unless it turns out ■extra. I am asking these questions now and I ask you to sanswer them, so that there cannot be any misunderstanding in jthe matter. I've made up my mind to stick to it as long as Alexander does and no longer." On the 20th November he writes plaintiff that they had 20 tons from 9 feet sinking, which -showed gold pretty well, &c. On the 23rd November he Informs him that the 20 tons produced 7 dwts. per ton, and ;adds, " not bad, as more than half was suckers and cross leads; >our next stripping will give a better return &c. ; the assess- ment for the month will be about $40 per share. McLean paid $1.50 which I have given you credit for. I paid Alexander 50 cents for road work, my share, and also your assessment for this month." On the 2nd December the plaintiff writes to his brother ; "Am glad you are getting on so satisfactorily, and I sincerely trust it will turn out fully equal to your expecta tions. I hardly see how I can liquidate those accounts you .requested zueiq, .as Ideally have not the funds on hand; nearly EQUITY. 83 all my sales are at three months, so that I do not get much cash in, and the notes I forward to Wilson. What cash I do receive is barely sufficient to meet current expenses &c, &c, I am very sorry indeed, George, that I cannot gratify your requests." On the 5th December George writes plaintiff, "Your letter I received yesterday, and I beg to tell you that I was very much disappointed in not receiving money from you to settle up your three month's assessment to the Meridian Tribute, and also the bills which I asked you to settle. You will now be kind enough to send same to me so that I may pay them. Your account stands thus : Oct. 18th. — Amount paid Meridian ass't $63.90. Nov. 2nd.— " " '■ " $19.05. Dec. 1st.— " " Twist 3.25. Meridian 35.40. Cr. $121.60 Cash from C. McLean 1.50. Balance due. $120.10. " Let me know at once when you can settle this amount, as I cannot afford to be out of pocket so large an amount. There will be an assessment of probably $25 per share this month, and which you must provide for, as I shall not pay any more for you until the three last assessments are paid. If you do not think it worth the risk which we are now running you had better make your arrangements for same at once. I intend to go pretty heavy into this lead before giving it up, and so does Alexander and Robert. * * * Let me hear from you at once as I must have everything settled before next pay day, 1st January." To this letter the plaintiff replied ; " Yours dated 5th instant reached me last night. I am very sorry indeed that my inability to meet the assessments has caused you any annoy-, ance. I am still unable to remit as you desire, and of course if you desire it, I will retire immediately from the Tribute. * * I will endeavour to be in Goldenville before the first proximo, when we can settle the indebtedness you refer to. In the 84 HAMILTON, v. HAMILTON et al. interim, as I said before, you must use your own judgment in the matter of allowing me to share in the tribute." The correspondence thus far clearly. shews that the plaintiff had failed to produce any funds to meet- his liability as a co-adventurer with the others, and that he was unable to do so, and to my mind as clearly indicates that no agreement had been entered into between the plaintiff and George Hamilton, that the latter would make the necessary advances for him, or was under any 1 obligation to that effect, and up to this time, certainly, there was no attempt made to induce the plaintiff to withdraw by a depreciation of the mine by his brother. So far from any endeavour on his part to deceive him in respect to the undertaking, he urges him to come down at once to the mine that he might be able the better to judge of the prospects of the company. In the letter of the 10th December to plaintiff, he says ; "Your letter I received this morning ; in reply I must tell you I decline to accept the position in which you want to place me, that is, to use my own judgment in regard to your retiring from the tribute. You know your position better than I do, and I would advise you to come down at once, instead of delaying it to thie first, and see the state the mine is in. "We are now taking off lead and by the time you arrive the quartz will be through! " You will then be better able to judge if it is advisable to remain in or' not. * * * If you. can manage to settle up the assessment when you come I shall be better pleased, as I require the money." It appears that the plaintiff 'did not go down as he had proposed to do, and George addressed this letter to him: — " Your non-arrival to settle all indebtedness as you promised in your' last letter, and not having heard from you since in answer to mine, I shall consider you intend withdrawing from the tribute unless the'balance of account is paid on or before the 20th." No communication is received in reply till after the 20th. The plaintiff on the 23nd writes:' " Your staternent came to' hand a few days ago, I am sorry there is' so much owing by me, and I think you hard and severe on your brother by making such peremptory demands to pay up by a certain date or be ejected, but probably you think I have no more claims on your generosity and affection than on the merest EQUITY. 85 stranger. I think the least yon could have done would have been to tell me of the prospects and advise me what to do, as- you are thoroughly acquainted with my circumstances in life. I will see you next month, D. V., as I intend visiting Sher- brooke and Goldenville." It appears to me that when the alternative was given to the plaintiff to pay up the assessment or to retire, the fullest infor- mation had been afforded him by his brother, and so far from depreciating the adventure every letter was encouraging as to its results, and the best evidence that he thought the prospects good was the intimation he gave the plaintiff that he should himself persevere with it. On the 29th January George writes; "Your not having paid up your assessment disbursed by me at the time specified in my. note and memorandum of account sent you the first of the month, I now enclose you the money I have received here for you, and which you paid out in Halifax for me ;" to which on the 4th February, plaintiff replied; "Your letter dated 29th tdt, to hand. Enclosed I found $27.40 for which you will please accept my thanks and this receipt. Though quite unexpected, was most opportune and acceptable. I consider it very honor' able and kind of you." In this letter, though he complains of being ejected from the adventure, he in the course of it says ; " Now that I am no participator with you in the tribute, let your mind rest quiet, and let the- past reqiiiescat in face!' The receipt of this money by the plaintiff, and the terms in which the receipt is acknowledged, accompanied by the state- ment that he is no longer a participator- in the adventure, show clearly that he had found it necessary to abandon his share in it from inability on his part to meet his engagements with his co-adventurers. It was urged at the hearing that, these parties having enter- ed into a partnership, the plaintiff could not be excluded by the others in consequence of his not having paid up the assess- ment required by him. From the evidence/it appears to me, that he withdrew, reluctantly, it is true, but unequivocally, and he certainly was reasonably required to do so, for he had no right to have the mine developed for his benefit at the expense -of others. But' if he had not consented, I think he 86 HAMILTON v. HAMILTON et al. could have been compelled to retire on his failure to produce the funds required from him under his agreement with his co-partners. The distinction between partnerships in relation to the working of mines and trading partnerships is recognized. The former are not held to be founded on the delectus per- sonce, as is the case in ordinary trading partnerships, and the mining partner has a right to transfer or relinquish his share without the consent of his co-partners; Collyer on Partnership, 90 ; and shares may be forfeited by the failure of parties to furnish 'the funds required for prosecuting the undertaking according to agreement, as the non-payment of early calls may be destructive of the whole adventure, to the great loss of those willing to make the payments required of them, and it would be most inequitable for one to leave to the others the whole labor and expense of developing a mine, and when they had thus made the adventure profitable, seek to participate. See Prendergast v. Turton, 1 Yo. & Col. C. C. 98, and Norway v. Rowe, 19 Ves. 143. In Clark et al. v. Hart, 6 H. L. C. 656, Lord Chelmsford said ; " the case of mines has always been considered by a court of Equity as a peculiar one. The property is of a very precarious description, fluctuating continually, sudden emergencies arising which require an instant supply of capital, and in which the faithful performance of engagements is absolutely necessary for the prosperity and even existence of the concern ; and therefore, where parties under these circum- stances stand by and watch the progress of the adventure to see whether it is prosperous or not, determining that they will intervene in case the affairs of the mine turn out prosperous, but determining to hold off if a different state of things should exist, courts of Equity have said that those are parties who are to receive no encouragement, and if they come to this Court for relief its doors will be shut against them." And Lord "Wensleydale, (page 667,) " it appears to me. that the prin- ciple to be deduced from Prendergast v. Turton, and Norway v. Rowe, is that, if a party lies by and by his conduct intimates to the other parties that he has abandoned his share, they may deal with it as they please. I should have been disposed to view this case in a different light, if there was evidence to justify me in coming to the it EQUITY. 87 conclusion that George Hamilton, at the time he refused to make further advances for his brother, had withheld import- ant information in regard to the undertaking, which he then possessed, or had in any way deceived or misled him with a view of excluding him or inducing him to withdraw from it, but I see no evidence to lead to such an inference. The suit must be dismissed with costs. HENDERSON v. COMEATJ. Defendant took a conveyance of land from A. F. LeBlanc in the form of an absolute deed, dated 26th July, 1864, and at the same time executed a bond to re-convey npon re-payment of the consideration money of the deed within two years. At the expiration of that period, defendant asked LeBlanc whether the money would be repaid or he should keep the land, to which LeBlanc replied that he would prefer that defendant should keep the land. The bond was given up to defendant and he took the land, allowing LeBlanc to live on it, but no rent was paid, and neither the principal nor the interest of the money advanced by defendant, who afterwards sold the land for a larger sum than the amount of his advances. LeBlanc afterwards became insolvent, but at the time of his giving up the property he was not indebted to any of the creditors who had claims against him when he went into insolvency. His assignee sought in this action to have the deed decreed to be a mortgage. Decree for defendant with costs. Ritchie, E. J., delivered the judgment of the Court : — The plaintiff, as assignee of Augustus F. LeBlanc under the Insolvent Act of 1869, seeks in this suit that a deed made by the insolvent to the defendant may be decreed by this Court to be and operate as a mortgage security, and not be deemed an absolute conveyance in accordance with its terms, and that the defendant may be held to be a trustee for the creditors of the insolvent for the amount which may be shown to have been received by him beyond the amount due to him on the security of the indenture, the land having been sold by the defendant for a sum greater than that loaned him by the insolvent. It appears from the evidence that the deed, which in its terms is an absolute conveyance from the insolvent to the defendant, was given on the 26th July 1864 — the consideration expressed 88 HENDERSON v. COMEAU. in it is $312,— and at the same time a bond was executed by the defendant to the insolvent in the penal sum of $1200, with a condition therein that, if the insolvent should pay the defend- ant the sum of $312 with interest in two years from the date thereof, then the defendant should return the deed that day executed by the insolvent and the obligation should be void, otherwise to remain in full force. The consideration money mentioned in the deed was paid and the deed was delivered to the defendant, and the bond, after having been executed by him, was left with Anselm Comeau, who had prepared the papers and was the subscribing witness to the bond. The insolvent, who is the only witness produced on the part of the plaintiff, says that, being indebted to Messrs. Heustis & Moulton of Yarmouth in the sum of $140 or $150, and to Urbane Doucette in the sum of $40 or there- abouts, the defendant at his request paid those debts in addition to the $312 mentioned in the deed. It appeared sub- sequently that the first mentioned debt amounted to $172.79 and the second to $49.80. He goes on to say that some time after the expiration of the two years he had a conversation with the defendant, who asked him if he intended to pay him. He said he could not, and that defendant could take the place and do with it what he pleased ; the defendant said he could 1 live on it provided he paid some rent. He never did pay rent but at the request of defendant, he kept up the place and the . fences, &c./and this he understood he was to do for the rent. He occupied the place four years. After he gave up the place Peter LeBlanc had the crops two years from the defendant He further says that after he left the place he told the defend- ant to get the bond from Anselm Comeau and do what he liked with it, and he never saw it till he saw it handed by Peter J. Godet to Philip Comeau in the Court House and by him hand- ed to Mr. Chesley. The insolvent also said that he considered the $312 received from the defendant and the debts paid for him by the defendant as much as the place was worth ; if he could have got any more for it he would himself have sold it and paid the defendant ; that when he gave the place up he was not indebted to any of the creditors who afterwards had claims against him when he went into insolvency ; that he EQUITY. 89 never paid defendant anything either, for principal or interest or rent, and he does not know of defendant ever getting any- thing from the place except what he may have got from P. LeBlanc. Godet, the purchaser ' from defendant, says that the first he knew of the existence of the bond was that Philip Comeau, the son of Anselm, who is now dead, gave it to him to deliver to defendant, which he did, and after defendant had given him his deed he gave him also the bond and told him to keep it, which he did, till Philip Comeau asked him for it to show to Mr. Chesley; that he gave it to him thinking he would return it, but Mr. Chesley did not do so. The evidence of the defendant is to the same effect as is that of the insolvent. He says, that in addition to the con- sideration money mentioned in the deed, he paid to Heustis & Moulton, $172 and' some cents for the insolvent, and Urbane Doucette nearly $50; that he left the bond with Anselm Comeau, to be given to LeBlanc, the insolvent, if the money was paid within two years ; that he asked LeBlanc after the expiration of that time, if he intended to pay him the money he had advanced, or must he take the land, who replied that he preferred that the defendant should take the land rather than that he should pay the money. The defend- ant alleges that he thought he should lose by doing so, as the land was not of much value, and he would have preferred receiving the money. They spoke, he said, about the bond, and the insolvent told him to go and get it ; that Godet subse- quently brought the bond to him, and he gave it back to him and told him to keep it. That this Court will treat a transaction as a mortgage, although it was made to bear the appearance of an absolute sale.lif it appears that the parties intended it to be a mortgage, is unquestionable ; but it is equally clear that if the parties intended an absolute sale, a contemporaneous agreement for a re-purchase and re-conveyance, the terms of which have not been carried out, will not entitle the vendor to redeem. In order to ascertain whether such such a transaction is to be deemed a mortgage, we must see whether the rights of the grantor and grantee are reciprocal. There must have been a debt due by the former if a mortgagor, which the latter could 90 HENDERSON v. COMEAU. have sued for, and in the case of a sale of land by him, if it produced more than his debt, he must account for the surplus, so if it had produced less, he would have a right to recover from the mortgagor the balance of his debt. See Goodman v. Orierson, 2 Ba. & Be., 274, and the judgment of Lord Cotten- ham, in Williams v. Owens, 5 My. and Cr., 303, overruling the judgment of Sir Lancelet Shadwell in 10 Sim., 386. In the case before us, LeBlanc conveys to the defendant, by an absolute deed, certain ' lands. He takes no acknowledgment from the vendor to indicate the existence of a debt, or create an obligation to pay back the amount received by him, but he himself executes a bond, conditioned to return the deed, that is, to re-convey the land, if LeBlanc shall pay the amount of the consideration money mentioned in the deed in two years. This bond is not delivered to the obligee, but is placed in the hands of a third person, to be held by him till the expiration of the two years, and then to be delivered to LeBlanc, if he shall have paid the money, and to be returned to defendant if he shall have failed to do so. He did fail to do so, and the bond was re-delivered to the defendant with his assent. There is no conflicting evidence in the case, and this explicit agree- ment has been carried out by the parties to the letter, and in its spirit, and to the mutual satisfaction of both parties, — and this where no rights of creditors or third persons were involv- ed. Both parties seem to have acted with entire good faith, and before LeBlanc had become insolvent he had recognized the defendant as the. absolute owner of the property under the legal title which he had given him, and had authorized him to receive from Comeau the bond which had been deposited with him on which alone he could have founded any claim against him. If after what thus took place between the parties, LeBlanc on the one hand had insisted on the defendant accounting to him for any profits which he might make on a subsequent sale of the land, or on the other hand, if the defendant had insisted on having any deficiency made good to him by LeBlanc, in either case the claim would be made in violation of good faith and of the agreement which existed between them. The legal title to the land in question being vested in the EQUITY. 91 defendant and LeBlanc having abandoned all claim, legal or equitable, and recognized the defendant's title previous to his becoming insolvent, nothing passed to his assignee under his assignment under the Insolvent Act, for he had nothing to assign, and there is no pretence for saying that anything was done by either of the parties in violation of the provisions of that act. I cannot think that the plaintiff has exercised a sound dis- cretion in instituting this suit. The evidence he himself pro- duced would have deprived him of any right to recover, independently of that produced on the part of the defendant, and, if he had not evidence which would very clearly have established his elaim, it was not the interest of the creditors to enter into a contest when the amount was so small in case the suit were successful: The defendant in that case would beyond question be entitled to receive out of the proceeds of the sale of the land all his advances to LeBlanc with interest up to the time of the sale to Godet. These advances with interest amount to $762, less the amount received from Peter LeBlanc, $100, leaving a balance of $662, the amount received from Godet for the land being $700, thus leaving but $38, to be further reduced by any expenses there may have been con- nected with the sale and conveyance. The decree will be for the defendant with costs. CHAELES D. HUNTER, Trustee, &c. v. THE PEOPLE'S BANK OF HALIFAX & RHINDRESS, Assignee of Donald Matheson, Insolvent. G. E. Bisset, by his will, bequeathed to his daughter Maria Matheson £2000 "for herself and her children, issue of her marriage, now or hereafter living, to be exempt from any debts or liabilities of her husband, Donald Matheson, should he from accident or misfortune hereafter become embarrassed, with ipower in his executors to invest the same at her desire in good securities with interest for her and her children's benefit," subject' to a deduction of £870 due the testator by Donald Matheson. The plaintiff, together with Matheson, testator's widow, and another were appointed executors. Testator died in 1861, there being at that time and at the time of the making of the will, children of his daughter living, but the 92 HUNTER, Trustee, v. PEOPLE'S BANK et al. estate was not settled until September 1871, when Matheson deposited in the People's Bank $6000, being the balance of the bequest due his wife after deduct- ing the amount due by him to the estate, with interest to the date of the deposit. In the same month he made an assignment under the Insolvent Act of 1869. During the ten intervening years the amount had been used by him in his busi- ness, and for his family, though without the knowledge or sanction of his wife, and entries were made by him from time to time in accounts rendered to the widow (who with himself chiefly managed the business of the estate,) of sums received as interest on his wife's legacy, amounting in all to the whole interest that would be due thereon. This was not authorized by his wife; but she did not object to it, or apply for the interest herself. Defendant Rhindress, as assignee, having claimed the fund deposited in the People's Bank. Held, that the children took an interest under the will, but that independently of their interest, as there was no evidence that Mrs. Matheson had sanctioned the use of the money by her husband, plaintiff, as trustee for her and her children, was entitled to an amount equal to the balance of the legacy after deducting the debt due by Matheson, but that the assignee was entitled to the amount deposited for interest thereon, as the Court must presume the acquiescence of the wife in the husband's receipt of the interest from year to year in the absence of very clear evidence to the contrary. Ritchie, E. J., delivered the judgment of the Court : — The will of the late George E. Bissett contained among others the following bequest : " I bequeath to my beloved daughter, Maria Matheson, £2000 currency, for herself and her children, issue of her marriage, now Or hereafter living, to be exempt from any debts or liability of her husband, Donald Matheson, should he from accident or misfortune hereafter become embarrassed in his affairs, with power in my executors to invest the same at her desire in good securities, with inter- est, for her and her children's benefit, subject to a deduction of the sum of £870 or thereabouts now due to me by her husband, Donald Matheson, should he not think proper to re-pay the same to my executors within twelve months; and should he not repay the said debt, I hereby direct that my executors shall give him a release of the same, on being deducted from the above £2000." The testator also bequeathed £200 to Donald Matheson. This sum he has received, and the debt due by him to the estate was never paid, Donald Matheson, the Revd. Peter G. McGregor, the plaintiff, and Mrs. Bissett, the widow of testator, were appointed executors of Mr. Bissett's will, and all of them EQUITY. 93 took probate of it. The testator died 31st March, 1861, and then and at the time of the making of the will there were several children born and living, the issue of Mrs. Matheson's marriage with her husband, Donald Matheson. At the hearing, the question raised before me was whether the sum of $6000, deposited in the People's Bank of Halifax, was the property of Maria Matheson and her children, as con- tended for by the plaintiff, who was their trustee, and claimed on their behalf, or that of the creditors of Donald Matheson, on whose behalf it was claimed by John Rhindress, his assignee under the Insolvent Act of 1869. .. This $6000 was paid into the Bank as the balance of the £2000 legacy ,to Mrs. Matheson, after deducting the debt due by her husband to the estate, and interest thereon from the death of testator till the deposit was made, about ten years. On the part of the creditors of Donald Matheson, it was contended that the whole legacy having in fact been received and spent by Donald Matheson, his wife could have no claim on this sum, her husband being authorized by law to receive and appropriate it, and that even if he were not entitled to the principal, no claim now could be made for interest, as he had, from year to year, from 1861 to 1870, credited the estate, on account of his wife, with various sums which he had received, amounting in all to the interest on the balance of her legacy after deducting his debt. Mr. Rigby's contention was that the bequest to Mrs. Mathe- son for herself and her children would, if the subject of it had been real estate, have given an estate in special tail, and being personal, she took the legacy absolutely independent of any right in her children ; and even if it should be held that the bequest was to her separate use, which her husband would not have been entitled to claim, the employment of the money by him in his business and for his family, with the knowledge of his wife, would: amount to a gift to him ; but he contended tjiat unti^ hW, husband's insolvency or' embarrassment, Mrs. Matheson's rights were the same as if the amount had simply been bequeathed to her, which he could receive and use as he had done, and that only on his becoming embarrassed in his 94 HUNTER, Trustee, v. PEOPLE'S BANK et al. business was the legacjs, or what then remained unpaid, to be placed out of the reach of his creditors, if she so desired. I cannot adopt this view of the case. The objects of the testator's bounty were the children of his daughter as well as herself, and they took an interest under the will, and he clear- ly indicated that he intended that the amount bequeathed should be protected from the husband's creditors for the benefit of both, in case at any time he should become insolvent. Wild's case, 6 Rep. 17, was much relied on for the defendant, but that case turned on the fact that at the time of the devise there were no children in existence to take under it, which is not so here. In Roper v. Roper, L. R., 3 C. P., 35, Kelly C. B. said, " If the words of this will had devised the estate in question to Mary Roper and her children, and she had two or more children in existence at the date of the will, we might have been compelled to hold that they gave a joint tenancy to the mother and her children." And again, "the rule of con- struction, now commonly called the rule in Wild's case, is to this effect, — where lands are devised to a person and his child- ren and he has no child at the time of the devise the parent takes an estate tail, for it is said the intent of the devise is manifest and certain, that the children or issue should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not the devisor's intent, for the gift is im- mediate, and therefore such words shall be taken as words of limitation." See also V. Ch. Malins' observation on the rule in Grieve v. Grieve, L. R., 4> Eq., 180. In Armstrong v. Armstrong, L. R., 7 Eq., 518, the testator gave all his estate, being personalty or of that nature, to his wife, her heirs, executors, administrators, and assigns, absolute- ly for ever, &c, for the benefit of herself and her children ; he left a wife and six children. The question arose after the mother's death and James, V. C, held that the children took under the will as joint tenants. He said that, " though it was not necessary to determine whether it was a gift to the wife for life with remainder to the children, or a gift to the wife and children equally, the strong inclination of his opinion was in favour of the former view." In Newill v. Nevrill, L. R., 12 EQUITY. 95 Eq., 432, a testator gave all his real and: personal estate to his wife for the use and benefit of herself and all his children, "whether born of his former wife, or such as might be born of his then present wife. V. Ch. Malins, in his judgment, after referring to numerous cases of this class, expressed his opinion that the current of authorities now ran in the direction which effectuates the intention of the testator, viz., that, when a man gives to his wife, for the benefit of herself and her children, he does not mean to put her on a mere equality with her children, but that she is to take for life, with remainder to her children. These cases clearly indicate, that in such a bequest as this, the children take an interest under the will, and the attempt on the part of the husband's creditors to obtain possession of the whole corpus, if successful, would frustrate the testator's intention with regard to them. But independent of the interest of the children in the fund as regards the principal sum, I see no evidence that Mrs. Matheson sanctioned the use of it by her husband in his business or in the support of the family, or indeed that she knew of its being so used, and she may have supposed that it was secure in the hands of the ex- ecutors. I think therefore that she is entitled to have that amount paid to the plaintiff, as the trustee of herself and her children, out of the amount now in the bank. But, as the sum there includes interest as well as principal, the question remains whether she is entitled to have the whole amount paid to her. The testator died in 1861, and the estate was not settled in the Court of Probate till September, 1871, when the money was paid into the Bank, in which month Donald Matheson made his assignment under the Insolvent Act of 1869. If therefore any of that money belonged to him, it passed to Rhindress, his assignee. It appears from the evidence of Matheson and the accounts produced by him, which were the same he had exhib- ited at the Probate Court, that payments had been made from time to time to all the legatees, and, though no entry appeared of any payment to Mrs. Matheson on account of the principal sum, the following sums were charged against her by Matheson in his account with the executors, which'he had received from the assets of the estate, viz : — £25. £67 15- 5. £160 7 11. £125- -16- , 6. £46 14 5. £250- - 0- 0. 3. 96 HUNTER, Trustee, v. PEOPLFS BANK et al. Cash 1863, Dec. 31 1864, Apl. 5 " Dec. 31 1865, " " , 1870, " " making in all the sum of £675 14 The principal sum was £1148-3-3, being £2000 currency, less £851 16 - 9, that being the amount to be deducted on account of Donald Matheson's debt. The interest on this principal sum for ten years would be about the amount received by Matheson; The accounts in which these sums appeared as received by him for his wife were rendered by him yearly to Mrs. Bissett, the widow, who with him principally managed the business of the estate, Mr McGregor and the plaintiff taking little part in it. Mr. Matheson, however, states that he had no authority or consent from his wife for what he did ; but though she may not have given any direct authority or consent to his receiv- ing the money, it is not pretended that she dissented or objected or made herself any application for the interest during those years. The inference is, I think, inevitable that she knew he received it. At any rate under these circumstances the. court will presume the acquiescence of the wife in the husband's receipt from year to year. Lewvn, on Trusts, 3rd Ed'n., 643. "If the husband receives' the wife's income, though there was a clause xagainst anticipation, and the wife. survives, it is clear that she, or her personal representatives cannot claim against his estate more than one year's arrears, but it is still sub judice whether even so much can be claimed." After referring to several authorities, the author goes on ; " the principle upon which the relief is thus, limited is, that the Court presumes acquiescence of the wife ,in the husband's receipt de anno in annum. If therefore the wife did not in fact consent, but remonstrated and required that the separate income should be paid to herself, which was promised, the Court will carry back the account of arrears to ( the time of the wife's assertion of her claim. But the Court requires very clear evidence that the demand was seriously pressed by the wife and will not charge the husband's estate from any idle complaints against its EQUITY. 97 receipt which she may have occasionally made. See also to the same effect, Hill on Trustees, 612, 641. [See Lib. Ed., 666.] And it is to be borne in mind that the testator indicated no intention or desire that the income should be protected for Mrs. Matheson's separate use as against her husband, but only that she and her children should be protected in the enjoyment of the bequest as against his creditors. As regards the indenture of assignment made by Donald Matheson to his co-executors referred to in the answer of the defendant and in the replication of the plaintiff, and produced by Matheson in his evidence, it is not necessary for me to say more than that it can only be deemed a security to the estate for the amount due by him as contended for by the plaintiff, and not as an investment of the fund to be secured for Mrs. Matheson in accordance with the terms of the will, to which she could alone have recourse for her legacy. The recitals shew that Matheson had received funds of the estate which he was unable to refund so as to secure the legacy to his wife and children according to the will of her father, otherwise than as therein mentioned, and he then proceeded to convey to them certain real estates therein described and his personal property, apparently all he possessed, to his household furniture, which were to be sold, and out of the proceeds his co-executors were to appropriate enough to satisfy the bequest to his wife and children, and, as far as the same would extend, to discharge the amount for which he was accountable to the estate, to pay the legacies contained in Bissett's will and to pay the balance if any, to him. In the view I have taken of this case the plaintiff is entitled to a decree in his favor for £1148 3 - 3, N. S. currency, with interest upon it* out of the money deposited in the Bank, and the defendant Bhindress is entitled to the balance, and as neither party has succeeded wholly in his contention, the costs of each to be paid out of the portion to which he becomes entitled under the decree. * Presumably from the time the deposit was made. — Re£. 7 98 JOHNSON et al. v. PAKE. JOHNSON et al. v. PARR. The imitation of labels and wrappers whereby the public are misled and the plaintiff injured will be restrained as a fraud upon him, and though an imitation will be deemed colorable if it be such that a careful inspection is required to dis- tinguish it, yet a court will not interfere^jfhen ordinary attention would enable a purchaser to discriminate. It is not enough that a careless, inattentive or illiter- ate purchaser might be deceived by the resemblance. Ritchie, E. J., delivered the Judgment of the Court : — ■ On the argument of the rule nisi to show cause why an in- junction should not issue against defendant to restrain him from using the trade mark or label of the plaintiff, the ques- tion resolved itself into whether the defendant had or had not adopted and used trade-marks or labels similar to that of the plaintiffs, or so closely resembling it as to mislead the public, and to induce persons to purchase the article manufactured and vended by the defendant, supposing it to be that for which the plaintiffs had acquired a reputation in trade. A trade-mark is any sign by which an object of commerce may be distinguished, and the name of a manufacturer or trader written or stamped in a mode peculiar to itself may con- stitute it, but a mere label, as such, composed of words only, is not in itself a trade-mark, though the imitation of labels and wrappers whereby the public are misled and the plaintiff injured, will be restrained as a fraud upon him. In Holloway v. Mollaway, 13 Beav., 209, the plaintiff, Thomas Holloway complained that his brother Henry Hollo- way had commenced selling pills and ointment at No. 210 Strand, under the description of Holloway's Pills and Ointment in boxes and pots, similar to and with labels and wrappers copied from those used by the plaintiff at No. 244 Strand, and he asked for an injunction. The Master of the Rolls held that, while the defendant had a right to sell Holloway's Pills and Ointment, his name being Holloway, he had no right to do so in such a way as to de- ceive the public and make people believe that he was selling the plaintiff's goods. And in Burgess v. Burgess, 17 Jurist, 292, the decision was to the same effect. These cases, and there are others to the same effect, show that a party will be EQUITY. restrained from attempting to deceive the public and lead pur- chasers to believe that they are buying the plaintiff's article though there may not be technically a trade-mark simulated. The case of Wotherspoon et al. v. Currie, L. R., 5 H. L., 508, had reference to the imitation of a label and it was held that the name " Glenfield Starch," which had been adopted by the plaintiffs, who had manufactured a particular article which they designated by that name, could not be usurped by the defend- ant, though in other respects the labels were dissimilar. And in Cocks v. Chandler* the defendant was enjoined because he used the word original Reading Sauce. It was admitted that the only thing to which exception could be taken was the use of that word, as the defendant's wrappers, labels and bottles differ- ed from those of the plaintiff and were wholly unobjectionable. So in Hirst v. Denham, L. R., 14 Equity, 542, where the imita- tion was that of a ticket affixed to cloth of a particular kind manufactured by the plaintiff. Lord Chelmsford, in giving judgment in Holloway v. Hol- loway, said, "where the trade mark is not actually copied^ fraud is a necessary element, that is, the party accused must be proved to have done the act complained of with the fraud- ulent design of passing off his own goods as those of the party entitled to the exclusive use of the trade mark. It is not necessary to shew that there has been the use of a mark in all respects corresponding with that which another person has- acquired an exclusive right to use, if the resemblance be sueb as not only to show an intention to deceive, but alko* such as; to be likely to make unwary purchasers suppose that they were purchasing the article sold by the party entitled to the trade mark." And in Seixo v. Provezende, L.R., I Gh. App., 195, Lord Ceanwoeth said, " if the question turned on the en- quiry whether a person having a cask of the plaintiff's and a cask of the defendant's placed before his eye could mistake the one for the other, there could be no doubt of the result, for they are altogether different. But that is not the question ; the principle on which relief is given in these cases is that one man cannot offer his goods for sale, representing them to be the manufacture of a rival trader. * L. B., 11 Eq., 446. 100 JOHNSON et al. v. PARR. Now in the case before us, any one looking at the labels A and B, referred to in the affidavit of the plaintiff Isaac S. Johnson, and annexed to it, even side by side, would assume them to be identical. It is true that some of the wording is different, but there is much that is exactly alike, especially in what would catch the eye of a casual observer, the form, size, heading and color of the label, the name "Johnson's Anodyne Liniment," the cures to be effected, most of them in the identical order, and three lines copied verbatim. From the similarity between the two, which could not be accidental, I can come to no other conclusion than that the defendant prepared and used this label for the purpose of enabling him to sell his preparation as that known in the trade as "Johnson's Anodyne Liniment," and inducing purchasers to believe that it was such. The defendant does not deny using this label, and he gives no reason for doing so, and shews no justification for using the name of Johnson, or affixing an apparent few simile of the signature of a person of that name. If the article was not prepared by a person of that name, it could only be used to deceive and mislead the public. Having arrived at this conclusion with respect to the label marked B, I cannot but look at the other label annexed to plaintiff's affidavit, marked C, with much suspicion, which also resembles the plaintiff's label in many particulars in general -appearance, and some part of the printed matter is an exact transcript of that in the plaintiff's. But at the same time there -are very material differences between the two, and though an imitation will be deemed colorable if it be such that a care- ful inspection is required to distinguish it, yet a court will not interfere when ordinary attention would enable a purchaser to discriminate. It is not enough that a careless, inattentive or illiterate purchaser might be deceived by the resemblance, but d;he Court would enquire whether a person paying ordinary attention would be likely to be deceived. When " Johnson's .Anodyne Liniment" was used by the defendant, there was a specific article offered for sale which would be asked for -eo nomi/ne, and when the plaintiff's article was so asked for, .the defendant would furnish him with his manufacture so EQUITY. 101 labelled, but it would be otherwise with an article not so designated. I can see no objection to the use of the words, "Anodyne Liniment," by the defendant ; no person could I think have a right to appropriate exclusively to himself such a designation. The plaintiffs assert that the words, " Johnson's American Ano- dyne Liniment," are the essential parts of their mark or label. Now the defendant has in this label of his made a very import- ant alteration, he has omitted from it the veiy important word " Johnson's ", and has affixed his own signature — a fac simile of it — clearly and distinctly, in place of that of Johnson, and has used a wrapper different from that of the plaintiff, the direct- ions in which are dated Yarmouth, and refer to the short time the liniment has been in the market. It is, indeed, somewhat remarkable that while the defendant claims to hold a patent for his preparation by the name of " Parr's North American Anodyne Liniment," in his label he leaves out the word " Parr's," a very material word, if he wished to describe the patented article, and to distinguish his manufacture from that of others, yet I cannot say that this label bears so close a resem- blance to that of the plaintiffs as to make it manifest that the defendant intended to deceive, or that a purchaser of average intelligence would be deceived. An injunction will go to restrain the defendant from the use of the label I have first referred to, and that alone. KINNEAR v. SILVER. Plaintiff brought suit to foreclose a mortgage made by defendant, who alleged in her answer that she had been induced to sign it by the fraud of Thos. S. Fowler. Her testimony as to the imposition alleged to have been practised upon her was contradicted by Fowler, and it was in proof that she had re-executed the instrument in the presence of the clerk of plaintiffs solicitor, who had deferred paying over the money in order to assure himself that defendant under, stood the transaction. There was also evidence that defendant was aware of the nature of the instrument shortly after signing it, and did not repudiate it, but entered into negotiations to obtain security from Fowler who had retained the money advanced on the security of the mortgage. The Court, in view of the 102 KINNEAR v. SILVER. tidence, concluded that defendant when she signed the instrument must have understood its nature, and held that whether she did or did not understand it, she was estopped, as against plaintiff, from saying that she was not aware of its eontents. Ritchie, E. J., delivered the judgment of the Court : — This suit is brought to foreclose a mortgage made by the defendant to the plaintiff for $5000. In her answer the de- fendant does not deny having executed the instrument, but states that when she signed it, she was not aware of its pur- port ; that she never borrowed or authorized the borrowing of the money and never received it ; that she is an aged woman and was not in a fit state bodily or mentally to transact busi- ness, and that not knowing the contents of the instrument, which was not read to her, she was induced to sign it by fraud, deceipt, and misrepresentation of Thos. S. Fowler. It appears from the evidence that Fowler is a relative of the defendant and lived with her at the time the mortgage was signed, that he made an application to Mr. Shannon on her behalf for a loan of $5,000 on mortgage in the month of January, 1872. Mr. Shannon procured the money from the plaintiff and prepared a mortgage and bond which were handed over to Fowler for the purpose of obtaining the defendant's signature. Both of the papers were returned to Mr. Shannon, executed by her, Fowler being the subscribing witness, who then did not give the money to Fowler but re- quested him to call again, and, in the meantime, sent his clerk, Mr. Allison, to the defendant with a note addressed to her to the effect that he had received the papers which she* had executed, and that as he wished to have another witness to them she would oblige him by acknowledging her signature before Mr. Allison. After handing the note to her, Mr. Allison exhibited to her the mortgage, which she looked at and said that the signature to it was hers, and that she understood all about it. Mr. Allison thereupon witnessed the mortgage and returned it to Mr. Shannon. After Fowler had brought the mortgage and bond, executed by defendant, to Mr. Shannon, he told him he required to have the policy of insurance, which was brought to him: with- an en- EQUITY. 103 dorsement on it, signed by the defendant, assigning it to the. plaintiff as mortgagee. Fowler received the $5000, out of which he paid Mr. Shannon his charge for obtaining the money and preparing the papers. This policy having expired, the plaintiff applied to Mr. John Silver, who is admitted by the defendant to have been her general agent, relative to the re- moval of the insurance, who gave him to understand that he did not intend to insure again. But, as the plaintiff insisted, as mortgagee, on having the property insured, Mr. Silver acquiesced and agreed to insure again, and shortly after effected insurance and the policy was sent to the plaintiff, in which it was stipu- lated that in case of loss payment should be made to the plaintiff as mortgagee. This took place in April 1873. Some- time after this the plaintiff called on Mr. Silver and intimated to him, that as the mortgage money was a trust fund, he desired to get seven per cent, interest which the law then allowed to be taken. To this Mr. Silver objected as he thought he could obtain a loan of the money at six per cent. The plaintiff then agreed to take the money. The interest on the mortgage was paid by Fowler who handed the receipts to Mr. Silver as the several payments were made. The first bears date, July 1st, 1872, and is in these words : "Eeceived from Mrs. Diana Silver one hundred and fifty dollars for six months interest on mortgage to this date. T. C. Kin- near, per J. H. Sweet." Two other receipts for the same amount are dated respectively, 31st Dec, 1872 and 1st July, 1873. It was not until some time after these payments had been made that the plaintiff was made aware that the validity of the mort- gage was questioned, though Mr. Silver, who says he is the stepson of the defendant and has attended to her business ever since her husband's death, and had all her business in his hands, knew of the existence of the mortgage in the summer of 1872, knew of the receipts having been left at his office, that the defendant had in her possession a note of Fowler for the $5000, and Fowler had offered him, as defendant's agent, security on certain lands of his as a security to her for the re-payment of the money, which offer he had communicated to the defendant who left the matter in his hands to do as he liked, and that he had applied to Fowler again and again for 104 KINNEAR v. SILVEE. -the necessary documents to enable him to make out the security to the defendant. Yet, notwithstanding all this, he treated with the plaintiff as the holder of a valid mortgage, recognised the payment of interest to him for a period of eighteen months, insured the property at his request and for his benefit as mortgagee, and as late as July 1873, or there- about, while he objected to have the rate of interest increased, gave him to understand that he would pay off the principal and obtain a loan of the money from another source. The existence of the mortgage and its purport and effect were known to the defendant herself, as well as to her business agent, as far back as 1872, that is, three or four months after its execution, if unknown before. For her son, Henry Silver, says that he at that date returned to Halifax, and was then told of the existence of Fowler's note to his mother for the $5000. This his mother showed to him, and he explained the matter to her. The statements of the defendant and Fowler are at variance with each other as to what took place between them previous to and at the time of the execution of the mortgage. The ac- count given by Fowler is that the defendant received his application favorably and agreed to raise money on her pro- perty in Tobin Street; a portion of the loan she wanted for her own use to assist her son Gay, and she authorized him to obtain a loan of $5000, and in consequence he made the application to Mr. Shannon; that after the mortgage and bond were prepared, he took them to her and told her what they were, that one was a mortgage and the other a bond ; he stated the amount, the person who was lending the money, and upon what property it was loaned, and she signed the papers fully understanding their contents ; that Mr. Shannon on his handing him the bond and mortgage asked him for the policy of Insurance ; this he got and wrote the endorsement on it, which the defendant signed, and Mr. Shannon then told him to call the next day for the money. This was about the 22nd, or 23rd January, 1872. Fowler goes on to say that the defendant had in the meantime consented to let him have the whole of the $5000 and he gave her a note for that amount, and in May he first heard of any EQUITY. 105 dissatisfaction on the part of the defendant; that he proposed to give security for the payment of it, and mentioned several properties which he specified, with which she was satisfied, and consented to any arrangements he should make with Mr. John Silver, whom he saw orf the subject; that the security was not given from dilatoriness on his, (Fowler's,) part, and because he had hopes of realizing the amount from some mining properties he owned. The defendant, on the contrary, in her evidence states that she never authorized Fowler to borrow the money from the plaintiff, and never signed a mortgage of her property know- ing it to be such. She remembers his bringing her a paper to sign, and if she put her name to it she must have known what it was ; did not know it was a mortgage, had no idea of mort- gaging her place. In one part of her examination she said Fowler was always asking her for money, — that was the way she came to lend him this ; in another, that he asked her for a loan of money, but was a long while getting about it ; he said he had a quantity of marsh land. She did not receive his proposals favourably, did not agree to raise money on her place, never dreamt of such a thing. She admits Fowler brought her a policy of Insurance to sign, and said something about the plaintiff which she does not recollect ; she did not understand it. Though the defendant is an aged woman, seventy-four years of age, and her memory defective, there is not sufficient evi- dence to lead to the inference that she was so incapable of transacting business as to render her acts invalid, while it is natural to suppose that she would be more liable to be influ- enced by those around than a younger person of more vigorous intellect would be. I am induced, however, to think, on a review of the whole evidence, that she did authorize the borrowing of the money by Fowler, partly on her own account and partly on his, as he has testified, though it is quite possible she may not subsequently have authorized him to retain it. Yet the possession by her of his note for the amount would seem to indicate that she eventually acquiesced in it. Speak- ing of having lost confidence in Fowler, she says she did so when she found he had taken the money and appropriated it 106 KINNEAR v. SILVER. to his own use, and though she says she was induced to sign the mortgage by the fraud and~through the misrepresentation of Fowler, she does not say what he represented to be the contents or the purport or effect of the paper submitted to her by him for her signature. We are n§t to view this case as one between the defendant and Fowler, but between her and one who is an innocent party and has parted with his money on receiving as his security for its re-payment a mortgage unquestionably executed by her. And assuming that there w&s fraud on the part of Fowler, it was the defendant, who by her misplaced confidence in not reading the document or requiring it to be read to her, put it in his power to mislead the plaintiff; for it is a recognized principle that when one of two innocent persons must suffer by the fraud of a third, he must be the sufferer who, by his conduct, has, however innocently, put it in the power of a third person to commit the fraud. On the part of the plaintiff there was no disposition to put especial confidence in Fowler, and therefore his solicitor placed himself in communication with the defendant herself in order to ascertain if the instrument had been duly executed by her, and it was only after she had assured him that it was and that she knew all about it, that the money was advanced. Surely, after this, so far as the plaintiff is concerned, she is estopped from say- ing that she was not aware of its contents; for though in general it is competent for a party to prove that a statement was made under a mistake, yet he is estopped from doing so to the injury of another who has been induced to act upon it. In the present case, however, there was a re-execution of the mortgage in the presence of a subscribing witness and in the absence of the party who is alleged to have misled the defendant. It would be most dangerous in its results to allow a deed to be invalidated under such circumstances as these, and that too, on the sole evidence of the defendant who alleges herself to have been deceived, which is contradicted by that of the party who she alleges has deceived her. But if the defendant really had grounds for impeaching the validity of the mortgage, or thought she had, she was bound to have communicated them to the plaintiff as soon as she dis- EQUITY. 107 covered that a fraud had been practiced upon her, especially in a case like this where the rights of an innocent person are in- volved, so as to enable him, without loss of time, to seek redress, by security or otherwise, from the party through whom he had been misled. So far from doing this, though she and her agent are made aware of all the facts shortly after the making of the mortgage, they not only do not communicate this to the plain- tiff but for a year or upwards they allow him to believe the mortgage to be a valid security, and recognise it as such by their own acts, and themselves negotiate with Fowler for security to the defendant for the amount of the mortgage. It is not necessary in order to render a transaction unimpeach- able, that any positive acts of confirmation should take place ; it is enough if proof can be given of a recognition of its vali- dity and a determination not to impeach it. In every view that I can take of this case it appears to me that the defence has failed, and I therefore think that the plaintiff is entitled to a decree of foreclosure and costs. LAWSON et al. v. BELLONI. Plaintiffs having amended their writ, served it on defendant, with a notice, endorsed, requiring him to answer within fourteen days, otherwise, plaintiffs to be at liberty to sign final judgment by default, and have the writ taken pro con- fesso. Defendant, who had duly put in his answer to the original writ, did not within the time limited in the notice, answer the amendment, and plaintiffs obtained a rule nisi, calling upon him to shew cause why the writ should not be taken pro confesso, etc., before the argument of which rule defendant put in an answer, not denying the statements in the amendment, but leaving the proof of them to the plaintiffs. Held, that the rule nisi must be discharged with costs, defendant having a right to put in his answer at any time before the marking of a default. Eitchie, E. J., delivered the judgment of the Court :— A rule nisi was obtained by the plaintiffs, calling on the defendant to show cause why the writ should not be taken pro confesso, and why the plaintiffs, Henry Lawson, Cathcart Thompson, and John Taylor should not be authorized to sell at 108 LAWSON et al. v. BELLONL public auction all the real and personal properties specified in the writ, which are in fact the subject matter of the suit, and why, out of the proceeds of such sale, after paying the costs of this application and all expenses incident to the sale, they should not pay certain amounts to themselves and other plain- tiffs and the balance to the Accountant General of the Court. Unless there has been a judgment by default or an order obtained for taking the writ pro canfesso, I am at a loss to understand upon what ground an application can be made by the plaintiffs for a sale of the property in dispute and dis- posal of the proceeds in the present stage of the proceedings, which would practically be deciding the case on the allegations of the plaintiffs alone. It appears from the affidavits on which the rule nisi was obtained that the writ was issued on the 19th of May last, to which an answer was put in on the 17th of June ; and on the 12th July the plaintiffs obtained leave to amend their writ, which was done by inserting a statement to the effect that the amount of certain advances made by the plaintiffs and re- ferred to in the writ was still due and unpaid. No answer was put in to this amendment previous to the obtaining of the rule nisi, but, before it came on for argument, an answer was put in, not denying the statement so made but leaving to the plaintiffs the proof of it. No special order of the Court was taken and served on the de- fendant requiring him to answer the amendment within a limit- ed time, but the following notice was endorsed on the amended writ : " Notice is hereby given that if the defendant does not appear and answer within fourteen days from the service here- of, the plaintiffs shall be at liberty to sign final judgment by default and have their writ taken pro confesso." This notice is in accordance with the common law practice, and a notice of a similar character has always been endorsed on writs taken out on the equity side of the Court. The 18th sec. of Cap. 95 of the Revised Statutes, "of Proceedings in Equity," provides that in case of default for want of appearance and answer, the Court may make thereupon such order as the right and justice of the case shall require both as regards the relief prayed for and the costs of the suit. EQUITY. 109 But in this case there has been no judgment by default, and until such a judgment has been entered, agreeably to the notice the defendant is at liberty to file and serve his answer notwithstanding the time for answering may have elapsed. This is done every day at common law, and the 7th sec. of the chapter of the Revised Statutes to which I have referred pro- vides that in this Court the practice of the Supreme Court, that is the Common Law practice, shall be adopted as far as it is applicable, except as altered or modified by statute or by rules made by this Court. In other cases the practice of the Eng- lish Chancery shall be adopted. The course pursued by the plaintiffs in following the com- mon law practice and not that of the English Chancery, was in my opinion quite correct, and following out that practice the defendant had a right to put in his answer at any time before a default had been marked. But supposing the plaintiffs to have been justified in adopt- ing the practice of the Court of Chancery, the application would be irregular, for according to that practice the plaintiffs could not, because the defendant had not within the time limited answered the plaintiffs amendment, apply at once and by the same motion for an order to take the writ pro ccmfesso, and also for an order for the disposal of the subject matter in dispute in the suit. The notice in the first instance should simply be for an order to take the bill pro confesso, of which the defendant should be entitled to notice, and the usual order, when obtained, is to show cause why the bill should not be taken pro confesso, unless in the meantime the defendant shall have put in his answer, and it is only after this order has been made absolute that any motion can be made in regard to the merits of the case based on the assumption that there is no defence. • Where the defendant, as in this case, has substantially answeredthe plaintiffs' writ and has omitted to answer a single statement, not eventually affecting the issues raised in the suit, whether such omission arose from inadvertence, or, as was alleged, from the belief that the statement did not require to be answered, the Court in the exercise of a discretion which it possesses in such cases, would refuse to shut out a party from 110 LAWSON et al. v. BELLONI. his defence to the suit when he had, previously to the argument of the rule nisi, actually answered or was prepared to do so. It was contended on the part of the plaintiffs that the de- fendant should not merely answer the amendment but should have answered the writ de novo, but such is not the case. Daniel in his Chancery Pr. 632, 5 Ed. says : "In answering an amended bill the defendant, if he has answered the original bill, should answer those matters only which have been introduced by the amendments. In fact the answer to an amended bill constitutes together with the answer to the origi- nal bill but one record, in the same manner as an original and an amended bill ; hence it is impertinent to repeat in the answer to the amended bill what appears upon the answer to the original bill, unless by the repetition the defence is materially varied." And again, p. 677, " if a defendant repeats anything contained in a former answer he will be ordered to pay the costs occasioned by the introduction of such impertinent mat- ters." It is quite true, however, that where, after an answer, a bill has been amended and the amendments are not answered and the defendant is in contempt for not answering them an order may be obtained to have the bill taken pro confesso, but according to the English practice, if the plaintiff requires an answer to his amendment he obtains an order on the defendant requiring him to answer. As the plaintiffs in this case have not shewn themselves entitled to the order asked for, either under the practice of the English Chancery or that of the Supreme Courty the rule must be discharged with costs. I wish it, however, to be distinctly understood that the plaintiffs were right in giving notice in accordance with the Supreme Court practice, and if a default had been marked the defendant cquld only have been allowed to answer after having had the default removed, if on his ap- plication the Court should order its removal. I have avoided going into the merits of the case. The intro- duction of them was premature on the motion, which should have been confined to the question as to whether or not the bill should be taken pro cpnfmo, for unless such an order was obtained or a default had been signed the plaintiffs were not in a position to bring them under the consideration of the Court. EQUITY. . in LAWSON v. TOBIN. Hon. James Tobin, by his will, devised land to his executors to their use dur- ing the natural life of his son, Michael Tobin, upon trust, to permit his said son to ocoupy the said premises and receive the rents, after certain deductions, for his own use and benefit, and from and immediately after the decease of his said son Michael, in trust to convey and assure said premises unto the child or children of his said son Michael, living at the time of the decease of his said son Michael, and to their issue. Defendant, a son of said Michael Tobin, mortgaged his interest to plaintiff, and in answer to the writ of foreclosure, set out the above facts, adding that said Michael Tobin was still living, and that some of his children were married and had lawful issue. Held, that defendant, having mortgaged his interest to plaintiff, could not repudiate the transaction, and ask to have the mortgage declared inoperative, while retaining the amount received as consideration for it; and further that plaintiff was not bound to wait until the title of the mortgagor became complete, before foreclosing. Eitchie, E. J., delivered the judgment of the Court : — The plaintiff, in his writ, seeks the foreclosure and sale of all the estate, right, title, and interest of the defendant and his wife, or of either of them, in and to certain real estate therein described, and the defendant in his answer states that the land in question was formerly owned by the Hon. James Tobin, deceased, who by his will devised it, with other lands and premises, to his executors, to their use during the natural life of his son, Michael Tobin, upon the trust to permit his said son to occupy the said premises, and to receive the rents, etc., after deductions for repairs and premiums of insurance, for his own xise and benefit, and from and immediately after the decease of his said son Michael, in trust to convey and assure the said premises, with the appurtenances, unto the child or children of his said son, Michael, living at the time of the decease of his said son, Michael, and to their issue ; that the said Michael Tobin is the father of the defendant, and is still living; that some of the children of the said Michael Tobin, including the defendant, are married, and have lawful issue ; and the defendant alleges that the interest sought to be foreclosed in this suit is not such a mortgageable interest as can or ought to be foreclosed. 112 LAWSON v. TOBIN. I see no difficulty whatever in this case. The defendant has, according to the view taken by his counsel, a contingent remainder in the property mortgaged. This he has conveyed to the plaintiff, in the amplest terms, for a valuable consider- ation, with covenants that he has good title and right to con- vey. Can he now repudiate the transaction so far as to have the mortgage declared inoperative, while he retains the large sum he has received as the consideration for making it ? That such a result would be most unjust to the plaintiff cannot be questioned, and it is in my opinion unquestionable that such a defence as that set up by the defendant can not, as it ought not, to prevail. At one time a contingent remainder was not supposed to be the subjeet of alienation at law, because it was deemed rather a possibility that an estate, like the possibility of an heir at law ; but it has been settled that where the contingency upon which the remainder is to vest, is not in respect of the person, but the event, where the person is ascertained who is to take, the remainder may be granted, and the grantee shall occupy the place of the grantor, with his chance of having the estate. Though at law, a mere expectancy was not assignable, courts of Equity give effect to assignments for valuable consid- eration of possibilities, and even of expectancies of heirs at law. Spence in his Equitable Jurisdiction, Vol. 2, p. 852, after re- ferring to the rule at law, says : " But Courts of Chancery from the earliest times, thought the doctrine on which the Common Law proceeded in these cases, as too absurd for it to adopt. The Court of Chancery, acting upon principles of general jurisprudence, held that a man may bind himself to do any- thing which is not in itself impossible, and that he ought to perform his obligations ; it has given effect to assignments of every kind of future and contingent interest, and possibilities in real and personal property, if made for valuable consider- ation." And on page 896, " a mere expectancy may be the subject of contract for valuable consideration, though whether anything shall be obtained under such contract or not, must, from the nature of the subject-matter, depend upon chance." See 2 Washb. Real Prop., 238, 367 ; Story's Eq., sec. 1040, b. It was suggested at the argument that the right to mort- EQUITY. 113 gage might exist in the defendant, and yet the plaintiffs have no right to foreclose and sell till the title of the mortgagor to the land had become complete ; but if the defendant in this case could have conveyed his right to the property, whatever it was, to the plaintiff, so as to deprive himself of all claim or interest therein by an absolute deed, upon what principle can it be contended that if he does so by Avay of mortgage he has any other right than that reserved to him to redeem on payment of the amount due ? Of course a contingent inteiv est will not in any case produce on a sale as much as a vested and absolute interest, and it might be for the mortgagor's benefit to postpone the sale, but it might have the effect of rendering the mortgagee's security worthless. If the mortga- gor desired to have the right of doing this, he should have stipulated for it when he applied for the loan, in which case it is not improbable the plaintiff would not have advanced his money oh the security. To refuse the plaintiff the right to foreclose and sell, would do a manifest injustice to him, not merely by depriving him of his money, which, by his agreement with the defendant, he is now entitled to receive, but also, by putting in jeopardy 'the whole security, which would become valueless if the defendant should die before the happening of the contingency upon which the vesting of the estate depended. LORDLY, Assignee of Peyob, v. YEOMANS. The Messrs. Pryor, in December 1873, of their own accord, signed and sealed a mortgage, whereby defendant was to be secured from loss on endorsements of their paper; but defendant did not become aware that such a mortgage had been made until some time in 1874, and his information then was not derived from Messrs. Pryor, or any person authorized by them. The mortgage was not recorded until March 20, 1875, when the Messrs. Pryor knew they would have to go into bankruptcy, and on March 22, 1875, they made an assignment under the Insolvent Act of 1869. Held, that the mortgage was void, being made in con- templation of insolvency. 114 LOBDLY, Assignee, v. YEOMANS. Eitchie, E. J., delivered the judgment of the Court : — , The plaintiff seeks to set aside a mortgage, made by the Insolvents to the defendant, as 1 having been made in violation of the Insolvent Act of 1869. The mortgage in question bears date 17th December, 1873, and was recorded 20th March, 1875. The instrument, from the evidence, appears to have been signed and sealed by the Messrs. Pryor at the time of its date, but no intimation was ever given or authorized to be given by them to the defendant of its existence until after it had been put on record, which took place two days before they made their assignment under the Insolvent Act, which was made 22nd March, 1875 ; though he became aware that a mortgage, whereby he was to be secured, had been made by them, in the course of the year 1874, but that information was not communicated to him by a person who was authorized by the Insolvents to do so, and he neither applied for the instrument nor sought from any one information respecting it, which may be accounted for from the implicit confidence which he seems to have had in their solvency up to the time of their assignment. The account which Mr. William Pryor gives of the mortgage is explicit and candid. He says their firm had been in the habit of receiving accommodation from Mr. Yeomans, by indorsements- of their paper for eight or ten years before, and when the mortgage was made in December 1873, they were indebted to him for indorsements on notes matured or then running, and there might have been five or six thousand dollars overdue at that time ; he was on their paper for about eighteen or twenty thousand dollars, but he did not have to take up any of that paper ; it was all taken up or renewed as it became due. Mr. Yeomans, he says, did not ask them to give a mortgage ; he was induced to make it so that he, Yeomans, should be protected if anything went wrong with them ; as he had always been their friend and had helped them he was anxious to secure him, looking at the doubtful state of affairs and business at that time, and if anything unexpected should arise it was right he should be protected, as he had no remuneration what- ever for helping them; business looked pretty bad here at EQUITY. 115 that time; he did not make Mr. Yeomans aware that they had executed the mortgage until their failure, as they had always intended he should be secured, and the" mortgage was in his possession, (witness's,) up to the time it was recorded ; if he had thought there was any necessity for it, he should have recorded it before. When the mortgage was recorded he knew they should have to stop. In his cross-examination, in answer to the question why he did not think it necessary to record it, he replied that from the general view of their business he thought they could get through, and therefore there was no occasion to do so. It is obvious that Mr. Pryor had some fears as to the stability of his firm when the mortgage was made, and though he says he thought they could get on, and had assets to meet their liabilities, at the value he put upon them, it is impossible, I think, in looking at the evidence and statements of accounts, to come to any other conclusion than that at the time the, firm was insolvent, and its assets insufficient to meet its liabi- lities. It matters little, however, as I view this case, whether' the firm was or- was not actually insolvent in December 1873 ;, it was so unquestionably on the 20th March, 1875, and being so, the mortgage is in my opinion void, as having been made in contemplation of insolvency. It is obvious, that if it were- in the power of a merchant, though at the time solvent, to make a mortgage of his property, whereby one of his creditors was secured for existing and accruing liabilities, and retain it in his possession, unknown even to the creditor to be secured, only to be used in case of insolvency, to give him in that event a preference over other creditors, the Insolvent Act could be rendered inoperative. Unless the recording of this mortgage is to be considered a delivery of it to the defendant, there has been no delivery ; and as delivery is essential to give operation to it as a deed, the mortgage had no operation as such till then. In the meantime, Mr. Yeomans had no rights under it, and if the Messrs. Pryor had destroyed it instead of recording it he would have been entitled to no redress. The most favorable view that can be taken for the defendant is that the recording was tantamount to a delivery, in which case we must consider that the conveyance of the property ' 116 MARSHALL v. STEEL. ■was then made, and then he, for the first time, acquired any rights under it. And being so made, it most assuredly was made in contemplation of insolvency, whereby Mr. Yeomans would obtain, what, under the Insolvent Act, is deemed an unjust preference over other creditors. I felt no doubt on the subject at the time of the argument, and only reserved my judgment to look into the authorities Mr. Gray cited, as he seemed impressed with the idea that they bore strongly in favor of the defence, but they are man- ifestly distinguishable from this case. Had the statements in the defendant's answer been substantiated by the evidence they would have had more application. Though Mr. Yeomans is wholly innocent in the transaction and suffers from his good nature in affording gratuitous accom- modation to the Messrs. Pryor, by indorsing their notes, it is obvious that, but for this accommodation, they must have stopped before, perhaps years before they did. The firm was thereby enabled to acquire credit to which its state of affairs did not entitle it, and if a preference were allowed to Mr. Yeomans, by giving effect to this mortgage, it would be at the expense of those who, by this fictitious credit, were led to give property to the firm. It is the policy of the Insolvent Act to deprive debtors of the power of giving such preferences when insolvency is imminent, in order that in the disposal of the assets of an insolvent, all creditors may share alike. MARSHALL v. STEEL. Defendant, in March 22, 1861, conveyed to J. J. Marshall certain real estate, ■by an instrument in the form of an absolute deed, but which defendant contended was given as a mortgage to-secure a debt due Marshall. On January 1, 1861, .Marshall signed a memorandum acknowledging the receipt of £78 - 18 - 4 from defendant on account of the property, " leaving a balance of £171 - 12 - 11— " which when paid to me, and the interest thereon, I bind myself to reconvey the '• said property, &c.;" and there were other memoranda showing that Marshall had treated the conveyance as a mortgage. In January, 1868, defendant having continued in possession of the land ever since the execution of the conveyance, became the tenant of Marshall under a lease then enteiied into. After the death EQUITY. 117 of J. J. Marshall, plaintiff, claiming under his Trill, brought an action of eject- ment against the defendant. Held, (an equitable plea having been pleaded), that the conveyance from defendant -was a mortgage, and that the relation of mort- gagor and mortgagee was not altered by the fact of the lease being made in 1868. Ritchie, E. J., delivered the Judgment of the Court : — This suit was commenced at Common Law by writ of eject- ment issued 17th January, 1872, to which the defendant put in an equitable defence, the purport of which is, that, though the property sought to be recovered was conveyed by the defendant to the late John J. Marshall, deceased, under whose will the plaintiff claims, the deed sd given was not intended to operate as an absolute conveyance, but as a mortgage only, and that this is evidenced by a receipt or memorandum, bear- ing date 1st January, 1861, in the following terms : " Received ■of John A. Steel, Esq., the sum of £78 - 18 - 4, on account of farms and store at Boyleston, leaving a balance due me on the said farm and establishment of one hundred and seventy-one pounds twelve shillings and eleven pence, which, when paid to me, and the interest thereon, I bind myself to reconvey the said property to the said John A. Steel. (Signed) John J. Marshall." The deed bears date the 22nd March, 1861. In considering this case, I shall have reference to and be guided rather by documents under the hand of the late Mr. Marshall and the accounts kept by him, than by conversations alleged by the defendant to have taken place between himself and the deceased Mr. Marshall ; for, even if the view taken by the defendant's counsel be correct, that Cap. 7 of the Acts of 1869 does not prevent the reception of such testimony, yet in- dependently of the provisions of that Act, such evidence is open to grave objections, especially in cases such as this where an attempt is made to affect and control the operation of a deed. Sir W. M. James, L. J., in Hill v. Wilson, L. R, 8 Cha. App, 900, said, " conversations alleged to have taken place with a dead man in his lifetime by a party interested, unless corroborated, should be wholly disregarded in the interest of justice and the interest of mankind." See also Gray v. Warner, L. R., 16 Eq. 580, to the" same effect. On the part of the plaintiff it is contended that the parties 118 MARSHALL v. STEEL. contemplated an actual sale and purchase of the land in ques- tion, that the deed was intended to be what it purports, an absolute conveyance of the property to Mr. Marshall, and that the memorandum given by him should not have the effect of turning it into a mortgage, but merely amounted to an agree- ment for re-purchase and re-conveyance. The question, therefore, is whether, at the time the deed -was given, a bona fide sale of the land was intended, or whether it was given and intended as a security for the re-payment of money due. If, having regard to the nature of the receipt or memorandum given by Marshall and the concomitant circum- stances, it appears that the parties intended a mortgage, there will be a right to redeem; for though there maybe an absolute bona fide sale and conveyance with a collateral agreement for repurchase and reconveyance, yet, wherever a conveyance of an estate is originally intended as a security for money, however this intention appears, it will ever after be considered in equity as a mortgage, and, therefore, redeemable on the usual terms, even though at the time of the loan or as part of the same transaction, there may have been an express agreement . that it should not be redeemable, or not so before a particular time ; 2 Spence's Equity, 618 ; Smith's Manual of Equity, 296. With the exception of the form of the deed given by the defendant to Marshall, I see nothing to lead to the inference that the parties contemplated an absolute sale of the land, but there is very much to show that a debt was due by the defend- ant and that the conveyance was made to secure the payment of it. No money passed from Marshall to the defendant as the consideration of the deed, and the memorandum already re- ferred to shows that the defendant then owed about £250, on account of which £78 18-4 was paid ; and it appears by a memorandum in evidence in the handwriting of Mr. Marshall that the sum, the receipt of which was then acknowledged, had been paid, the most of it at least, several years before, and at the foot of this memorandum, Mr. Marshall added, " which sums, [amounting in all to £78 18 4,] have been credited on account of the mortgage on his farm to John H. Anderson, assigned to me ;" so that we have here on the 2nd of January, 1861, an acknowledgment that this £78 - 18 4 is to be credit- EQUITY. 119 ed on a mortgage held by him. The next account produced In evidence, also coming from Mr. Marshall, contains under date, January 1st, 1865,—" interest to date due on your farm £41" ; the next, under date December 31st, 1865, — ■" interest on your mortgage for the year 1865 to date, £10 - 6 4," being the interest on the amount remaining due after the payment above referred to. There is then a letter from Mr. Marshall, the date of which is 16th October, 1869. This date it is con- tended has been altered from 1859, but whether written in the one year or the other it seems to me to recognize the existence of a debt due by defendant to Mr. Marshall, secured on this property, which he recommends should be paid, that he might deed it to another, but of course, in that case, for defendant's benefit ; and the terms in which Mr. Marshall expresses himself would had to the inference that at the time the legal title was in him, and if so, it must have been written after 1859, and has an important bearing on the case. But not only does Mr. Marshall treat the conveyance he held as a mortgage to secure a debt due by the defendant to him by charging interest on the debt, and referring to it as a mortgage, but the defendant is allowed to remain in possession of the property for several years after the deed was given, which was consistent with his character of a mortgagor, and not with that of a vendor, who had made a bona fide sale of it. I refer to the period which elapsed from the time the deed was given to the taking of the lease, six or seven years ; so that if the written document given to the defendant by Mr. Mar- shall, had not of itself clearly established that the deed was given as a security for a debt, the way in which both parties acted can lead to no other conclusion than that it was so intended ; and if at the time the deed was given that was the object for which it was given and received, has anything occurred since so to alter the rights of the parties ' as to turn that which was originally a mortgage into an absolute conveyance ? Courts of Equity hold that when once the cha- racter of a mortgagor is established, the right of redemption and other incidents of a mortgage follow, the rule being, where once a mortgage always a mortgage. Newcomb v. Botiham, 1 Vem., 8. ' 120 MARSHALL v. STEEL. ' Inadequacy of consideration is another important element in this case. The only money that appears ever to have been advanced by Mr. Marshall to the defendant on account of the land was £250. Of this, £78 - 18 - 4 was paid by defend- ant before the deed was given, so that if the deed is held to be absolute, the defendant will have parted with his property for £170, or thereabouts. But the consideration in the deed is £400, and the evidence shows that its value was even greater than that. The plaintiff relies, as shewing that Marshall was the actual owner of the .property under his deed, on the fact that in Jan. 1868, the defendant became his tenant under a lease entered into between them, which was produced, as was also an account certified by the defendant to be correct, in which he was charged by Mr. Marshall with rent of farm, 1868, £12. I can see nothing in this inconsistent with the character of mort- gagor and mortgagee. Surely if in this case there 'had been an ordinary mortgage, with the usual proviso for redemption, the right to redeem would not be lost by such a lease ; the mort- gagee had a right to insist on the possession, and if he took it he would be obliged to account to the mortgagor for the rents and profits ; why could the mortgagor not accept a lease with- out forfeiting his right to redeem ? The rent would go to pay the interest, and if it exceeded it, to reduce the principal. A mortgagor may by a subsequent act extinguish his equity of redemption, and the mortgagee may purchase it from him, but courts view such a transaction with jealousy, and they require clear evidence that the mortgagor, by his deliberate act, has parted with his interest. In Ford v. Olden, L. R., 3 Eq., 463, Sir John Stuart, V. C, said, " It has been laid down by the editor of a valuable text book, {Powell .on Mortgage), without sufficent qualification, that a mortgagee may purchase from the mortgagor his equity of redemption.'' Lord Redes- dale in Webb v. Rorlce, 2 Sch. and Lefr. 661, says that courts view transactions between mortgagor and mortgagee with considerable jealousy, and will set aside the sale of an equity of redemption, where, by the influence of his position, the mortgagor has purchased for less than others would have given, and where there are circumstances of misconduct in EQUITY. 121 obtaining the purchase. In Hicks v. Coolc, 4 Dow., 16, it was held that the taking of a lease from the mortgagor to the mort- gagee is objectionable ; a mortgagor may be a man of wealth and in a situation to make any contract he pleases with the mortgagee. But the principle upon which the courts act is, not that the mortgagor is unable to enter into a contract of this kind, but that the transaction ought to be looked' upon with jealousy, especially when the mortgagor is a needy man, and when there is pressure and inequality of position and the sale has been at an under value. In the case before us, there is no evidence to show that the defendant ever released his equity of redemption, or contem- plated doing so, and the evidence having clearly established that Mr. Marshall and himself stood in relation to each other of mortgagee and mortgagor, the defendant is now entitled to redeem on paying the amount of principal and interest. McKEEN v. McKAY. Allan McKay conveyed property to plaintiff by a deed, absolute in its terms, but admitted to have been given as a security for a. debt. Nothing was paid on account of principal or interest by the mortgagor or his heirs, for a period of over twenty years before suit to foreclose, but within that period an action of eject- ment had been brought to recover possession, in which a judgment was obtained, a record filed and a writ of hab. fac. pos. issued but not executed. Held, that these proceedings prevented the statute of limitations from operating except from the judgment. Ritchie, E. J., delivered the judgment of the Court : — This suit is brought to foreclose the equity of redemption in a lot of land conveyed by Allan McKay to William McKeen, dated 8th October, 1849, by a deed absolute in its terms, but admitted to have been given as a security for a debt due by McKay. It was contended on the part of the defendant that as nothing had ever been paid for principal or interest by the mortgagor in his life time, and his heirs since his death, from 122 McKEEN v. McKAY. the date of the deed to the present time, the plaintiff is pre-' eluded after a lapse of upwards of twenty years, from disturbing them in their possession, or setting up the mortgage as a sub- sisting valid encumbrance on the land comprised in it, of which he can avail himself by foreclosure. The answer to this is, that within twenty years a payment had been made by the mort- gagor' to the mortgagee. The payment relied on was not made in money, but a small quantity of hay was supplied by McKay, which was to go to his credit on account. In the receipt the mortgage was not referred to. The Jury to whom the issue was submitted were not satisfied that this was to go as a pay- ment on the mortgage, and they found that no payment had been made on it, to which finding no objection was taken by motion for a new trial previous to the hearing ; and I cannot . say, if the objection was now open to the defendant, that the evidence was such as made it incumbent on them to find otherwise than they have done. There is, however, a difficulty in the defendant's way, which I think he cannot get over. From the evidence it appears that in 1862 McKeen the mortgagee brought an action of ejectment against McKay to recover possession of the land conveyed by by the deed, in which a judgment was obtained and record filed, 31 May, 1862, and on the same day a writ of hob. fac. poss. "was issued but not executed. These proceedings in my opinion prevent the Statute of Limitations from operating except from the date of the judgment, and McKay and those claiming, under him, are estopped from now setting it up as a. defense. A judgment in ejectment not only destroys •the right of possession of the defendant but gives to the adverse party a right of possession. His having a right to enter and sue out a hob. fac. poss. infers that. Suppose this defence to succeed and that the Court should hold that the statute prevented the plaintiff from succeeding in this foreclosure, what benefit would the defendant derive from it ? The plaintiff could still have the judgment revived, on which a hab. fac. poss. would issue, and the defendant be turned out of possession ; and, at most, all that the defendant would then ask for would be to , be allowed to redeem on paying the amount due. The plaintiff is entitled to a decree of foreclosure with costs. EQUITY. 123 MILNER v. RINGWOOD. Plaintiff brought action of ejectment, claiming under a deed from one Purdy, but it appeared from uncontradicted parol evidence that Purdy had purchased the land for the benefit of defendant's father, who had paid considerable sums on account of the purchase money. After the death of defendant's father, Purdy agreed to convey the land to plaintiff; and it was in evidence that plaintiff held the land for the benefit of defendant, then in possession of the property, that he was to give him a deed of it when he paid him what he owed him, and that plain- tiff was to have the hay and half the pasture for interest; but no writings passed between the parties. Plaintiff received part of the hay and had pasturage on the property, and before action brought, defendant tendered to him the principal money. Held, that the equitable defence, based upon the above facts, must prevail. Ritchie, E. J., delivered the judgment of the Court: — This is an action of ejectment to which the defendant has set up an equitable defence. There was a trial at common law, and, after the evidence had been taken, the learned Judge before whom the trial took place suggested, and his suggestion was adopted, that a verdict should pass for the plaintiff, subject to the equities of the defendant as they appeared from the evi- dence, and the whole subject matter was transferred to this Court, under Sec. 6 of Cap. 89, Revised Statutes. The plain- tiff produced a deed of the property in question from John K. Purdy. The land had been originally owned by Isaiah Ring- wood, and a deed was produced from him to Margaret McCarthy, who conveyed it to Purdy, so that the legal title was shewn to be in the plaintiff; but it appears from the evidence on the part of the defendant, and that evidence is uncontradicted, that Purdy made the purchase from Margaret McCarthy, not for himself, but for the benefit of Peter Ring- wood, who paid considerable sums on account of the purchase money. Peter subsequently died, and after his death Purdy agreed to convey it to the plaintiff, who was to take a mort- gage or give a bond to the defendant, Abraham Ringwood, a son of Peter, he being then in possession of the property, to convey it to him on payment of the amount due him, and, under this arrangement between plaintiff, defendant and him- self, Purdy gave the deed to plaintiff. The Ringwoods have 124 MILNER v. RINGWOOD. never been out of possession, and have improved the land and built a house upon it. The plaintiff has repeatedly admitted to Purdy and others that he was to give the defendant a deed of the land when he paid him what he owed him, and all he claimed was that he should pay him interest on the amount due. The defendant testifies that before going to Eurdy in relation to the property, the plaintiff agreed with him that he was to have half the hay and pasture for interest till the debt was paid. This statement is not denied by the plaintiff, and plaintiff gave him as a reason for not getting Purdy to write the . bond when the deed was given, that if he wrote it, he would have to be paid for it ; that he, plaintiff, would get a person to write it, and said that he would give it to him at any time. Henry D. Crouse, one of the witnesses, testifies that he had a conversation with plaintiff four years ago, when he told him that he took the place on conditions that he bought it for Ring- wood, who was to pay him the principal money back in a certain time, and he was to have the hay and half the pasture for his interest, and no doubt rests on my mind that this was the actual agreement between the parties. The plaintiff has been in the receipt of part of the hay, and has had pasturage on the property, and a tender of the principal money was made previous to the commencement of the action, but as no writ- ings have passed between the parties, it is contended on the part of the plaintiff, that no effect is to be given to such a verbal agreement. The question thus raised is in effect the same as that which was before this Court very lately in Amero v. Amero, (Ante, p. 9), in which it was held that though an absolute conveyance be made, it might be shown by parol evidence to have been made by way of security for the payment of money. The evidence clearly shews the existence of a debt between the parties, for which interest is demanded, which has been received by the plaintiff in hay and pasture, from time to time, the defendant retaining the possession of the land notwithstanding the deed ; and Purdy says that plaintiff was to take a mortgage or give a bond to convey the land to defendant on payment of the amount due, that is, the security he was to have for his EQUITY. 125 money was to be a mortgage on the property ; or if he took an absolute deed of it, he was to give a bond. Now this Court will always treat a transaction as a mortgage if the parties intended that it should be such, though the instrument given be an absolute deed ; and if the transaction be such at it's inception, it will always be deemed so, — once a mortgage always a mortgage — and the authorities are numerous which recognize the principle that' where a question arises whether an absolute conveyance is intended as a mortgage or not, parol evidence will be admitted to shew that what appears on its face to be absolute, was intended to be a conveyance by way of mort- gage.- As I referred to the more important of these cases at large in Amero v. Amero, it is unnecessary for me to do more at present than name them, viz: Maxwell v. Montecute, Prec. in Ch., 526 ; Lincoln v. Wright, 4 DeG. & J., 16 ; Booth v. Turk, L. R, 16 Eq., 187 ; Haigh v. Kaye, L. R, 7 Ch. App., 474 ; Pain v. Coombes, 1 DeG. & J., 34 ; Loxly v. Heath, 27 Bea. 532 ; Laver v. Fielden, 32 Bea., 1-12 ; McCormack v. Grogan, L. R, 4 H. of L., 97, and there are others to the same effect. Viewing the deed held by the plaintiff to be so held as a security for the payment of a debt due by the defendant, and the amount of that debt having been tendered to him before this action was brought, it was his duty to have accepted the amount and conveyed the property to the defendant as he had undertaken to do, and, as under our Statute an equitable defence is allowed in ejectment, he" cannot in violation of equity insist on his legal right to possession of the property under his deed, and the defendant will be entitled to his costs. MISENER v. GASTON. Plaintiff and defendant in settling their affairs on dissolution of their co-partner- ship, entered into an accounting by which it was shown that plaintiff had drawn S318.86 from the partnership funds in excess of the sum drawn by defendant, which defendant contended was due from plaintiff to him, but which plaintiff insisted was due to the partnership, so that only half the amount was due to defendant. Plaintiff finally yielded to defendant's contention, and paid over the 126 MISENER v. GASTON. money. Becoming satisfied afterwards that his own view was correct, he brought action, after the lapse of about a year, to recover the amount improperly paid over. Held, that having paid over the money with full knowledge of the facts, the very point now in controversy having been discussed at the settlement, the plaintiff could not, after the lapse of a year, during which he had carried out in all respects the settlement agreed upon, apply to have the mistake corrected. Ritchie, E. J., delivered the judgment of the Court : — The plaintiff in this suit asks the Court to decree that the defendant should re-pay him a sum of money, which he alleges was paid to him under a mistake that occurred on an accounting which took place between them. They had been partners in business, and when about to close the partnership, they had a settlement, and in his writ, plaintiff alleges that it was agreed between them that the plaintiff should purchase from the partnership the assets and credits at a valuation settled and agreed upon, amounting to $351.13, and assume the liabilities of the business. From the sum of $351.13 was to be deducted $47.36 and $59.51 for unfinished work, which the plaintiff was to perform, leaving a balance of $244.26, which it was agreed should represent the value of stock, assets and credits, at which they should be pur- chased by the plaintiff. It was also settled that the amount drawn by him from funds, of the partnership was $695.87, and the amount drawn by the defendant was $377.01 ; that the defendant contended a^d insisted, at the settlement, that the amount due him by the plaintiff for the assets and credits of the partnership was to be ascertained by subtracting the amount drawn by defendant from the amount drawn by plain- tiff — less $20, which it was agreed plaintiff should receive for his trouble and risk in collecting the accounts. This the plaintiff objected to at the time as erroneous, as it treated the $318.86, being the excess of the amount drawn by the plaintiff from the partnership fund, as being wholly due to the defendant ; whereas in fact it was due to the partnership, and therefore only one-half due to the defendant ; but though he so contended and insisted, he says he allowed himself to be persuaded of the correctness of the defendant's contention, and yielded, and paid the defendant the balance so erroneously made up, being EQUITY. 127 $318.86, when in fact he should only have paid him $159.43 ; that subsequently he became satisfied that the calculation had been erroneously made, and he now prays that the mistake may be rectified, and that the defendant should be decreed to pay to him the said sum so overpaid. The evidence, in my opinion, sustains the case set out in the plaintiff's writ, and the only defence which, it appears to me, can avail the defend- ant, is that the money now sought to be recovered from him was paid by the plaintiff with a full knowledge of all the facts and after the question now in controversy had been raised by him and discussed, and he had yielded to the contention of the defendant, for the plaintiff was right in the view he took of the accounting ; but I think this defence must prevail, and that it is too late now for the plaintiff to seek to have the mis- take rectified and the money refunded, especially as he not only consented to pay the amount, knowing all the circumstances of the case, but having done so, allowed a year to elapse before any attempt was made to have the mistake rectified, and in the meantime not only paid the money to Gaston, but in all other respects carried out the settlement as agreed upon. The cases are numerous which establish the principle that money voluntarily paid, with full knowledge of the facts, is not recoverable. In that of Bilbie v. Lumley, 2 East, 469, where an underwriter had paid a loss which he sought to recover back; on the ground that a material letter had been concealed, it was held that he could not, as he knew of the letter at the time of the adjustment. Lord Ellenboeough asked ,the plaintiff's counsel if he could state any case, where, if a party paid money to another voluntarily, with full knowledge of the facts of the case, he could recover it back again, on account of his ignorance of the law. And Brown v. McKinally, Esp., 279, is directly in point. There the plaintiff and defendant entered into an agreement, whereby the defendant agreed to sell the plaintiff all his old iron, except bushell iron, which was of an in- ferior quality, at £9 a ton. The iron delivered was of inferior quality, part being bushell iron, and the full value of the best sort was charged. The plaintiff objected to the amount charged, and defendant sued him, when he paid him the full demand, telling him at the same time that he did so without prejudice, 128 MISENER v. GASTON. and meant to bring an action to recover back the overcharge. Lord Kenton held that such an action could not be maintain- ed, that money paid by mistake was recoverable in assumpsit, but here it was paid voluntarily, with full knowledge. Brisbane v. Bacres, 5 Taunt., 153 ; Dew v. Parsons, 2 B. & Aid., 562 ; Steele v. Williams, 8 Exch., 625, recognize the same doctrine, though they make a distinction between such a case as this, where the payment is voluntary, and cases where money is paid under an ' extortionate demand, made colore officii, which cannot be considered voluntary, it being contra equum et bonum for a public officer to retain what he has acquired by taking undue advantage of his situation. SJcyrmg v. Greenwood, 6 D. & R., 401, is a strong case in support of the defendant's contention. There the defendant's army agents had given credit to the plaintiff, a Major in the army, in certain sums of 1/1 and 2/ per diem in a running account between him and themselves ; they delivered him a statement, shew- ing a balance of £116 9 7 in his favor. It turned out that 1/1 and 2/ per diem were not payable to officers in Major Skyring's situation, and that the defendants had received an intimation to that effect, which they did not communicate to him, otherwise than by ceasing to credit him with the 1/1 per diem, and by writing him requiring the re-payment of the sum they had paid him. In an action by the admistrators of Major Skyrings for the balance due at the time of his death, they were not permitted to retain the sums with which they had by mistake credited him. And in Bramston v. Robins, 4 Bing. 11, Best, C. J., said that if money be paid with a full know- ledge of the circumstances at the time of the payment, it cannot be recovered by the payer ; and Lord Eldon said the same in Bromley v. Holland, 7 Ves., 23, quoting the judgment of Lord Kenyon in Beauchamp v. Borret, Peakes N. P. cases, 109. The language of Heath, J., is applicable to this case. " He, the plaintiff, has acted as judge in his own cause, and has decided against himself, and he cannot be heard to repeal his own judgment." EQUITY. 129 MOODY, et al. v. BANK OF NOVA SCOTIA, et al. Sanderson, one of the defendants, had been obtaining discounts from the Bank of Nova Scptia on paper endorsed by one or more persons, and the Agent of the Bank becoming dissatisfied on account of the numerous renewals, and referring to the possibility of the endorsers being called upon to take up the notes, Sander- son, in July 1859, gave the Bank a judgment for the exact amount then due on the notes. In September 1860, the plaintiffs recovered judgments against Sanderson, and a number of other judgments were entered up against him by parties who were made defendants in the present suit. Sanderson continued to get notes discounted until 1874, when his affairs became embarrassed, and the- Bank ceased to discount his paper. The notes then at the Bank were taken up by the endorsers, and Sanderson ceased to be indebted to the Bank. In 1874 the parties who were then endorsers on Sanderson's paper discounted at the Bank took proceedings to revive the judgment, and issued and delivered to the Sheriff au execution, With instructions to levy on Sanderson's real estate. Held, that,, the judgment having been taken for a specified sum ascertained at the time to be due the Bank and which had been long since paid, neither the Bank nor the endorsers of Sanderson's paper could make it available for any subsequent' liabilities. Simultaneously with the issuing of the execution at the suit of the Bank, the- other defendants whose judgments were subsequent to those of the plaintiff's, had> executions placed in the Sheriff's hands by Mr. Grantham, who was the attorney by whom all the executions were issued, with instructions to levy for the amount of them on Sanderson's real estate, and the land was advertised by the Sheriff, as- one sale, the advertisement being headed in all the causes of the several defend- ants, including the Bank. Held, that under the circumstances, the sale being under the direction of Grantham, the attorney ia all the causes,, the plaintiffs- were justified in making the encumbrancers subsequent to the Bank defendants- in this suit. Otherwise, possibly, if these subsequent incumbrancers had not connected themselves with the Bank, but had advertised, sales under their respec- tive judgments, subject to prior encumbrances. Injunction to stay the sale until the validity, or otherwise,, of the judgment atr the suit of the Bank was settled, continued, but only on the condition that the- plaintifls should give an undertaking to bring on the case : for trial at the next term of the Supreme Court in the County, or that their bill be dismissed. Costs decreed against the Bank, but not as against the other defendants. The following judgment was delivered by Bxtghie,, E, J., on the motion to dissolve the injunction : — This is not a case where the statements offffie hill and the affidavits on the part of the plaintiffs are. contradicted by the answer and the affidavits on the part of the defendants, but it is apparent that there is a case submitted, to. the Court requir- 9 130 MOODY, et al. v. BANK OF N. S., et al. - ing investigation. The injunction granted is not, therefore, necessarily to be dissolved. The effect of a sale of the land in question at the suit of the parties who hold judgments obtain- ed after that now in controversy, though made subject to the prior judgment, must, I think, be prejudicial to the interests of all concerned. If no question had arisen as to the validity of the prior judgment, no objection would necessarily exist to such a sale ; but, where the validity and efficiency of the judg- ment to bind the land are in controversy in this suit, to sell subject to such a judgment would preclude prudent persons from bidding, or, if they did bid, they could only safely do so by assuming the prior judgment to be a valid and available •security, and if this were not case and the prior judgment should be decreed to be inoperative to bind the land they would get the property for much less than its value, — would in fact profit to the extent of that judgment at the expense of the debtors or encumbrancers subsequent to them. If the whole property had been shewn to have been going to decay from the delay in bringing on the cause to a hearing, I should, under the circumstances, have ordered a sale of it, and directed the proceeds to have been paid into Court subject to the rights of the parties claiming them, as the Court should ultimately decree; and as regards a part of the property both parties agree that it is desirable that a sale should at once take place. Let a sale of this portion take place, the proceeds to be paid into the Court to abide its further decree. The injunction will -for the present be continued, but only on condition that the plaintiffs give an undertaking to bring the case on for trial -at the next term of the Supreme Court in the County of Yarmouth, or that their bill be dismissed. After trial and argument, Ritchie, E. J., delivered the fol- lowing judgment of the Court : — The defendant, Gilbert Sanderson, commenced to do business with. the Bank of Nova Scotia at Yarmouth about thirty-five years -ago, obtaining from time to time as his business required it Joans of money on notes at three months, indorsed by one or 'more persons. In July 1859, Mr. Murray, the agent of the Bank, not being satisfied with his account, intimated to Sand- EQUITY. 131 erson that tlie notes discounted were renewed from time to time, and referred to the possibility of his indorsers being called upon to pay those then in the Bank, whereupon he said perhaps he had better give a judgment. He went away and had a judgment entered for the exact sum then due on the notes which had been discounted, a memorandum of which Mr. Murray gave him ; this was all that took place between Mr. Murray and Sanderson in relation to the judgment given to the Bank. In September 1860, Messrs. Moody, Brown & Co. recovered judgment against Sanderson for $1990.90, on which there is due a small balance, and in May 1864, the plaintiff, J. W. Moody, as administrator of the estate of E. W. B. Moody, recovered judgment against him for $1754.30. All of these judgments were duly recorded shortly after they were entered. Subsequently judgments were entered against him and record- ed by James "W. Shatford, Sydney D. Jenkins, and Messrs. Young, Watson and Drysdale. Sanderson after giving the judgment to the Bank, continued to get notes discounted from time to time, till September 1874, when his pecuniary affairs became embarrassed, and the Bank ceased to discount his paper ; the notes then at the Bank have been taken up by the indorsers, and he has ceased to be indebted to the Bank. The judgment was allowed to lie dormant for about fifteen years, but in 1874 the parties who were then indorsers on Sanderson's paper, which had been discounted at the Bank, took proceedings to revive the judgment, and, after having done so, they had an execution issued and delivered to the Sheriff, with instructions to levy upon the real estate of the defendant. Mr. Murray, the agent of the Bank, testifies that when this was done the indorsers had taken up Sanderson's notes, and that no debt was then due by him to the Bank ; that in this suit the directors are but nominal defendants, the indorsers having assumed the defence and indemnified the Bank against all costs which may be incurred. Notwithstand- ing this, in their answer, the directors contend that the judg- ment has never been paid, satisfied or released, and that they have a just, legal and equitable right to hold and retain the same as a continuing security upon Sanderson's real estate, as 132 MOODY, et al. v. BANK OF N. S, et al. well for the amount of their own claim, as for the indemni- fication and protection of the indorsers of Sanderson's paper to them, that having been its original purpose or intention ; and they claim priority over the judgments of the plaintiffs, and assert a right to levy on the real estate of Sanderson to recover the amount due to the bank by him, and thus to pro- tect, reimburse and ; indemnify his indorsers and sureties to the Bank. There is no evidence that any agreement or arrangement was made between Sanderson and the bank, or with those who had indorsed or were about to indorse his paper, pre- vious to or at the time of the giving of the judgment, that it was to operate otherwise than as a security to the bank for the amount of his then liability to the bank; it is, therefore, needless to remark on the character of the defence set up, or to consider whether, if the statements in the answer of the directors had been sustained by proof, it would have availed those on whose behalf the defence is conducted. The evidence adduced leads to no other inference than that the judgment was taken for a specific sum, being the amount ascertained at the time to be due to the bank, which amount has long since been paid, and neither the bank nor the indorsers of Sanderson's paper could make it available for any subsequent liabilities. Simultaneously with the issuing of the execution at the suit of the bank, the other defendants I have referred to, who have judgments subsequent to those of the plaintiffs, had executions issued and placed in the hands of the Sheriff by Mr. Grantham, who was the attorney by whom all the executions were issued, with instructions to levy for the amount of them on Sanderson's real estate. This the sheriff did, and he advertised it as one sale, heading the advertise- ment in all the causes, including that of the bank. These defendants do not claim priority over the plaintiffs' judgments, but they, in their answer, assert that they gave instructions to the Sheriff to sell the land subjeet to all prior encumbrances. This, however, they have failed to prove. The only question with' respect to them is one df eosts, whether the plaintiffs were justified iri making them defendants; and seeking ta stay the EQUITY. 133 sale of the land at their suits. I think that, under the circum- stances, they were ; the sale being under the direction of Mr. Grantham the attorney in all the causes, and there being but •one sale about to take place, the plaintiffs were entitled to have it stayed till they should have an opportunity of asserting their rights as the first encumbrancers. If these subsequent encumbrancers had not connected themselves with the Bank of Nova Scotia, and had advertised a sale under their res- pective judgments, subject to prior encumbrances, it might have been otherwise. The case of Smith et al. v. Smith et al., 2 Oldright, 308, was cited to shew that; a judgment creditor «ould sell notwithstanding the existence of a prior judgment without notice to the prior encumbrancer. The question there was not between encumbrancers ; all that the Court held was that a second or subsequent judgment creditor might sell the lands of the defendant whose interest would pass, " subject to prior encumbrances." Without calling in question. the authority of that case, the plaintiffs were I think in this case well justified; in asking to have this sale stayed, advertised as it was in conjunction with a judgment, the validity of which, they controverted. At the same time I may remark that the practice of a subsequent judgment creditor selling without reference to the prior judg- ment or notice of its existence might not infrequently be attended with injury or inconvenience, especially to purchasers. In this Court, in foreclosures, a second or subsequent mortgagee or encumbrancer cannot obtain a sale of the mortgaged prem- ises without the consent of the first mortgagee, except upon such terms as the Court may think proper, and in the interest of intending purchasers as well as pf the mortgagor, there is good reason for the provision. But, while I think these defend- ants are not entitled to have the suits as regards them dismiss- ed with costs, they should not be made to pay costs, as the whole litigation had been occasioned by the course pursued by the Bank of Nova Scotia, against whom the plaintiffs are entitled to a decree with costs. 134 MOREN v, SHELBURNE LUMBER CO., et al. MOREN v. SHELBURNE LUMBER CO., et al. Plaintiff applied for an injunction to restrain defendant from selling or other- wise disposing of lumber of which he claimed to be owner under an alleged pur- chase from the Company, the validity of which was disputed. The injunction was refused, plaintiff having an adequate legal remedy at Common Law by actions for damages. Ritchie, E. J., delivered the Judgment of the Court : — A rule nisi for an injunction was obtained by the plain- tiff to restrain the defendants from selling or otherwise dis- posing of a quantity of lumber &c, of which he claims to be the owner under an alleged purchase from the company. The validity of the purchase is disputed and his title to the pro- perty is denied by the defendants. The court is not called upon at this stage of the case to decide the question thus at issue between the parties. What we have to consider is whether an injunction should be granted to protect the pro- perty and prevent the disposal of it pending the litigation. It seemed to be assumed by the plaintiff's counsel that if the plaintiff shewed a right to the property the injunction would be granted of course, but that is by no means necessarily the case. Before granting an injunction the Court must be satisfied that its interference is necessary to protect him from what is termed irreparable injury until the legal title can be determin- ed, that is such an injury as is not adequately reparable by damages in an action at law, for if one has a full and complete remedy at law he cannot assert that the damage is irreparable. In the case before us damages in an action at common law will afford a full and complete remedy and the plaintiff has had recourse to such an action. He has brought trover against Stewart Freeman et al. for taking a portion of the property the subject of this suit, which is defended and is now pending. He has also taken out a writ of replevin for a portion of it against the same parties which is defended and pending, the defendants retaining the property having given the security required by law. In addition to which the said Stewart Freeman et al. have taken out a writ of replevin against the EQUITY. 135 plaintiff for a portion of the property after giving security, and this suit also is pending. In these actions is embraced all the property in dispute except that portion levied on by the defendant John A. Purney the Sheriff of Shelburne, against whom an action for damages can be maintained if the property belonged to the plaintiff. I can, therefore, see no grounds for the interference of this Court by injunction where a court of common law is quite competent to deal with the question involved and to give full relief, and there is the less reason for the interference that in both the actions of replevin the plaintiff has security to abide their result. If an injunction were granted in this case the writ could never be refused in any case where, the title to personal property was in controversy and trover or trespass was the ordinary remedy. The rule nisi for an injunction must be discharged. MOTT v. BUENS. Where the defendant had no drain leading from his premises to the common, sewer on the street, and the plaintiff prevented all access to a drain on his own property through which the water might flow to the sewer from defendant's pro- perty, but defendant proved no title or right to use such drain, the Court granted an injunction to restrain defendant not only from permitting his waste water to flow on plaintiff's property, but from receiving water from the city water works- until a suitable drain was constructed, the evidence shewing that the introduction of such supply, in the absence of a suitable drain, occasioned an overflow on, plaintiffs premises. Kitchie, E. J., delivered the judgment of the Court : — The writ sets out that the defendant obtains water from the City water works and has no drain or other means by which the waste or other water from his premises can be carried off, which, therefore, flows into and upon the plaintiff's property- adjoining, whereby the kitchen, the cellar and lower parts of the house are overflowed, thereby endangering the health of his family and occasioning serious inconvenience; and heprays^ 136 MOTT v. BURNS. that the defendant may be. restrained from permitting any- waste or other water to flow from his premises into the plain- tiff's, and that he may be ordered to construct a suitable under- ground drain from his dwelling house to the common sewer in the street on which the house is situate. The defendant, in his answer, states that he has a. drain suitable for carrying away the waste and other water from his premises, which would have that effect if it had not been choked and obstructed by the plaintiff, and that any water which flows into the plaintiff's property does so because of such obstruction. It is provided by the 310th Section of Chapter 81 of the Acts of. 1864, that.every dwelling house shall be furnished with a suitable drain for carrying out the waste water &c, and, by the 314th section, that all waste water shall be conveyed through drains under ground to a common sewer or such reservoir as a health inspector shall appoint ; and, by Chapter 14 of the acts of 1873, power is given to the Commissioner of Streets, where there is a common sewer, to cause the owner of the land adjoining to make a sufficient drain from his house to it, when, in the opinion of the Board, the same shall be necessary, and in case the owner shall neglect to make it, the Board shall cause it to be done at the expense of the owner, such drain to be laid as pointed out by the City Engineer under the. direction of the Board ; and no person is authorized ,to make any such drain and connect it with the sewer with- out the permission o£ the Board. From the evidence it appears that there is a common sewer in the street on which the defendant's house is situate, but there is no drain leading into it from his premises. There is a drain from the plaintiffs land which connects with the sewer :and all access to this drain from the defendant's premises the plaintiff has prevented, as he asserts he has a right to do, as it. is entirely on his own land, and was constructed by those under whom he claims. This he has established by the •evidence, and the defendant has failed to show any title to it or any right, to have the waste water from his premises j»ass into it or through the plaintiff's land. vCouuts of Equity will not in general undertake to decide EQUITY. 137 whether a nuisance exists or not, when the fact is in contro- versy, but will in that case require the party seeking the inter- ference of the Court to establish in the first instance his right at law; but here it is not contended that -the plaintiff has sus- tained no injury bythe overflow of the. defendant's waste water, and it must be conceded that the injury has been such as from its continuance must occasion a constantly recurring grievance, impairing the just enjoyment of his property, the only defence set up being the existence, of a drain of the plaintiff, suffi- cient to carry off all the defendant's waste water, which drain the defendant has obstructed, thereby himself creating the nuisance. * The defence, has, I think, entirely failed, and the plaintiff is entitled to an injunction, to restrain the defendant from permitting waste water to flow from his premises into those of the plaintiff; and as the evidence shews that the intro- duction of water by pipes from the city water works without such a drain occasions an overflow on the plaintiff's premises, the injunction should extend to restrain him from so receiving that water till a suitable drain be constructed to the common sewer in accordance with the terms of the statute I have referred to. MURDOCH v. WINDSOR & ANNAPOLIS RAILWAY COMPANY. Plaintiffs bad security on the undertaking of the, defendant company, future calls on shares and all tolls and money arising from the undertaking, for £200, 000 as a first lien. Messrs. Roberts, Lubbuck & Co., an English firm, had a lien on the rolling stock for £25,000, and there were about £70,000 due to unsecured creditors. Defendants, under Chapter 104 of the Acts of 1874 of the Legislature of Nova Scotia, entitled "An Act to facilitate arrangements between Railway Companies and their creditors,"* filed a scheme, whereby preferential stock to the extent of £75,000 was to be created, to be a first charge on both the undertak- ing, calls, tolls, &o., and the rolling-stock, and this, or the money coming from it, was to be applied to the payment in full of Messrs. Roberts, Lubbuck & Co. and certain unsecured debts specified; stock, to the extent of £350,000 was then to be created, to be a subsequent charge on the undertaking, See. and rolling- stock, and was to be issued at par to the existing debenture holders in lieu of the * See page 1 of the Act* of 1875. 138 MURDOCH v. W. & A. "RAILWAY CO. debentures they then held, which were to be delivered up to be cancelled. Plain- tiffs obtained an order for the appointment of a receiver, which defendants obtain- ed a rule nisi to rescind. The Court, considering that the Act was ultra vires, as it dealt with the subject of insolvency, and further, that the scheme filed was unreasonable, as its object was to secure other creditors at the expense of deben- ture holders having a first lien, discharged the last rule nisi, but, in view of the possible reversal of the judgment on appeal, offered to modify the order appoint- ing the receiver, by directing him to pay the amount to be received to the Receiver General, to abide the further order of the Court. Ritchie, E. J., delivered the judgment of the Court: — The plaintiff, on the 16th November last, obtained an order nisi for the appointment of a receiver, which was on the 28th December last, after argument, made absolute, and on the 2nd February last William Twining was appointed receiver to col- lect and receive the tolls and sums of money arising from the Windsor and Annapolis Railway Company, and to pay them over to the plaintiff till the amount due him by the Company on the mortgage debentures, the subject of the suit, and his costs should be fully paid, with leave to apply to the Court for further directions, who, after having given the required security, entered upon the duties of the office. On the 15th of March last an application was made by Mr. Henry, on behalf of the Company, to rescind the order appointing Mr. Twining receiver, and to annul his appointment, and he obtained a rule nisi to that effect which was argued on the 29th March. The rule nisi was obtained on the affidavit of Mr. Henry that a scheme of arrangement between the Company and their cre- ditors had been filed in the Supreme Court at Halifax on the 12th day of February last, notice of which had been duly published under and in compliance with the provisions of an act of the Province of Nova Scotia entitled "an Act to facilitate arrangements between railway companies and their creditors * and it was further stated that he, Mr. Henry, had been in- formed by the Secretary of the Company in London, and fully believed, that the scheme had been assented to by three- fourths in value of the creditors of the Company. * See page 1 of the Acts of 1875, where this Act is placed as Cap. 104 of the Acts of 1874, having been reserved for the assent of the Governor General. EQUITY. 139 In shewing cause it was contended on the part of the plain- tiff that the Legislature had exceeded its power in passing the act referred to, as it dealt with a subject over which the British North America Act conferred on the Parliament of Canada exclusive power of legislation, Bankruptcy and Insolvency being among the enumerated classes of subjects with which ttiat Parliament alone can deal ; and that this act could be con- sidered in no other light that as an insolvent act. It was also contended that if the Local Legislature had authority to pass the act the scheme proposed was so unreasonable in its provisions, that by merely filing it the Plaintiff should not be restrained from obtaining the benefit of the judgment he had obtained and from his remedy for the recovery of the debt due him by the Company. It was also urged that the application, if made at all, should have been made sooner. The following sections of the Act bear more particularly on the question involved, viz: the 2nd, 3rd, 4th and 5th; Sec. 2nd. "A company may propose a scheme of arrangement between the company and their creditors (with or without provisions for settling and defining any rights of shareholders of the company as among themselves, and for raising if neces- sary additional share and loan of capital or either of them,) and may file the same in the Court ;" — Sec. 3rd, " After the filing of the scheme, the Court may, on the application of the com- pany on summons or motion, in a summary way, restrain any action against the company on such terms as the Court thinks fit;" — Sec. 4th, "Notice of filing of the scheme shall be publish- ed in the Gazette, and in two other newspapers published in the City of Halifax"; — Sec. 5th, "After such publication of notice, no execution, attachment or other process against the property of the company shall be available or be enforced, without the leave of the Court, to be obtained on summons or motion in a summary way." These provisions, as well as the other provisions of the Act, have been transcribed from sections of the Imperial Statute, 30 and 31 Vict., Cap. 127, but in transcribing the second sec- tion of the Nova Scotia Act, from the sixth of the Imperial Act, with which in other respects it is identical, these words at the commencement of the section are omitted ; " where a 140 MURDOCH v. W. &. A. RAILWAY CO. company are unable to meet their engagements," and at the close of it the company is required to file a declaration in writing that it is unable to meet its engagements, with an affidavit of the truth of such declaration. Had these words been transcribed into the Act in question, it would have appeared on the face of it that it treated of a subject over which the Provincial Parliament had no power of legislation, and it would doubtless have been rejected as ultra vires. It is of little importance, however, whether an act does or does not profess in terms to deal with insolvency; the ques- tion is, does it in fact deal with that subject. If power is taken from creditors to pursue their ordinary legal remedies for the recovery of debts due them, whether by companies or firms or individuals, or they are compelled, without their con- sent, to give time to their debtors, or to forego securities which they hold, and postpone a priority of lien which they possess to parties who may be willing to advance money to their debtors to meet pressing necessities, surely such legislation can only be predicated upon such debtors being unable to meet their liabilities, or, in other words, being insolvent. That a company having become insolvent, in order to settle with all its creditors alike, should have the power of declaring itself such, and on such declaration the remedies of creditors should be suspended, is not unreasonable, but that the Legislature should give to a company solvent and able to meet all its liabilities, the power of staying all proceedings against their creditors by merely proposing and filing a scheme of arrange- ment with them would be incomprehensible. The legislation must have been based upon the assumption of the insolvency of the company ; the whole of the provisions of the Act can lead to no other conclusion; and the company itself has so regarded it, for the scheme which they have filed is preceded by this recital, " and whereas the company are unable to meet their engagements with their creditors." But, assuming that validity is to be given to. the Act, yet, where an application is made to the Court to stay the pro- ceedings of creditors, reference must be had to the terms of the scheme; for it could hardly have been contended that the application must necessarily be successful because a scheme, EQUITY. 141 however unreasonable in its character, had been filed. In any- such scheme, the various classes of creditors must be fairly- treated, and it should shew a reasonable prospect of providing for the ultimate payment of their claims. The present debenture holders, of Whom the plaintiff is one, have security on the undertaking of the Company, future calls on shares, and all tolls and money arising from the undertak- ing for £200,000, as a first lien ; Messrs. Roberts, Lubbuck & Co., an English firm, have a lien on the rolling-stock for £25,000, and there are about £70,000 due to unsecured credi- tors. By the scheme, preferential stock to the extent of £75,000 is to be created to be a first charge on both the under- taking, calls, tolls &c, and the rolling' stock, and this, or the money coming from it, is to be applied to the payment in full of Messrs Eoberts, Lubbuck & Company, and certain unsecured debts specified ; then stock to the extent of £350,000 is to be created, which is to be a subsequent charge on the undertak- ing &c. and rolling stock, which is to be issued at par to the present debenture holders, in lieu of the debentures which they now hold and which are now due. These latter are to be cancelled and the remainder of the newly created stock is to be issued to all the creditors of the Company now unsecured, or who shall not be entitled to preferential stock or cash ; so that, not only are certain creditors given a first lien on what the present debenture holders now have a first lien on, but even that over which the scheme gives them a secondary security is extended to a large body of creditors who have now no lien on it, and those creditors who have become such without security are to be placed on the same footing with those who originally advanced their money on the lien, where- by, after their debts so secured have become due, their security is to that extent lessened and payment indefinitely postponed. The object of the proposed scheme seems to me to be to secure, as far as possible, the other creditors of the company at the expense of the present debenture holders. Entertaining as I do a strong opinion that the Local Legis- lature, in passing th& Aet, exceeded its powers, and that the scheme does not deal fairly with the present debenture holders, I cannot comply with the application which has been made on 142 MURRAY v. McDONALD, et al. behalf of the Company, and must discharge the rule nisi with costs ; but as both the questions I have been considering will properly come before the whole Court in term, when it is possible a different view may be taken of them, I am disposed so far to modify the order appointing the receiver, as to direct him to pay the amount to be received by him to the Receiver General of the Court, there to abide the further order of this Court, if this course should be desired on the part of the company.* MURRAY v. McDONALD, et al., Administrators of FINDLAY McDONALD. F. McDonald, deceased, made a mortgage to plaintiff which plaintiff brought suit to foreclose, defendants set out an agreement by which plaintiff agreed to release the mortgage on receiving three promissory notes made by one McKinnon, to whom part of the land had been sold by the mortgagor. Plaintiff, replied that the notes were only taken as collateral security, to be credited to the mort- gagor when paid, and that nothing had been paid on account of them. On the trial of the issue, plaintiff proved the mortgage, and defendants produced no evidence whatever. The jury found for defendants. Held, that the burden of proof of the issue raised was on the defendants, and that as they had proved nothing, the finding must be set aside. Ritchie, E. J., delivered the judgment of the Court : — The issue settled in this cage was submitted to the Jury by Judge DesBarres, who, after having explained it to them, told them in his charge that, as the defendants had offered no evi- dence, their defence had' failed, and the issue ought to be found in favor of the plaintiff. They, nevertheless, found in favor of the defendants, whereupon a rule nisi was taken to set aside the finding and for a new trial. The proceedings in the suit were taken to foreclose a morgage made by Findlay McDonald to the plaintiff. On the part of the defendants it was not denied that the mortgage had been given, but it was alleged that after it had been given the plaintiff and the mortgagor agreed to sell, and did sell one hundred acres, a part of the * The decision was not appealed from, but the subject came before the full Court on application for the confirmation of the scheme. EQUITY. 143 mortgaged premises, to one Hector McKinnon, and the mort- gagor thereupon, at the request of the plaintiff, gave up the possession of the part so sold to McKinnon, — it is not asserted that he ever received any deed of the land so sold, — and the plaintiff received three promissory notes of McKinnon, where- upon the plaintiff agreed to relinquish, discharge and release to the said Findlay McDonald all claim, right and interest which he had in and to the residue of the said mortgaged premises ; that the amount of the three notes, with the exception of eight dollars, which they paid into Court, was sufficient to satisfy the mortgage, and the plaintiff agreed to accept, and did accept the said notes in full payment and satisfaction of his claim on the said mortgage, except the said sum of eight dollars. To this the plaintiff has replied that the land was sold to McKinnon by the mortgagor who took the notes, payable to the plaintiff and gave them to him, that when paid they should be credited to him on the mortgage, and he held them merely as collateral security; McKinnon shortly after left the Province without having paid any part of the notes, and the plaintiff denied that he accepted or agreed to take the notes as payment or to relin- guish his claim under the mortgage. On the trial before. Mr. Justice DesBarres, the plaintiff produced and proved the mort- gage, and the defendant produced no evidence whatever. The only ground upon which it appears to me the verdict could be sustained would be that the proof of the issue was on the plain- tiff, and as he had failed to adduce the proof, the defendant was entitled to have the issue found in his favor. The defendants have been deprived of the evidence of the mortgagor by his death, and on account of his death, the plaintiff could not be examined in support of his case, though the defendants might have examined him if they had thought fit. The sole question now is, on whom the onus of proof lay. The plaintiff, having proved his mortgage, and the defend- ants contending that the benefit of his security has been waived by the acceptance of the notes, it is for them to shew to the Court that his lien has been discharged, and not for the plaintiff to disprove the substitution of the new security for the old. See Fisher on Mortgage, p. 811, sec. 1469. The same author, on page 817, says :" If a bill be taken on account of 144 McNEIL v. BEATON, et al. a debt, and it turn out worthless, a lien is not affected by it unless proved to have been taken in discharge of a debt;" and even a lien for unpaid purchase money, 'where there is no mortgage, is not necessarily destroyed by the receiving of a promissory note for the amount. No English authorities in support of their contention were cited on the part of the defendants, and the American authorities referred to cannot avail them, as from them, it appears that the Courts there have adopted a rule on the subject different from that in force in the English Courts. In Fowler v. Bush, 21 Pickering's E. 230, Shaw C. J., said : " The rule of the common law differs from that of this commonwealth ; here from the fact of giving and accepting a negotiable note for a simple contract debt, we, without further evidence, construe it to be payment, but the common law deems it collateral security." The onus probamdi of the issue being on the defendant by the English law, the learned Judge's charge was in my opinion correct. The rule nisi must be made absolute. As the -counsel for the plaintiff did not desire it, I have abstained from considering any other question than that raised by the rule, which I have therefore made absolute in its terms. I cannot help thinking it would have been more for his interest to have had a hearing on the case at the same time, as thereby a reference to another jury might possibly have been rendered unnecessary, a course the defendants were willing to acquiesce [in. The question of costs on this rule will be reserved for the present. McNEIL v. BEATON, et al. Plaintiff brought suit against defendants as administrators of the estate of John Beaton to recover an amount due on an account stated and interest, and obtained judgment by default, no answer having been put in; after which it was referred to a master to ascertain the amount due. At the investigation all the partie were represented by their respective attorneys, and the master reported a sum due by defendant. Some of the defendants having objected to the report, on the ground that many of the charges comprised in the settlement had been originally entered against another party, and that no right of action existed against John Beaton's estate; Held, that the objection was not now open, but should have- been taken in an answer to the writ. EQUITY. 145 Ritchie, E. J., delivered the judgment of the Court: — This suit was brought by Malcolm McNeil against Donald Beaton, and John McDonnell and Mary Beaton, administrators and administratrix of the estate of John Beaton, to recover an amount alleged to be due him on an account stated and settled by Donald and John Beaton and interest. The defendants have not put in answers denying their liability and defaults have been marked against them. In the absence of any defence by answer or demurrer, the only question to be settled is the amount now due. To ascertain this, there has been a reference to. a master, and after an investigation before him at which all' the parties, plaintiff and defendants were represented by their respective attorneys, he has reported that there was due the plaintiff by the defendants £111 - 15 - 5 ; equal to $447.08, with interest from the 8th October, 1872, amounting in the whole to $581.88 at the date of the report. No objection is taken to the report by Donald Beaton, but Mr. Thompson, on behalf of the other defendants, contends that though John Beaton was. present at, and acquiesced in the settlement, his administrators, should not be held liable, as from the plaintiff's books it ap- peared that many of the charges comprised in the settlement had been originally entered against Donald, and that no right of action existed against the estate of John Beaton. From the evidence returned by the master, it appears that John was the; son of Donald, and that they lived together up to the time of!.' the settlement, John being part of the «time a married man;. The plaintiff and Donald commenced dealings as far back as 1847, and the account continued in his name up to a compara- tively late period, when it was transferred to the name. o£ " Donald Beaton & Son." When the settlement took place,, accounts, whether entered against John or Donald, were trans- ferred to this account, and after giving them the credits to which they were entitled, the balance was ascertained and! entered thus : — " To balance due at settlement £111 - 15 - 5 ; " signed by Donald and John Beaton and witnessed 'by Daniel McNeil. If the representatives of John Beaton considered that he; 10 146 McDOUGAL, et al. v. HAWES, et al. was not liable for this debt though he concurred in the settle- ment, and intended to resist the payment, they should have put in an answer and therein set up their defence, and it is not now open to them. But if such a defence had been put in, it does not at all follow that it could prevail. The plaintiff's account was for work done by him as a blacksmith, and for goods sold to the family ; and living together as they did, we might not unreasonably conclude that both father and son participated in the benefit derived from both the work done and the goods furnished, and in the absence of all evidence to the contrary, this is to be inferred from their both of them joining in the settlement, each thereby recognizing his liability; and both of them have recognized their liability to pay interest. Their agreement to pay interest is specially set out in the writ, and there is not only no denial of their liability to pay interest by an answer, but Donald does not deny it before the •master. The plaintiff is entitled to a decree for the amount reported .due, by .the master with costs. McDOUGAL, et al. v. HAWES, et al. i Ihos. S. Crow, an ordained [Presbyterian minister, and David and Jacob Frieze 'Presbyterians and members of 'his congregation, purchased a lot of land in 1853 ■for the purpose of building a house of worship, and for a burial place for that ■part of the congregation residing in its neighborhood, and having erected at their own cost a place of worship, and (fenced in the land, conveyed the land and build- in 1854 to W. McDonald and other persons, thirty in number, by deed in which ; it was stated that the land had been purchased for a Presbyterian church and cemetery, and that the grantors had agreed to sell the land and church on the .same terms and for the same use as they held them. The deed proceeded to con- vey to the -said .thirty persons in fee simple thirty-eight forty-fifths of the land .and; buildings (reserving seven :forty -fifths to the grantors) to be held in common by the grantees, but as separate and sole owners of the pews on which their names were recorded on a plan annexed. The persons to whom the deed was given were then Presbyterians, and Mr. Crow was a minister of that Church, and after he ceased to officiate, a Mr. McLellan, who had been 'his colleague'and succeeded him, officiated there until 1871. He was a regularly ordained minister of the PreBbyterian Church, but about that time charges were preferred against him by his congregation. He first appealed to the Synod at '(Truro, but afterwards inti- EQUITY. 147 mated that he hkd joined the Congregationalists and was thereupon deposed, some of the congregation seceding with him. The plaintiffs, (as Presbyterians,) and the defendants, (as Congregationalists,) each party claiming the exclusive right to the lot of land and building, — Held that the intention of the parties being clear and unequivocal, that the house of worship was to be for the use of Presbyterians, the court must carry out that intention and could not recognize the right of the defendants, even if comprising a majority of the congregation to defeat such intention, though it might be otherwise if the congregation were unanimous. DOUGLAS, ET AL. V. HAWES, ETAL. Caleb Putnam conveyed a lot of land to the persons named in the deed for the purpose of building a Presbyterian Church and for a burial ground, to hold to the said grantees for the aforesaid purpose only. Held, that even should the grantees unanimously concur in changing the use of the property from that of a Presby- terian Church, &c, such change could not be effected, but the property on being applied to other uses than those for which it had been conveyed, would revert. Objection having been taken that the proceedings should have been by informa- tion in the name of the Attorney General, — Held, that the plaintiffs had rightly proceeded by the writ substituted in this Court by statute for the bill in Chancery, and that although the writ stated that plaintiffs were acting on behalf of all the Presbyterian members of the congregation, even that was not necessary, as they might under R. S. Cap. 95, Sec. 19, have maintained the suit on their own behalf alone. The statement was made in both -writs that by certain legislation the title to the lands in question was vested in the Presbyterian Church of Canada, but the legis- lation reterred to did not affect the title to the property in question in these suits. Defendants not having demurred to the writ. — Held, that they could not reason- ably ask to have plaintiffs turned out of Court because the Presbyterian Church was not a party to the suits when the Court was satisfied that it could not be made a party, and that the proper parties were -before the Court. Ritchie, E. J., delivered the judgment, of the Court: — These cases being in many respects similar were argued to- gether, but as they differ in some particulars I will consider them separately. The facts upon which both .of the cases de- pend are few and simple, and in my view very much of the evidence which has been taken is irrelevant. The first named suit relates to a place of worahip and .ceme- tery at a place called "Five Mile River," and from the evidence it appears that on the 1st August, 1853, George Dow and wife, by deed of that date, conveyed to Thos. S. Crow, David Frieze 148 McDOUGAL, et al. v. HAWES, et al. and Jacob Frieze, their heirs and assigns, a lot of land about six miles from the village of Maitland, Thos. S. Crow being then an ordained Minister of the Presbyterian Church at Maitland and David and Jacob Frieze being Presbyterians and members of his congregation. The lot was purchased by them for the purpose of building a place of worship and for a burial place for the use of that part of the congregation residing in its neighborhood. The grantees subsequently erected at their own cost a place of worship and caused the land to be fenced and thereafter, on the 24th August 1854, Thos. S. Crow and David and Jacob Frieze conveyed the lot with the building erected thereon to Wm. McDougal and certain other persons, thirty in number. In the deed which they gave it was stated that they had purchased the lot as a site for a Presbyterian Church and Cemetery and had erected a church thereon and pewed it and finished it fit for occupation as a place of Public Worship, that it contained thirty-eight pews on the ground floor, with a desk and pulpit and seven pews in the front gallery, agreeably to a plan annexed, that the land and church had cost them £246, that the land had been purchased and the house erected there- on to meet the wishes of the inhabitants of the vicinity and they had agreed to sell -said lands and church, or so much as might be required, in lots or pews on the same terms and for the same use as they held said land and church, that is as a Presbyterian Church and Cemetery, each purchaser to be sole owner of the pew or pews on which his name was written on the annexed plan with a fee simple title as tenant in common to the whole premises in proportion to the relative first cost of each pew as marked on the said plan as compared with the cost of the whole premises. The deed then went on as follows: — " Now, know all men by these presents, that we Thomas S. Crow, David Frieze and Jacob Frieze, for and in consider- ation of £226 lawful money of Nova Scotia to us in hand well and truly paid the receipt whereof is hereby acknowledged, have, for ourselves, our heirs and assigns, bargained, sold, enfeoff- ed, released and confirmed, and by these presents do bargain, &c. unto William McDougali, Jr.," and twenty-nine other per- sons named, " and their heirs aaad assigns forever, thirty-eight forty-fifth parts of the foregoing described Lot and Church EQUITY. 149 thereon erected as tenants in common of said thirty-eight forty-fifth parts of said lot of land and with us in the remaining seven -forty-fifth parts, together with thirty-eight forty-fifth parts of said Church but as separate and sole owners of the pews, nevertheless, on which their names are respectively re- corded on the aforesaid annexed plan ; to Have and to Hold the said lot of land and premises, &c, unto the afore-mention- ed persons their heirs and assigns forever ;" after which follow a covenant that the grantors had a good right to sell, and a warranty of the title to the grantees. Mr. Crow officiated as Minster at Five Mile River as well as at Maitland, previous to 1853, and afterwards officiated in the Church in question which continued to be used by Presbyterian Ministers without interference till the third day of September last, when, for the first time, the right to do so was resisted. After Mr. Crow ceased to officiate a Mr. McLellan, who had been his colleague and succeeded him, officiated there and continued to do so till 1871. He was a regularly ordained Minister of the Presbyterian Church, but about that time he had some differ- ence with his congregation, and charges were preferred against him. He first appealed to the Synod at Truro but afterwards intimated that he had joined another denomination, (the Con- gregationalists), and he was deposed ; some of his congregation seceded with him. Though Mr. McLellan does not appear to have been ordained a Minister of the denomination he then joined, he continued for some time after to preach in the church, and, after he left, Congregationalist Ministers preached there as well as Presbyterian, but no conflict took place, as they used the building at different times of the day. This continued till September last, when the difficulty arose which led to this suit in which the plaintiffs, as Presbyterians, and on the behalf of the rest of the Presbyterians interested, and the defendants, as Congregationalists, each claim the exclusive right to the lot of land and building. The evidence clearly shews that when the deed was given the congregation and the persons to whom the deed was given were Presbyterians, and that Mr. Crow was a Minister of that Church; the attempt to prove the contrary entirely failed. All the persons who claimed a right to officiate there were Presby- 150 McDOUGAL, et al. v. HAWES, et al. terians till the secession of Mr. McLellan and some of his congregation. If by the deed the church and lot of land were held for and on behalf of Presbyterians alone, no possession or anything that has occured since can have affected their right to them. The contention that'Congregationalists and Presby- terians are so identical in doctrine that they cannot be deemed different denominations, is out of the question ; it is more relied upon in the answer of the defendants than it was by their counsel at the hearing. There is obviously no foundation for such a contention, and the introduction of evidence to show the intention of the parties to the deed, in opposition to the terms of it, cannot be of any avail ; the instrument, must speak for itself, and the whole question turns- on the construction to be put upon its language and the effect to- be given to it. The deed is so unusual that it would be vain to look for precedents of decisions on instruments couched in similar terms, so that in interpreting it we must be guided by general principles applicable- to it. The grantors convey to thirty persons in fee simple thirty- eight forty-fifths of the land and buildings, reserving seven forty-fifths to themselves, to be held in common by the grantees, but as separate and sole owners of the pews on which their names are recorded on the annexed plan. The intention of the parties to. the deed and the purposes for which it was to be held and used are clearly expressed. It is therein stated that the land had been purchased and the building erected by three individuals, (all of whom it is in proof were Presbyterians, and one of them a Minister of that denomina- tion). They agreed to sell an interest in it to the grantees, who were their co-religionists, not absolutely so that it could be- used by them for any purpose, or so that they could insist upon a partition, and hold their shares in severalty, but for one only purpose, for a Presbyterian Church and Cemetery, the only several ownership being in the particular pew or pews indicated to each of the grantees on the plan ; but that ownership could only have been intended to have been a limited one, for it never could have been contemplated that the owner could put the pew to any use he pleased, or occupy it otherwise than as a pew in a church which had been desig- EQUITY. 151 nafced as Presbyterian, or to confer on him a right to authorize the use of the pulpit by Ministers of other denomination of Christians against the will of the other pew-holders. The intention of the parties to this deed as to the use of the House of "Worship being for Presbyterians, and for them exclusively, is clear and unequivocal, and I know of no prin- ciple of law or equity to prevent effect being given to that intention ; and this Court must carry it out, and cannot recog- nize the right of the parties, even though they should compose a majority of the congregation, to disregard such intention, and to say, "we have joined another, denomination, and the place of worship hereafter shall be for the use of that denom- ination, and you, the minority, must join it or find a place of worship elsewhere." The grantees accepted the deed on con- dition that the house of worship should be used as and for a Presbyterian Church, and the grantors conveyed the property on that condition, reserving to themselves a certain interest. To exclude the grantors and such of the grantees as remain Presbyterians from the use of the building as a Presbyterian ■ house of worship, because some of the grantees have changed their opinions in church government, would be great injustice. If all parties interested, grantors and grantees, had been unan- imous on the subject, and had all concurred in the change, no injustice would be done, and I see no reason why, in that case, such a change in the trust, could not legally be made ; but that is not the question now before the Court. In the Atty. Gen., v. Mnnro, 2 DeG, & S., 122, money had been subscribed for the purchase of land, and for the erection of a Presbyterian church and schoolhouse, which was settled upon trust for the the worship and service of God, according to the rites and usages of the Established Church of Scotland- the service to be conducted by a minister belonging to, and in full communion with the same church. Such a minister was ap- pointed, who afterwards seceded to the- Free Church. It was. contended that there was no difference in doctrine between the- two churches, and a large majority of the congregation concur- red in the views of the minister and seceded with him. The court held that he was no longer competent to fill the office.. The Lord Chancellor, in giving judgment confirming, that of 152 DOUGLAS, et al. v. HAWES, et At. the Vice Chancellor, said : " The trusts of the deed are clear and explicit. Those who were interested in the establishment of the church had an undoubted right to stipulate as between themselves, and so long as there are any persons claiming the benefit of such trusts the Court is bound to secure and enforce the performance of them;" and hi Broom v. Summers, 11 Sim., 353, land was held in trust for the trustees and the rest of the congregation of Protestant dissenters of the Presbyterian per- suasion and the minister and some of the congregation severed themselves from the Presbyterian mode of government. It was urged that a very large majority adhered to the minister and that the doctrines, principles and form of worship were the same. The Vice Chancellor said, "it is not admitted that the congregation has the same church government and discipline, which are matters of great importance with Presbyterians ; the minister and the persons who adhered to him have altogether seceded from that church, and consequently do not answer the description of the congregation for whose benefit the land was granted." The cases of Foley v. Wontner, 2 Jac. & W., 247, and Attorney General v. Pearson, 3 Merivale, 400, and 7 Sim., 290, are to the same effect, and support the view I have taken of this case. The suit of Douglas et al. v. Hawes et al., also depends on the effect to be given to the deed under which the land in ques- tion is held, and on that alone. The deed is from Caleb Putnam to the persons therein named, of a lot of land for the purpose of building a Presbyterian Church and for a burial yard, to hold to them for the aforesaid purpose only. These words are explicit, and their meaning unmistakable. The grantor reserved no interest to himself in the Church, as the grantors did in the other case, but he annexed a condition to his grant, that the land conveyed should only be used as a site for a Presbyterian Church and a burial place. If, therefore, in this case, the congregation, including the whole of the grantees, should unanimously concur in changing the use of the building from that of Presbyterian to Congregational, Church of Eng- land, or Koman Catholic, or any other religious body, they ■could not confer on such denomination a title or right to the property ; — it might, on its being applied to other uses than EQUITY. 153 those for which it was conveyed, be claimed by the heirs of the grantor as reverting to them. It was objected that the proceedings should have been by information in the name of the Attorney General, but this is not a case where that officer need be, or ought to be, a party. The Crown had no interest in the matter in litigation, nor the public at large ; both the cases depend on the construction of deeds and the parties interested in the questions involved are the proper parties, and the proceedings should be by the writ which we have substituted for the Bill in Chancery and not by information. In Milligan v. Mitchell, 3 Myl. & Cr., 72, the pewholders and members of the congregation for whose use a chapel was held in trust for religous services were permitted to maintain a suit on behalf of themselves and all others of the congregation, because the object of the suit was for the common benefit of all the members except the offending trus- tees. There the objection that the Attorney General ought to have been a party, and that the proceedings should have been by information was taken, but was overruled ; and there are many other cases to the same effect. In Davis v. Jenkins, 3 V. & B., 154, the Lord Chancellor said: "The question, what is that species of suit which must be maintained by information and cannot proceed by bill is a point of great difficulty. It is not true, as has been contended, that when the subject is a public right the suit must be by information." If the pro- per parties are not brought before the Court in the suit the course for the defendant to pursue is to take advantage of it by demurrer if the want of the proper parties appear on the writ, and if it does not, by plea, and not to suffer all the expense of taking evidence and preparing for the hearing and then raise the question, — that will only be allowed when the defect is of such a character that a decree could not be given or complete justice could not be done without other parties whose rights might be prejudiced, which is not the case here. The writs in both suits state that the plaintiffs are acting not only for themselves but also for all the Presbyterian members of the congregations. It does not follow that the suit might not be maintained if brought by the plaintiffs on their own behalf alone. Cap. 95 of the Revised Satutes, Sec. 19, enacts that no 154 In re MONTGOMERY, An Insolvent. defendant in any suit shall be permitted to object for want of parties in any case to which the following rules extend ; — the 4th rule is, "any one of several persons for whom a trust is held under any deed or instrument may without including any other of such persons have judgment for the execution of the trusts of the deed or instrument ;" but quite independently of this enactment the parties interested in the subject of the suits are sufficiently before the Court. There is a statement in both of the writs which would pro- bably have sustained a demurrer, to the effect that by certain legislation which had taken place the title to the lands in question had been vested in "the Presbyterian Church of Canada," but on being referred to the acts alluded to, it ap- peared that they had no such effect but left the title to these properties in their original owners. The effect of a demurrer if such a course had been pursued would have resulted in an amendment by striking out the statement in the writ. At the close of the argument Mr. Rigby, in his reply, asked leave to strike it out. I declined to allow the amendment then as the defendants' counsel had retired, but at his request made a note of his motion. The defendants not having resorted to a de- murrer, cannot reasonably ask to have the plaintiffs turned out of Court because the Presbyterian Church in Canada is not the party bringing the suits when the Court is satisfied it could not properly be made a party and the parties actually bringing the suits are the proper parties. In re MONTGOMERY, An Insolvent. The Insolvent conveyed certain property to Wylde, Hart & Co. by an instru- ment, reciting that he had agreed to give them security on all his real estate, plant and machinery, in the City of Halifax, and after conveying certain lands he conveyed " all that and those the machinery, implements and things specified in the schedule hereto annexed, which schedule was headed, "Plant in the Machine Shop," and was found to contain, not stock on hand or articles manu- factured, but only such articles as would come under the designation of machinery, 'mplements and things of that sort. A subsequent part of the instrument, pro- vided that all the machinery, implements and things which, during the eontinu- EQUITY. 155 ance of the security, should be fixed or placed in or about the land described ia addition to or substitution of the said machinery, implements and things describ- ed in the schedule annexed, should be subject to the trusts, &c. expressed in the instrument. Held, that under the instrument, only the things enumerated in the schedule annexed, or those added to or substitutad for them, passed to Wylde, Hart & Co., and that the word "things," could not be held to embrace the general stock in trade, hut must be limited to property ejusdem generis with that described in the words preceding and connected with it. The word "plant," denned as applied to a manufactory. Ritchie, E. J., delivered the judgment of the Court: — The question involved in the case which has been submitted to the Court depends on the construction to be put upon the words used in the conveyance made by the Insolvent to Messrs. Wylde, Hart & Co. the claimants ; the assignee of the insolvent contending that the articles enumerated in a schedule annexed to the conveyance, headed " Plant in the Machine Shop," only, passed to them, while Messrs. Wylde, Hart & Co. contend that, in addition to these, a large amount of property consisting of stock in trade and other articles, which the insolvent had on hand at the time of his insolvency, a schedule of which is produced, also passed to them under the terms of the conveyance. The instrument recited that the insolvent had agreed to give them security on all his real estate, plant and machinery in the city of Halifax, and, after conveying certain land described therein, he conveyed " all that and those the ma- chinery, implements and things specified in the schedule here- unto annexed," to Have and to Hold them to the said machinery implements and things. In a subsequent part of the instru- ment these words are used : " It is further declared and provided, that all the machinery, implements and things which during the continuance of the security shall be fixed or placed in or about the lots of land herein before described, in addition to and in substitution of the said machinery, imple- ments and things described in the schedule hereto annexed, shall be subject to the trust, powers, provisos, and declara- tions in these presents expressed and contained," after which follows a provision that if any of the machinery, implements or things assigned should be removed without the leave of 156 . In re MONTGOMERY, An Insolvent. the claimant, or if legal proceedings should be taken or judg- ment entered against the insolvent, or any application should be made to make him an insolvent, or if he should die, or be- come incapable of conducting his business, or in case payments should not be made at the times specified, it should be lawful for them to enter and take possession of the said plant, ma- chinery, implements and things or any other plant, machinery, implements and things which have been added thereto or substituted therefor. It appears to me very obvious from the terms of the . instrument what the parties intended should pass under its The recital says that the insolvent intended to give the claimaints security on all his plant and machinery, and he then proceeds to convey to them all the machinery, imple- ments and things specified in the schedule thereto annexed, which schedule is headed, " Plant in the Machine Shop ; " and on turning to it we find it to contain, not stock on hand or articles manufactured, or in the course of manufacture, which, in the course of business would come and go, but only such articles as would come under the designation of machinery, implements and things of that sort, which would be expected to remain on the premises for the carrying on of the business, and without which it could not be conducted ; and provision is made that if additional machinery, &c. should be brought in or other things substituted for those in the schedule, they should become subject to the conveyance. At the argument, much stress was laid on the comprehen- siveness of the word "things," as embracing all personal property of every description, but if we should be justified in disconnecting that word from those which precede it, we find it expressly connected with those that follow, " things specified in the schedule annexed." We are, however, not at liberty to consider them unconnected with what goes before, for it is a well understood rule of construction that where general words such as " goods " or " chattels " or " effects " or " things " are pre- ceded, and connected with words of narrower import they will be confined to property ejusdem generis with those pre- viously described. Mr. McDonald, to meet this difficulty, con- tended that the word ' plant ' used in the conveyance included EQUITY. 157 stock in trade and goods manufactured or in the course of man- ufacture on the premises. I cannot concur with him. ' Plant', when used in reference to a manufactory was probably applied in the first instance only to such apparatus or machinery as was affixed to the premises, but a more extended meaning seems now to be given to the word, and the plant of a manu- factory embraces all the apparatus or machinery, whether fixtures or otherwise, by means of which the business is carried on. I am therefore of opinion that the articles in the printed schedule annexed to the case did not pass to the claimants under the insolvent's conveyance to them. In re O'MULLIN & JOHNSTONE. H. & M. McDonald made a bill of sale of personal property, dated July 5th, 1876, conditioned for the payment of $ 400 on the 5th July, 1877, and became insolvent 24th April, 1877. On the 8th June, 1877, to avoid leaving the property on the premises as a lien for rent, which accrued on the 12th of June, the insol- vent's assignee and the holder of the bill of sale, after each advertising a sale of the property to which the other objected, agreed that it should be sold, reserving the proceeds for the adjudication of the Court. Held, that the holder of the bill of sale was entitled to the proceeds, which were less than the amount due him, but that the decree should be without costs as the controversy had arisen out of an asserted right to Boll which did not exist in either party. Ritchie, E. J., delivered the judgment of the Court : — ' This is a case submitted without pleadings. The case states that Johnstone obtained from H. & M. McDonald, hotel-keepers, a mortgage of all their household furniture for an advance of money to enable them to purchase it. The mortgage contained a proviso that it should become void on their paying him $400 with interest, in one year from jts date, which was the 5th July, 1876. On the 25th April, 1877, H. & M. McDonald became insol- vent and on the 18th May following, O'Mullin having been appointed creditors' assignee, the assets of the insolvents were duly transferred to him. At the time of their insolvency they had a lease of the Hotel which contained the furniture, for one year, from the 12th June, 1876, at a rent of $450, payable half- 158 In ee O'MULLIN & JOHNSTONE. yearly ; no rent was then in arrear and none would become clue till the end of the year. On the 1st June, 1877, Johnston, advertised the furniture for sale, claiming a right to do so under his mortgage, and on the 3rd June O'Mullin advertised it, claiming a right to sell it as the assignee of the McDonalds. Each party protested against a sale by the other, when it was mutually agreed between them that the property should be sold on the 8th June, each reserving his right to claim the proceeds of the sale, and none of it was removed from the Hotel till about the time of the sale. The proceeds of the sale were $240.G0 and the claims of the parties to this amount are submitted for adjudication. The mortgage conferred on Johnstone the title to the pro- perty in question subject to the McDonalds' right to redeem by paying him the amount due, and his title was in no respects affected by their insolvency, the assignee merely acquiring the right to redeem ; and he had no more right to dispose of the property than McDonalds would have had if they had not become insolvent. But, until the lapse of a year from the date of the mortgage Johnstone had no right to sell. If the McDonalds had sold the property before the insolvency or O'Mullin had done so after it, Johnstone could at once have brought an action for the recovery of the property or the pro- ceeds of the sale ; for by thus disposing of the property they would have forfeited their right to the possession of it, which they were otherwise entitled to under the mortgage. O'Mullin was bound to respect Johnstone's rights, and should either have redeemed the property by paying the amount due on it, or have sold the equity of redemption merely ; or he might have allowed the matter to remain in in statu quo till the time specified for its redemption. It was argued that if neither Johnstone nor O'Mullin had interfered with the property till the rent became due, and it had remained in the hotel, the landlord could have distrained for his rent. It is enough to say that it did not so remain, and until the rent fell due the landlord could have no lien whatever on it. Johnstone and the McDonalds, before the insolvency of the latter, could have agreed that a sale of it should take place, and subsequently to the insolvency Johnstone EQUITY. 159 and O'Mullin could do so, and on the sale and removal of the furniture, the landlord could not look to it for payment of rent which subsequently accrued. The only right which the land- lord has is to distrain on whatever property is found on the premises at the time the rent falls due. There was no obliga- tion on any of the parties to keep the property there till then to enable him to distrain upon it. I fail to see any ground whatever for the contention that under the insolvent act a lien is created in favor of the landlord for rent not due at the time of the insolvency ; the controversy, however, in this case is not between the landlord or O'Mullin, acting on his behalf, and Johnstone, but between O'Mullin on behalf of the credit- ors of the McDonalds, generally, and Johnstone the latter is entitled to the proceeds of the property of which he was the owner. The decree will, however be without costs, as the controversy in the first instance arose out of the claim of a right to sell by each of the claimants, when at the time no right to sell existed in either, but the concurrence of both was then required to make a valid sale. Had there been a surplus after the payment of Johnstone's claim, O'Mullin would of course have been entitled to it. THE QUEEN v. CUTLER and others. Matthew Walsh, by his will, directed that his real estate, after the death of his widow, should be sold, and the proceeds placed at interest, to remain and be a perpetual fundy and -that when the principal and interest together with other donations which might happen should amount to £1000, the annual interest of sa : d £1000 should be applied " for the purpose of aiding the inhabitants of the township of Guysboro' to maintain a free Grammar and English school in said •township, or establish the same into an academy at the discretion of his trustees, for the benefit of said township." The testator died in 1822, his widow surviving bim, after whose "death the property was sold by the trustees, and an information was filed at thelrfsfahce of the trustees of School Section No. 1, (which embraced the whole towu,pf:-Gnys8oro, but constituted only one of nineteen school sections included in the-township,) to obtain a decree requiring the defendants to pay the proceeds of the real estate to the relators to aid in the support of the County Academy and free Grammar and English Sohool established in the town of Guys- boro under the free school law. The court directed that the fund should be held 160 THE QUEEN v. CUTLER and others. till it accumulated to the amount specified, and that the interest arising from it should then be applied to the support of the County Academy, assuming that it should continue, as it then was, free to all the inhabitants of the township. The object of the Information filed in this case by the Attorney General at the instance of Thomas Condon and others, trustees of School Section No. One, of the county of Guysboro' is to obtain the decree of this Court requiring the defendants, as trustees under the will of Matthew Walsh, deceased, to pay the proceeds of certain real estate in their hands or under their control to the relators to aid in the support of the County Academy and free Grammar and English School now establish- ed and in operation in the town of Guysboro. The testator, who fomerly resided in the township of Guysboro', by his last will, bearing date the 26th May, 1818, disposed of his real estate after the death of his widow to whom he had given the use of it during her life, in these terms : that it should " be sold at public auction, and the means arising from such sale " after payment of his debts, " be placed at interest in some good public fund and remain and continue forever at interest, and be a perpetual fund, and when the principal and interest together with other donations which might happen, should amount to the sum of one thousand pounds, that then and not till then the annual interest of the said thousand pounds should be applied annually for the purpose of aiding the in- habitants of the township of Guysboro' to maintain a free Grammar and English School in the said township, or establish the same into an Academy, at the discretion of his said trustees for the benefit and advantage of the rising generation of said township."* The testator died in the year 1822 and his widow has since died, and, the real estate having been sold, the proceeds are now held by Messrs Cutler & Hartshorne two of the respond- ents, the amount of which with an accumulation of interest is about sixteen hundred dollars. The relators contend that as provision is now made by law for the maintenance of free •These provisions are quoted not from the will, which the Reporters were unable to obtain, but from deeds of the property in which they are recited. As cited here they seem to embody the terms of the codicil referred to in a subsequent para- graph of the judgment. EQUITY. 161 schools throughout the province which may prevent the re- spondents from strictly and literally carrying out the testator's intentions in a manner they otherwise might have done, yet his wishes could be practically fulfilled by their applying the fund in' maintaining and supporting the Academy, Grammar and English School in" Guysboro'. The evidence shows that the township of Guysboro' includes within its limits eighteen school sections in addition to No. One, which, though it embraces the whole of the town of Guysboro', forms but a small portion of that township; that the Academy referred to has been in operation ten years, and was built with money assessed on Sec. No. One ; admission to it is free to all the children of the county, sufficiently advanced to enter. There are preparatory and elementary schools connected with it, and there is no other institution of a like character in the county. Though free' schools are now established by law throughout the "province, which was not the case when the testator made his will, it does not appear to me that this change would necessarily prevent the trustees from fulfilling the trusts of the will in accordance with the testator's intention, for his object was to assist the inhabitants of the township of Guys- boro' in obtaining a higher class of school for their children ; and as only a portion of the funds for the support of the public free schools is supplied from the provincial treasury, the remainder being payable by the inhabitants, which would be greater or less, according to the character of the school and the attainments of the teachers, a better school could be secured at less expense to the inhabitants by the application of these funds to that object. By the codicil, the testator authorizes the application of the interest to the support of an academy, if the trustees should think fit ; if, therefore, a difficulty exists as to applying it to the support of a school exclusively confined to the town of Guysboro', on account of the gift being made for the benefit of the whole township, the trustees should contribute the amount to the support of the academy which is open to all those whom the testator has designated as the objects of his bounty. If this is not literally within the terms of the will.,, and the 10 a 162 In re ESTATE OF JAMES W. ROOP. doctrine of c 'y pres is to be resorted to, that course must be adopted as that which will as nearly as possible meet the testator's views and carry out his wishes. It appears to me, however, that in whatever way the fund is to be applied, there is nothing to prevent the trustees from keeping it invested till the amount shall reach £1000, either by the accumulation of interest or other donations for the same object. This clearly expressed intention of the testator must be respected, and when the specified amount shall be attained, the interest and profits arising therefrom will thereafter be applied by the trustees towards the support of the Academy at Guysboro', assuming that it shall continue free to all the inhabitants of the township. In re THE ESTATE OF JAMES W. ROOP. The granting of actarinistration de bonis non to the widow of the deceased was appealed from by his daughter, on the ground that the administratrix had been guilty of waste on the lands set off to her as dower. It appeared from Respond- ent's affidavit that, whether her aots amounted to waste or not, she considered (herself justified in the course she had pursued. Held, that as there was nothing to indicate such dishonesty on the part of the widow as should preclude her from =all right to the administration, the Court could not control the discretion con- ferred by the act on the Judge of Probate. The Court will notconsider other grounds of appeal than those contained in the ■statement filed in the registry of the Probate Court. Ritchie, E. J., delivered the judgment of the Court : — The question involved in this case, which is an appeal from Ahe decision of the Judge of Probate at Digby, is, whether the granting of administration de bonis non to the respondent as tthe widow of the deceased, in preference to the appellant, his .daughter, was justifiable under the circumstances. The ground ■of appeal is thai the respondent was not entitled to adminis- tration iinasmueh as she had been guilty of waste on the lands set off to her as dower. There are indeed six grounds set out ; they all, however, resolve themselves into this one. Several EQUITY. 163 other objections were taken at the argument, but as, by the statute regulating appeals from the Probate Court, the appellant is required to file in the registry of that Court a statement of the grounds on which the appeal is sought, I am of opinion that I am precluded from considering any other. It appears from the evidence that James W. Roop, the husband of the respondent, died intestate in the year 1869, possessed of real and personal property of considerable amount, leaving the respondent, his widow, and two children, Christopher Roop and Catherine,wife of Timothy Titus. Administration was granted to Christopher who entered upon the duties of the office and took possession of the estate and effects of the deceased and collected debts due to him. After the real estate had been divided and the dower set off to the widow, Christopher died in June 1872, leaving the estate unsettled. At present the interest of the appellant and the respondent in the estate unadministered is equal, as Chris- topher left children, each being entitled to one third. The waste complained of as committed by the respondent consisted in taking away wood and timber from the dower lands beyond what was necessary for the use and consumption of the widow on the premises. The acts alleged against the respondent are more distinctly admitted by herself in her affidavit than testi- fied to by any of the appellant's witnesses, who mostly speak from hearsay ; and while she fully admits all the acts charged against her as waste, the inference to be drawn from her state- ment is that, though they should amount to waste and the heirs may be entitled to redress against her in consequence, she thought herself justified in the course she pursued. We have now to consider whether this conduct on the part of the respond- ent precluded the Judge of Probate from granting administra- tion to her. Our statute regulating the granting of administration of intestate estates, like that in force in England, declares that it shall be granted to the widow, or next of kin, or both as the Judge shall think fit. From the words of the act it would seem , to be left to the Judge's discretion to grant administration either to"the wife or next of kin, but/under ordinary circumstances, a preference has always been given to the widow. See Williams order should be discharged irrespective of the sufficiency or EQUITY. 245 insufficiency of the defendant's answer, it is not necessary at this stage of the case to say more than that in some particulars it does not give as full and explicit answers as the plaintiffs are entitled to, and if they shall elect to prosecute their suit in this Court for relief, the subject can be brought before me, and I will decide on the exceptions and on what points the plaintiffs are entitled to a further and better answer. WICKWIRE v. GOULD. The Wickwire dyke, being outside of and affording protection to the Grand Pre dyke constructed many years before, the proprietors of the Wickwire marsh, acting under the provisions of the statute then in force, (see R. S. Cap. 40, s. 27) took proceedings to settle what proportion of the expense of the maintenance and repair of the Wickwire dyke should be contributed by the proprietors of the 6rand Pre Marsh, which sum so settled was annually paid by the proprietors of the Grand Pre Marsh so long as that marsh received any protection from the outer dyke. In 1869 a heavy gale and unusually high tide broke the outer dyke and submerged the Wickwire marsh, and it was not until 1871 that the dyke was reconstructed. Held, that the proprietors of the Grand Pre marsh could not be called upon to contribute towards the repair of the Wickwire dyke beyond the annual sum originally settled. Defendants having contended that they could not be required to contribute at all, as their marsh was only partially enclosed and not protected by the Wickwire dyke; and further, that there had been irregularities in the original proceedings; Held, that having acquiesced in the annual payments for upwards of twenty- five years they could not now raise such a question, and that the alleged irregu- larities could only have been taken advantage of by certiorari* Ritchie, E. J., now, (June 11th; 1877,) delivered the judg- ment of the Court : — The marsh known as the Wickwire marsh was reclaimed from the sea and enclosed by a dyke many years ago. This dyke enclosed land outside the Grand Pre marsh, which had been reclaimed from the sea previously, and was then protected by a dyke which now divides the two marshes. Some time after the erection of the dyke by the proprietors of the Wick- wire marsh, the latter, acting under the provisions of a statute *This decision was confirmed on appeal to the full Court. See reports for 1878-9.. 246 WICKWIRE v. GOULD. then and still in force, took proceedings to settle and declare- what proportion or degree of benefit had accrued or was likely to accrue to the Grand Pre marsh from the dyke erected by them outside of it, and what proportion of expense the pro- prietors of the Grand Pre marsh should annually contribute and be assessed for towards the maintenance and repair of the Wickwire dyke ; and a sum to be annually paid was accord- ingly settled, which the proprietors of the Grand Pre marsh paid and continued to pay as long as that marsh received any protection from the Wickwire dyke, and are still willing to pay. In the year 1869 a heavy gale and an unusually high tide broke the outer dyke and the Wickwire marsh was submerged. The damage thus occasioned was so great that it became ques- tionable whether it would be worth while to repair or recon- struct it, or whether it would not be better to let the land remain as salt marsh; and it was not until 1871 that it was repaired or reconstructed. The evidence shows that the injury to the dyke was very extensive, but it cannot be said to have been wholly destroyed, as is asserted by the plaintiffs ; and the damage was increased by the delay which took place in repairing it. A question is raised, and it is in my opinion that on which the whole case turns, whether the proprietors of the outer marsh can, whenever their dyke sustains damage and requires repairs, it may be to an unusual extent as in this case, seek an increased assessment and contribution from the proprietors of the inner marsh, as the plaintiffs contend, from time to time, or whether, as the defendants contend, the amount being once fixed on the erection of the dyke, that is to remain thereafter without alteration. This depends upon the enactments on the subject, and the enactments which were in force when the amount to be paid by the proprietors of the Grand Pre marsh was first settled and declared have been ever since and are still in force. The provisions of the Statute are to the effect that where any lands enclosed by dykes shall by other dykes erected outside the same be enclosed and protected, the commissioners in charge of the lands enclosed by the outer dyke shall call a. EQUITY. 247 meeting of the proprietors of the whole level, &c, &c, &c, who shall elect not less than three nor more than five disinterested freeholders, who, being sworn before a Justice, shall determine what proportion or degree of benefit has accrued or is likely to accrue to the old or inner dyke and the land lying within the same from the new or outer dyke, and shall settle and declare the proportion of expense the proprietors within the old dykes ought annually to contribute and be assessed to- wards the maintenance and repair of the new dyke, &c, &c. If such outer dyke shall at any time cease in whole or in part to protect such inner dykes, the lands within the inner dykes shall not for such time contribute or be assessed to the support or repair of the outer dyke. If, at any time, two-thirds in interest of the proprietors of the lands within the inner dykes shall be apprehensive that the outer dyke is unsafe or out of repair, two-thirds in interest of the whole level may call upon one or more commissioners to examine the outer dyke, and, if it should appear to require repair, he or they, with the assent of two-thirds in interest of the proprietors of the whole level, shall forthwith cause the same to be repaired, or otherwise, with the like consent, put the inner dykes in a state of repair as shall seem most advis- able. If the inner dyke be repaired, then the proprietors of the lands enclosed thereby shall bear the expense. Those who erected a dyke outside a marsh which had been already dyked, but for the provisions of the statute, would have had to repair and keep it in repair at their sole expense. The intention of the Legislature, it appears to me, was that on the completion of the outer dyke resort should be had to the statute to ascertain and determine, taking one year with another, what would be a reasonable sum for the pi-oprietors of the inner marsh to contribute annually for the benefit which they derived from it, and with that amount so contributed by them the proprietors of the outer marsh were annually to assess themselves for whatever might be necessary to keep it in proper repair for the security of both marshes. Many years ago the sum of £19 was settled under the pro- visions of the statute as the sum to be so annually contributed, 248 WICKWIRE v. GOULD. which, up to 1869, has been annually paid, and which the defendants are willing and have offered to pay. Doubtless during the long period which has elapsed since this contribution was awarded the amount required to keep the dyke in repair in different years must have varied much ; in some it would probably be more than they ought to con- tribute towards it, in others less. If the Legislature had intended that they should pay a certain proportion of each year's repairs, they would have so enacted. There is nothing in the statutes which indicates that applications for contribution were to be made under it from time to time, or that the contribution was to be increased when extensive repairs should become necessary, whether from the inattention or negligence of the proprietors of the outer marsh, or from their not choosing to expend the funds necessary to keep the dyke in proper order to resist the influx of the tide or to prevent injury from gales of wind or extraordinarily high tides. After giving the subject my best consideration I am led to the conclusion that persons who reclaim lands outside of lands previously reclaimed and dyked can only call in operation the statute once and have no right to do so on every occasion that serious damage is done to their dyke calling for extraordinary repairs, however occasioned. The proprietors of the Grand Pre marsh had no right to- interfere and compel the owners of the Wickwire marsh to repair the dyke when it sustained damage in 1869, but they had to take care during the time that they chose to leave their marsh submerged that their own dyke was put and kept in order so as to exclude the sea from their marsh. It was contended on the part of the defendants that the proprietors of the Wickvvire marsh had no right to ask for any contribution from them, as, from the evidence, it appeared that their dyke only partially enclosed, and, in itself, did not protect the Grand Pre marsh, so that the statute did not apply ; and, also, that there had been irregularities in the course pursued by them in calling and conducting the meeting of the proprietors. But it is too late, I think, now to raise the question whether they are or are not liable to contribute under the statute, as EQUITY. 249 that has been settled years ago and acquiesced in and the annual payments made for many years, certainly upwards of twenty-five years; and any irregularity in the proceedings under the statute could only be taken advantage of by bring- ing them up to the Supreme Court by certiorari. Though I have arrived at the conclusion that the defendants are entitled to a decree in their favor with costs, I have not done so without much hesitation ; and it is satisfactory to me to know that if I have put an erroneous construction on the statute, which is not very clear and explicit in its terms, the plaintiffs are not without remedy. THE ATTORNEY-GENERAL v. BULLOCK et al. A testator bequeathed £2,500, to be invested in stocks, &c, the interest on £1000 to be paid to certain clergymen to provide fuel for the poor of their flocks during the winter ; the interest on £500 to be paid to the National School, and » like sum to the Acadian School, on condition of their each teaching at least twelve poor children; and the interest on £500 to be paid to the Institution for. the Deaf and Dumb to assist in educating the poor who might be thus afflicted. The Acadian and National Schools were afterwards superseded by the Free Schools established under the Act and supported by taxation. The Master to whom it was referred to report a scheme to carry out testator's intention reported that the sum bequeathed to the schools so superseded should be paid to the School Commissioners towards the erection of a High School in Halifax, under the Act of 1877, Cap. 39. Held, that as the poor were the objects of testator's bounty, his intentions would not be carried out by the scheme proposed, which would simply relieve the citizens generally of taxation, but that the bequest in question should be divided between the Institution for the Deaf and Dumb, and the Asylum for the Blind, (an analogous institution, but one not in operation when testator made his will), to assist in educating the poor inmates of those institutions. Ritchie, E. J., now, (Dec. 4th, 1877), delivered the judgment of the Court : — William K. Reynolds, late of Halifax, merchant, by his will made the following bequest : " It is my wish, as soon as it can conveniently be done after my wife's decease, that all my real estate be sold for the most that can be obtained, and the 250 THE ATT'Y-GENEEAL v. BULLOCK et al. proceeds applied as hereinafter named; from said proceeds I give the sum of two thousand five hundred pounds for objects of charity, this sum to be invested in some safe stock or mortgage security, under the name and title of the Eeynolds Fund, -the interest to be paid annually as herein- after named ; the interest of £1000 to be paid to the officiat- ing clergymen of St. Paul's, St. Luke's, and St. Matthew's Churches, to be equally divided, to enable those persons to give fuel to the poor of their respective flocks during the winter season ; the interest of £500 to be given to the trustees of the National School, for which they are to teach at least twelve poor children, and a like sum to the trustees of the the Acadian School, subject to the same conditions. I give to the trustees or superintendent of the School for the Deaf and Dumb, to assist in educating the poor who may be thus afflict- ed, the interest of £500." The widow of Mr. Eeynolds has since died, but, previous to her death, the National and Acadian Schools ceased to be in operation, having been superseded by the free schools estab- lished in Halifax and throughout the Province, and supported by taxation; the schools referred to having been supported by private contributions and the fees paid by certain of the scholars, the poor and destitute receiving their instruction gratuitously. The object of the present proceedings by the Attorney General is to obtain from the Court a decree whereby the charitable intentions of the testator may be carried out as nearly as possible, and to direct Mr. Bullock, the trustee, to pay the funds in his hands to such purposes as shall be best suited to give effect to the will of the testator, the schools named by him having ceased to exist, and the poor being pro- vided with instruction at the public expense. On its having been referred to a master to report a scheme best calculated to effect this object, he has reported that the charitable intentions of the testator will be most nearly carried out by the transfer to the Board of School Commissioners for the City of Halifax of the moneys devised by him to the National and Acadian Schools, to be appropriated and used in the erection of a building for the use of the High School EQUITY. 251 establishment in Halifax, under the Provincial Act of 1877, Cap. 39. If the encouragement of education in the City of Halifax had been the main object which Mr. Keynolds had in view in making the bequest, the scheme reported would be very well suited to carry it out. But such is not the case ; the objects of his bounty are declared to be the poor. He first provides that a portion of the fund he sets apart for charitable purposes shall be applied in providing fuel for certain of the poor of the city during the winter season, and the remainder he applies to the education of the poor in the schools referred to, and to the. school for the deaf and dumb, to assist in educating the poor who may be thus afflicted. Though the charitable intention of the testator will not be defeated merely because the mode of carrying it out has been defeated by subsequent circumstances which render it imprac- ticable, if the object he had in view can be obtained^ by another mode ; yet the charity must be the same or of an analogous character, and it is indispensable that it be charit- able. Any scheme, therefore, to be adopted by this Court must have in view not simply education, but education for the poor. The testator has expressly declared that his object in making the bequests was charity, and the scheme reported is not in any respect such. The sole effect of it would be to relieve the- citizens generally of the expense of building a school house which the law has imposed upon them, the greater part of which would necessarily fall on the more wealthy class. The primary object of the testator being to provide for the. education of the poor, the question naturally arises whether- there exists any class of poor requiring education who are unable to take advantage of the free schools now established by law. If so, it appears to me that his object will be attained by appropriating the fund to their support. The general inten- tion will thus be carried out substantially, though not in the mode pointed out by the will There are two institutions in the city at which such poor persons may receive instruction, — one for the deaf and dumb* and one for the blind. The inmates of these institutions are not able to receive instruction at the public schools, and no 252 THE ATT'Y-GENERAL v. BULLOCK et al. provision has been made for their education by the Legislature. The Asylum for the Blind was not in operation when the testator made his will, the other was, and it was one of those which the testator selected as the object of his bounty ; and it is not improbable that the other would have been selected if it had been then in operation. If the Institution for the Deaf and Dumb had not been mentioned in Mr. Reynolds' will I should have considered that applying the fund to the educa- tion of the poor there, and at that for the blind, would have carried out the charitable intention of the testator as nearly as possible under the circumstances, but his having made pro- vision for the education of the poor at the Institution for the Deaf and Dumb points to it and to its kindred institution for the blind, as those most suitable for the application of the fund by this Court. In the Attorney General v. The Iron Mongers' Company, 2 Beav., 313, Lord Langdale indicated that, in seeking for a charity on which to bestow a fund cy pres, reference could be had to other analogous objects of the testator's bounty; and Lord Cottenham in the same case on appeal, Or. & Ph., 208, says, " it is obviously true that if several charities be named in a will and one fail for want of objects, one of the others may be found to be cy pres to that which has failed." He goes on to say that such other charity ought not, as he conceives, to be preferred to some other more nearly resembling that which has failed ; and he protects himself against the inference that because the testator has made a charitable bequest in favor of one institution analogous to that which has failed, therefore the whole should go to it, if there should be others having equal claims. It is to be looked to only as a guide to what the testator would probably have done himself. His language is ; " in considering the manner in which such benefit should be conferred, it is very reasonable and proper to look to other provisions of the will in order to see whether the testator has indicated any preference to any particular mode of administer- ing charity. If the testator had given part of his property to support hospitals for leprosy, in any part of England, and another part to a particular hospital, it would be reasonable to adopt the support of hospitals as the mode of applying the EQUITY. 253 disposable funds; but there would not be any ground for giving the whole to the particular hospital." He subsequently says : " I think the most reasonable course to be adopted is to look at the second gift as indicative of the kind of charity preferred by the testator, but making it as general in its application as the first was intended to be, that is, open to all which might stand in need of its assistance." I think I am adopting this view of the law by decreeing that the interest of the fund set apart by the testator for the National and Acadian schools be equally divided between the Asylum for the Deaf and Dumb and the Asylum for the Blind, to assist in educating the poor inmates of those institutions, who, from their affliction, are shut out of the free schools pro- vided for the instruction of all other classes of the community. ATTOKNEY GENEEAL v. AVEEY, et al. Testator, who died in 1850, devised property to the Kirk Sessions of St. Mat- thew's Church, in trust to fit it up for a school under the charge of the Sessions- The property went into the possession of the devisees, but no steps were taken to carry out testator's intentions. Proceedings were instituted in the name of the Attorney General to obtain a decree authorizing the adoption of a scheme to carry out testator's intentions, the devisees and the heir-at-law being made parties. None of the defendants appeared and a default was entered. On application being made for reference to a Master the Court allowed the defendants to raise the ques- tion whether, the devisees having taken no proceedings, the property did not revert to the heir-at-law, who then appeared by counsel and had a day appointed for the argument, but on the day appointed for argument none of the defendants appeared and the cause was referred to a, Master, who reported that the funds should be appropriated towards the erection of a High School building in Halifax, the Kirk Sesions to have the power of nominating two free scholars, having con- curred iu the recommendation with that condition. No opposition being made to this report, and no counter scheme being suggested, the report was confirmed and the scheme adopted. Eitchie, E. J., now, (Dec. 4th, 1877,) delivered the judgment of the Court : — James Dechman died in the year 1850, having shortly before made his will, in which, after reciting that he was -254 ATT'Y-GENERAL v. AVERY et al. 'desirous that a school should be established under the superin- tendence and charge of the Kirk Sessions of St. Matthew's Church, in the City of Halifax, to be used either as a normal or training school, wherein the principles of sound morality and religion, as inculcated in the parochial schools of the Church •of Scotland, might be taught, he made the following devise ; (His Loedship here read the clauses of the will as set out in the writ, devising the property in question to certain members of St. Matthew's Church, composing the Kirk Sessions, upon trust that, as soon as convenient after obtaining possession of the property and raising a fund by voluntary subscription or in pursuance of a vote of the congregation, they should fit up and prepare the house for a public school, in connection with the said church, such school to remain continually under the supervision and care of the elders of the church from time to time composing the Kirk Sessions, and to be opened on each anniversary of the testator's birth-day with certain prescribed devotional exercises.) The property so devised, on the death of Dechman, went into the possession of the devisees, and the rents from time to time have been received by them, but no appropriation of them has been made, and no steps have been taken to carry out the intentions of the testator. The parties who have now the possession of the property and funds have been made parties to these proceedings, the object of which is to obtain a decree of this Court, authorizing the adoption of some scheme whereby the property devised may be utilized so that the charitable intentions of the testator may be carried out as nearly as possible ; and that the Court may direct them to sell the lands and premises, and to pay the proceeds thereof, together with the accumulation of rent in their hands, to such purposes as this Court should determine best suited to carry out such scheme. Jas. Dechman, the son and heir-at-law of the testator, was also made a party. None of the defendants have appeared and answered, and a default was entered against them. An application having been made for a reference to a master to report a suitable scheme to carry out the testator's inten- tion, I told the counsel acting on behalf of the Attorney General, that I entertained doubts whether this was a case for EQUITY. 255 the application of the doctrine of cy pres, as it was questionable ■whether the property did not revert to the heir-at-law of the testator on the failure of the donees to perform the conditions required of them by the terms of the devise. I, at the same time, informed him that, though the defendants had made no defence, and had allowed judgment by default to be entered against them, I would allow the question to be raised and hear it argued, if it should be desired ; and, notice to that effect having been given to them, Mr. Motion appeared as counsel for Mr. Dechman, the heir-at-law, who had a day appointed for the argument, but on that day no person appeared on behalf either of Mr. Dechman or the other defendant, and no objec- tion having been raised either to the granting of the prayer of the writ or to a reference to a master, a reference was made to Mr. Twining, who subsequently reported as follows ; (His Lordship here read the report of the master, to the effect that the intentions of the testator would be best carried out by handing over the property to the Commissioners of Schools for the City of Halifax, towards the erection of a High School under the Act of 1877, c. 39, the Kirk Session to have the power to nominate two free scholars to the school; the Sessions having concurred in that recommendation, on condition of their being allowed to so nominate two free scholars.) No opposition is now made to this report, nor has any counter scheme been suggested to the Court as better calcu- lated to carry out the testator's intentions. The report will therefore be confirmed and the scheme adopted. LONGWORTH et al, v. MERCHANTS' BANK OF HALIFAX, et al. Plaintiffs, as assignees under the Insolvent Act, sought to have certain mort- gages decreed to be void, which were made by the defendant Smith, within thirty days of demand made on him to assign, followed by an assignment. The evidence was conflicting, but the Court drew from it the inference that Smith, finding him- self in difficulties, applied to the Bank for 13,000,'in the belief that, if obtained, it would enable him to arrange with his more pressing creditors and avert the 256 LONGWORTH et al. v. MERCHANTS' BANK. insolvency which must otherwise ensue; that the agent of the Bank first led him to believe that the advance would be made, but the directors refused, and, instead of making the advance, required the mortgages to secure existing liabilities; that defendant consented to make them, encouraged by the agent to believe that if he did so further accommodation would be afforded, but the Bank, having secured itself and considering that further accommodation could not safely be afforded, declined to make any further advance and insolvency ensued, as Smith had anti- cipated. At the time the mortgages were given, the insolvent's paper was lying overdue in the Bank, and the agent of the Bank, on the execution of the mortgage, told him that he could not expect an advance till after the expiration of thirty days. Plaintiffs having sought relief first, on the ground that the mortgages were made in consideration that the Bank would advance $3000, which would have prevented insolvency, and secondly, that they were given in contemplation of in- solvency, and with intent fraudulently to impede and delay creditors, Held, as to the first ground that the consideration must be ascertained from the language of the instruments, which referred to existing indebtedness and not advances, and that Smith could not be heard to allege differently; but that on the second ground the mortgages must be decreed to be void as against the plaintiffs and creditors of the insolvent. Objection was taken that the requisition upon Smith to aspign was informally made, the affidavit on which it was based being liable to a technical objection. But, an assignment having taken place under it, and no objection having been made to it in the Insolvent Court, which had proceeded to settle the estate, Held, that it was not for a third party in a different Court to call in question the regu- larity of its proceedings. Semble. Even before the amendment of sec. 133 of the Insolvent Act of 1875, by the insertion of the words prima facie, (Cap. 41 of 1877,) the presumption of fraud could be rebutted. Ritchie, E. J., (now December 4th, 1877,) delivered the judg- ment of the Court : — This suit was brought by Israel Longworth and Lucius Dickson, the former the assignee of the defendant Robert Smith, the latter the assignee of Smith & Crow, insolvents, praying the Court to declare two mortgages made by Smith to the Merchants' Bank, fraudulent and void, as against the plaintiffs, and to order them to be delivered up and cancelled. Subsequently, the Halifax Banking Company became a defend- ant, as being interested in the result. The mortgages in question bear date the 31st December, 1875, and contain recitals that Smith, in the course of his busi- ness, had become indebted to the Bank in the sum of $10,000 on certain bills and notes discounted for him, part of which were then overdue and the remainder were then maturing, EQUITY. 257 and that he had, at the request of the Bank, agreed to give mortgages on his real estate as collateral security for the re- payment of these liabilities ; and the consideration is therein alleged to be this indebtedness and the nominal consideration of one dollar. Very soon after, an arrangement was entered into between the Merchants' Bank and Smith with the Halifax Banking Company, that the latter, to which Smith was also indebted, should participate pro-rata with the Merchants' Bank in the benefit of the security of the mortgages, and an instru- ment to that effect was executed by them, bearing date the 22nd January, 1876. On the 7th February, 1876, Smith made an assignment under the Insolvent Act to the Official Assignee, having been required to do so by one of his creditors in writing to that effect on the 27th January previous, on which day an affidavit of his insolvency was filed with the Registrar of the Court of Probate and Insolvency. The plaintiffs in their writ seek relief on two grounds ; the one is that the consideration stated in the mortgages was not the real consideration, but that they were given and received in consideration that the Bank would, upon the execution of them by Smith, advance to him the sum of $3,000, which sum, if it had been paid to Smith, would have enabled him to meet pressing liabilities and continue his busi- ness, and thereby his insolvency would have been prevented, but which, after having obtained the mortgages, the Bank refused to pay him. The other is that the mortgages were given in contemplation of insolvency, or with intent fraudu- lently to impede, obstruct or delay the creditors of Smith. The only evidence in support of the first ground is that of Smith,- the insolvent, who says that during the summer of 1875 he had difficulty in meeting his obligations, and was obliged to renew a large amount of his notes in full ; that he applied to the Merchants' Bank for a loan of $3,000, for which he offered security on his real estate to the amount of $10,000 ; that Mr. Dickie, the agent of the Bank, told him he would consult the Bank authorities, and a day or two afterwards he told him he thought his request would be considered favorably; that he then gave Mr. Dickie, in writing, what he wanted, with 10 g 258 LONGWOETH et al. v. MERCHANTS' BANK. a memorandum of the properties he proposed as security, and of the amount of claims on them ; that on his getting the $3,000, the mortgages were to stand as security for it. and as a collat- eral security for the notes then in the Bank ; that at the next interview Smith had with the agent Dickie, he was informed by him that the Bank had agreed to advance him the $3000, and on the 3rd or 5th of January 1876, the mortgages were executed. After this, on his calling for money, Mr. Dickie told him he could not give any till the mortgages had been recorded thirty days; he never did get the money. He states that he gave the mortgages solely for the purpose of getting the $3000, other- wise he would not have given them ; that by obtaining $3000 on the mortgages he thought he would benefit his other credit- ors, though he then knew he was unable to meet his engage- ments, and would be insolvent unless he received the advance of $3000. This evidence of Smith's, which is inconsistent with the recitals in the mortgages, is not confirmed by Mr. Dickie, though his statement on the subject is by no means satisfactory, and is distinctly and positively contradicted by Mr. McLean, the Cashier of the Merchants' Bank. The inference that I am led to draw from the tenor of the whole evidence is that Smith, finding himself in serious difficulties, applied to the Bank for the $3000, in the belief that if he obtained it he would be enabled to arrange .with his more pressing creditors and avoid insolvency, which he believed would ensue if he did not receive it; that the Agent of the Bank, in the first instance, led him to think that the advance would be made, but on the directors being applied to they refused, and, instead of giving him the advance, they required him to give the Bank the mortgages to secure his existing liabilities, and this he consented to do, having been encouraged by the Agent, (Dickie,) to believe that, if he did so, further accommo- dation would be afforded him in his business; but the Bank having secured itself, and having been led to the belief that Smith's affairs were in such a deranged state that such further accommodation could not be safely afforded him, refused it and insolvency ensued, as Smith anticipated would be the case. Whatever negotiations may have taken place before the EQUITY. 259 execution of the mortgages, we can only look to the language of those instruments to ascertain what was the real agreement between the parties and Mr. Smith cannot be heard to allege that the terms were different. Assuming, as we must, that the mortgages were given to secure the debt then due to the Bank, and that no intention, certainly no binding agreement, existed on the part of the Bank -to make Smith any further advances, how does the case stand on the second ground taken by the plaintiffs ? It is. quite clear that Smith was then unable to meet his engage- ments, and he knew that the only hope he had of avoiding insolvency was his obtaining the advance he asked for, and when, instead of giving the advance, the Bank asked for and obtained the mortgages to secure their existing debt, and, having obtained them, refused all further accommodation and closed their dealings with him, Smith must have known that, insolvency would ensue, and the Bank could not but have had reason to doubt his solvency and to believe that its debt. was. being secured and a preference obtained at the expense of the other creditors. His paper was lying overdue at the Bank, and the Cashier says that he knew that certain of "his creditors were pressing him and that he had need of the $3000, for ' which he effected the mortgages, to meet them. This, too, was well known to Dickie, the Agent of the Bank at Truro, who, if he did not promise the advance asked for, induced him to believe that he would get it ; and his language is emphatic and capable of but one construction when he told Smith, oa the execution of the mortgages, that he must not expect an advance from the Bank till after the expiration -of thirty days, from the time the papers were recorded ; and this statement.of his is not denied. The Halifax Banking Company considered that the mort- gages were given in violation of the Insolvent Act, and insisted on being allowed to participate in the security or they would dispute their validity, and this the Merchants' Bank consented to rather than to have their validity called in question. It is to be b,orne in mind that the mortgages, having been made within thirty days from the time that a demand was made on Smith to assign under the Insolvent Act, are: 260 LONGWOBTH, et al. v. MERCHANTS' BANK. presumed to have been made in contemplation of insolvency ; and the evidence adduced by the defendent, to my mind, is far from rebutting that presumption. And as the effect of ^hem is to give to the Bank an unjust preference over the creditors of Smith, and to defeat the intention of the Act by preventing a rateable distribution of his assets among them, they should be decreed to be void against the plaintiffs and creditors of the Insolvent. The claim of the Halifax Banking Company falls, of course, with that of the Merchants' Bank. It is difficult, indeed, to see how, in any case, it could be sustained, as the security was taken for Smith's debt to them when they knew he was in- solvent, and was only obtained on a threat to put him in insolvency and to attack the mortgages as taken in violation of the Insolvent Act if the Merchants' Bank would not allow them to participate in the security. Perhaps I ought not to omit to refer to an objection on the part of the Merchants' Bank, that the requisition on Smith to assign was informally made, the affidavit on which it was based being liable to a technical objection. But an assignment took place under it and no objection was made to it in the Insolvent Court, which has proceeded to settle the estate and distribute the assets, and it is not for a third party in a different court to call in question the regularity possession. Held, that the provisions in the act incorporating the company (sections 13, 14, &c.) related to the obtaining of land for the mining operations contemplated by their act,, but. that for the purpo.se of . obtaining land for the line- of Railway .and statipns, which was a matter of public interest, they could resort to the provisions of cap. 70 R. S., (3rd series) ; "that no inference against this r view could be drawn from the fact that section 24, of cap. 70; making a certain class, of damages a county charge, was included among the excepted sections, as that seclion,did;not refer to lands, required for the track and stations, which were; made a county chargeby section 52 and following sections of r cap. 70 not included* among the excepted sections. The defendant Company, incorporated under chapter 74. of r the. Acts of 1876, entered upon and took possession of land of 266 N. S. SALT CO. v. HALIFAX COAL CO. the plaintifF company, incorporated by Act of 1866, on which borings for salt had been made and buildings erected with machinery, &c, under the provisions of chapter 70 of the Kevised Statutes, 3rd series, (see Appendix to R. S., 4th series, page 27), and proceeded to have the land so taken valued by a jury in the manner pointed out in the chapter last mention- ed. The plaintiffs resisted the proceedings and applied to this Court for an injunction to restrain the defendant company, contending that the only mode in which the defendants could enter upon the land Was that pointed out in chapter 74 of the Acts of 1876, under which the defendant company was incor- porated. The argument arose on the motion to make absolute the rule nisi for an injunction. Thompson, for plaintiffs, says that his principal contention is that chapter 70 of the Revised Statutes (3rd series) under which the defendants have proceeded, is not applicable to the , road being constructed by the defendant company. Ritchie, E. J., after the reading of the affidavits on which the rule nisi is based, and the affidavits in reply, intimates that the Court will not enquire into the amount of damages assessed by the jury, as that; is a matter of appeal, nor into the question of the regularity of the proceedings taken by the defendants, as that is a matter which can be reviewed by certiorari. He states that there are now just two questions to consider in this cause ; 1st, Does the Statute, (chapter 70, 3rd series), apply to the building of this road ? and 2ndly, Is this a case where the CoUrt ought to grant an injunction in the first instance ? Thompson reviews the several Railway Acts passed by the Provincial Legislature to show that when railways were' built under chap. 70 (3rd series), express enactments making the . damages a county charge were passed. Sec. 16 of. chap. 13 of 1865, made damages a cdunty charge. Chapter 14 of 1866 incorporated the plaintiff cofnpany, and the way in which it was to take land was the same as that which the defendant, company must pursue. The plaintiffs had thus vested rights prior to the defendants, which must therefore prevail over the latter. Chap. 34 of 1868, incorporating the Windsor and An- EQUITY. 267 napolis Railway Co. provided for an assessment on the county of the damages. Chap. 59 of 1870, incorporating the Eastern Railroad Co., and Chap. 81 of 1870, incorporating the Western Counties Railway, are very much the same as that Act. Chap. 43 of 1873 was an Act to amend this latter Act in regard to the taking of land. * Chap. 12 of 1874 is known as the subsidy Act. All these Acts show that when it is the intention of the Legislature to make railway damages a county charge the Legislature specifically enacts that they shall be such. Chap. 3 of 1876 contains the principle under which defendants represent themselves as acting. Section 6 of this Act, which makes certain sections of Chap. 70, (3rd series,) applicable to the building of this road, is very vague and only re-enacts these sections " as far as the same may be applicable." Quite a number of these sections of Chap. 70 are expressly left out, and notably sec. 24. Chap. 4 of 1876 is a very important act, for it gives to the defendants the benefits of chap. 3 of 1876. Chapter 74 of 1876 incorporates the Halifax and Cape Breton Railway and Coal Company, and' the defendants took advantage of this Act by virtue of chap. 4 of the Acts of the same year. One section of this Act makes tender of amount of damages sufficient to vest the title, and sec. 36 defines the word '• company," and re-enacts, " as far as the same may be applicable," certain sections of chap. 70 (3rd series.) The sections of chap. 70 (3rd series), providing for the taking of land, do not apply to this company, as they are not needed. There is a specific way pointed out in their charter, and they must follow that. There is no provision made for the payment of damages by the Counties. The intention was that money for damages should be assessed by arbitrators and paid by the company. In view of these enactments there is nothing to make damages a county charge, and the proceedings in this case, being on the assumption that they are such, are con- sequently irregular. Proceedings under sec. 11 of chap. 70 would operate as a dedication of lands to the public, but that could not have been the intention of the Legislature in regard to this company who are to own the road. Weatherbe, Q. C, (with whom was Graham.) Almost all the 268 'N. S. SALT CO. v.. HALIFAX COAL CO. sections cited by plaintiffs counsel are inapplicable. Those which apply are strongly in favor of the rights contended for on behalf of' the defendant company. A decision of this court under the act incorporating the Windsor and Annapolis Rail- way Company, is in point. The Windsor and Annapolis Rail- way is dedicated to the public, and there is a decision of our own Court setting aside an assessment against the company on the ground that the road, is a provincial public work. In the case of. the Yarmouth road the land is given to the com- pany. Does this Act make provision for making damages a county charge ? I think so. Let us look at the Act incorpo- rating the company, viz., chap. 74, of 1876.^ It is evident that this company was incorporated for two purposes, viz. : first, to open mines, &c, which is its private business, and secondly to build a railroad for public use. My contention is that sec. 13 of chap. 74 of Acts of 1876: refers to the method of taking land when necessary to do so for the private business of this company, and that sec. 36 makes provision for the taking of land for the building of the public railroad. Section 45, of chap. 70 R. S., 3rd series, provides for the striking of a jury, to assess damages, and there are sections of said chapter left unrepealed that provide for certain notices being given to county officers; Section 55 of Chapter 70, (3rd series), is unrepealed, and I rely on that. It provides for the assessment of the county by the Sessions. I also contend that^ihis is not>a case of irreparable injury; Story's Equity Jurisprudence, 11th edition, (see pp. 927-928). A very strong case mtist be made out when an injunction is sought to stop a railway^ The defendants are in a different position from the plaintiffs in regard to, other; parties. Our charter is later than theirs. Section 19 of chap. 1 of Acts of 1854 is section 24 of chap. 70 (3rd series). In chap. 1 of 1854 we have none of the machinery provided by the latter sections of chap. 70,.. (3rd series), and when these sections : were enacted, there was no more need of see. 19 of, chap, 1 of; 1854, which was; as I say, incorporated in chap. 70 (3rd series). In that view of the case there was no need of the. section,, and the repeal of it has no effect. I adihlt there are mistakes in the charter incorporating EQUITY. 269 this company, and the company have not all the privileges they should have. Our charter, however, is the valid one. The chartered rights of any private company can be" modified by the Legislature, and there are authorities to show tha't no private company has chartered rights as against a railway having legislative power to take a right of way. The value of the property, moreover, is not such as represent- ed by the affidavit of the plaintiffs. It does not assist the plaintiff company that a large sum of money has been spent. The question is how much is the property now worth ? The affidavits read by Mr. Graham show that the company never was a successful one. Again, the plaintiffs are guilty of laches in not moving sooner, and Mr. Ross' letter attached to Mr. Gregory's affidavit is a waiver. 4 _ Graham. — The plaintiffs can have no vested rights against the defendants. A railway is a public undertaking, and pri- vate interests must yield. By chap. 1 of 1854 no provision was made for assessment by a jury, of damages, made a county charge by sec. 19, but afterwards such provision was made in terms that rendered sec. 19 of chap. 1 of 1854 useless. This section afterwards be- came sec. 24 of chap 70, (3rd series), but was useless as sec. 55 of chap. 70 is very much more explicit. I think also that sec. 24 of chap. 70 was repealed in 1866 by an amendment, and that the appendix to our Revised Statute was never re-enacted. The plaintiff's acquiesced in the proceedings of the defen- dants, as is clear from Mr. Ross' letter in answer to the notice of the company that they, were about to enter the lands of the plaintiffs, and in which he asks that an arbitrator may be named. They should have moved sooner and not let the defendants approach the boundaries of their property in both directions before doing anything to let them know that their entry would be resisted. The defendants could not then change the location of the road without a great sacrifice, but they could have done so two months earlier. High on Injunc- tion, sec. 387 and 388. The affidavits of the plaintiffs are misleading, as they do not truly disclose the present state of the property. 270 N. S. SALT CO. v. HALIFAX COAL CO. Ritchie, E. J. — If any facts are concealed in regard to the matter as to which an injunction is sought, that is enough of . itself to dissolve the injunction. Graham. — That is just this case. Further, if there is a question as to the law, the Court will dissolve an injunction. — Joyce on Injunctions 910, 816-894. Thompson in reply. — In regard to Mr.Weatherbe's argument concerning sec. 13 of 1874, 1 ask could the defendants build a road to-morrow and charge it to the county ? According to Mr. Weatherbe's argument they could. The sec. of chap. 70, (3rd series), which defendants seek to apply to this road is only to be applied "as far as applicable." Suppose sec. 24 was not excepted, then the other sections of chap. 70 would be applica- ble, but without it they are not applicable at all. Sections 391-394 of High on Injunction show that injunctions do apply to railways. Moreover, vested rights cannot be taken away by implication and there is no express enactment taking away those of the plaintiffs. Chap. 70 (3rd series), is inconsistent with chap. 74 of 1876 and cannot possibly apply. Ritchie, E. J., (now Jan. 7th, 1878,) delivered the judgment of the Court : — On the 4th of April, 1876, an act of the Provincial Legisla- ture passed incorporating the defendant company for the purpose of constructing, maintaining and operating a railway from some convenient point on the existing railway between Truro and Pictou to a suitable point in the Strait of Canseau, &c, &c. ; also for the purpose of acquiring and holding quarries and mines, and opening and working the same, and of manu- facturing, working and disposing of the products of the same, and for purchasing, acquiring and holding real estate, mills, etc. By the 13th sec. it is enacted that whenever it may be necessary for the construction, maintenance, operation, enlarge- ment or other purpose of the company's works or business that the company should be invested with any lands, and no agree- ment can be made for the purchase thereof, it shall be lawful for the company to apply by petition to any one of the judges of the Supreme Court, who, if satisfied that the lands are re- EQUITY. 271 quired and are not more extensive than necessary, shall direct an appraisement as therein pointed out ; and by the 14th sec- tion it is enacted that upon payment or tender of the compensa- tion awarded or agreed upon, the title of the land shall vest in the company, with power forthwith to take posession. By the 36th seetion, the provisions of chap. 70, of the Ke- vised Statutes, (3rd series), " of Provincial Government Kail- roads," so far as the same might be applicable, were made applicable to the line or lines of railway to be built under that Act and were thereby incorporated with, and made a part thereof, except certain sections therein specified; the term " Commissioners " or " Contractors," in chap. 70, to include the company, and the term " railway department " to apply to, and include, the company. Under the provisions of another Act of the Provincial Legislature, passed at the same time, a subven- tion or subsidy in money was given to the company which should construct the road, together with an allotment of crown lands, the class and character of the road to be determined by the Governor in Council to whose approval the route and loca- tion of the line of railway are made subject, and provisions were to be made for the regulation of tolls and rates for passengers and freight, and the carrying of provincial property, and generally for guarding the public interest. The defendant company in the prosecution of its enterprise of constructing the railroad contemplated by its Act, has entered upon and taken possession under the provisions of chap 70 of the Revised Statutes, (3rd series), of the land of the plaintiffs on which borings for salt have been made, and build- ings erected with machinery, &c, and has proceeded to have the land so taken, valued by a jury in the mode pointed out by that chapter. The right to do this is resisted by the plaintiffs, who have taken out a rule nisi for an injunction to restrain them from removing the buildings and machinery or otherwise interfering with the enjoyment of their property. The plaintiffs were incorporated by an act of the Legislature, passed in the year 1866, for the purpose of manufacturing salt from brine and exploring for such salt and other minerals, with power to purchase or acquire land, and to construct such rail and tramways or other roads as should be necessary for 272 N. S. SALT CO. v. HALIFAX COAL CO. the transportation of the products of the mines, &c, fee, and to purchase or build wharves, docks, piers, mills, etc. The company was also to have a preferential right to licenses and leases of coals or other minerals which it might discover dur- ing its explorations, subject to the power of. the Governor in Council to determine the extent of the areas to be so leased. The Act of Incorporation contained a section similar to that in the Act of the defendant company, authorising an application to a Judge of the Supreme Court for acquiring land necessary in the construction and maintenance of the works of the Company where no agreement could be made for its purchase. The present application to the Court is to make absolute the rule nisi for an injunction. The plaintiffs contend that the defendants cannot resort to the provisions of chap. 70 of the Revised Statutes to acquire the land necessary for their rail- road, but can only obtain it under the 13th and 14th sections of their Act above referred to, and must pay for it or tender the appraised value before they become entitled to enter upon the possession of it, and that, as the defendant company is a private company like their own, and having the same power of acquiring land for its undertakings, the land of the plaintiff company is not liable to be taken from them by the defend- ants to carry on their undertaking ; that Chap. 70, to which I have referred, can' only from its terms apply to land taken for a public undertaking, where the payment of the value of the land taken is made a county charge, and that here it is not made such. The objects of the defendant company are two-fold, one of which is strictly of a private nature, that of engaging in min- ing operations ; the other is of a very different character, the construction of a public railroad, built under the super- vision of the Provincial Government, to the expense of which it has contributed and in which the public is largely interest- ed, which interest is recognized and protected by the law under which it is being constructed. The act of incorporation contains distinct provisions for carrying out these two objects. Those contained in ■ sections 13, 14, 15 and 16, relating to the mode of acquiring land, are such as are to be found in all acts of incorporation for mining EQUITY. 273 purposes, the policy of the Legislature being to have all such acts uniform in this particular, while the 36th Section can only apply to the construction of the railroad contemplated by the Act, embracing as it does, with certain exceptions, the pro- visions of chapter 70 of Provincial Government Railroads, so far as the same may be applicable, the very first clause of which enacts that the commissioner or contractor, (by the defendant's Act of Incorporation, made to include " the com- pany "), are authorized to enter upon and take possession of any lands required for the track of the railway and for stations ; and they shall lay off the same by metes and bounds, and record a description and plan thereof in the Registry of Deeds for the County in which the lands are situate, and the; same shall operate as a dedication to the public of such lands,, &c, &c. Subsequent sections point out how a jury shall be drawn, and what course shall be pursued in estimating the value of the lands so taken. Surely these sections would haves been excepted if it had not been the intention that they should be acted upon. Mr. Thompson's contention was that, ass a speeifie mode- o£' acquiring land was pointed out iti the Act o£ ImeorporatrouD, that was the only course to be adopted, and that these provi- sions could only be brought into operation where the payment for the land taken was made a county charge ; that the section, 24 of cap. TO-,, which made the damages a county charge was one of the- excepted sections, and that, therefore, the com- pany alone were responsible for them. But it is clear to me that the payment is made a county charge quite independently of this section, which I think was not intended to apply to the land taken for the. line of raihvay and stations. The 52nd section, referring to the appraisement of the land taken for the line of railway and stations, by the jury, directs that the amount shall be assessed on the county and levied and paid as soon as possible, and the sections following to 59 point out how they are to be apportioned and collected, and that on failure of the Sessions to perform the duty, the county shall be amerced by the Supreme Court. As great stress was laid on section 24 being excepted in the, 10 h 274 N. S. SALT CO. v. HALIFAX COAL CO. Act of Incorporation, I will now see what effect the exception of that section ought to have. By the 11th section, to which I have referred, the company was authorized to take possession of land for the line of railway and stations ; by the 12th and the several subsequent sections to the 24th the company was authorized to enter upon other land to take soil and other materials from it, and cut trees, etc., for railway purposes, and for obtaining compensation for the damages thus occasioned a different course is pointed out and payment is required to be made in the first instance by the commissioner or contractor ; but by the 19th section the county is made liable ultimately to pay them, and it is to these damages that the 24th section lhas reference, for after the sections referring to these, and to these alone, the section in question follows in these words : — "'The moneys payable for such lands and fencing, shall form a. county charge, but in apportioning the assessment the Ses- sions shall have respect to the relative benefits derived from the railway by the several sections of the county, and shall apportion the assessment accordingly." The only object of this section must have been to make the charge apportionable in a particular way in the county, for by the 19th section, they bad been expressly made a county charge, so that by excepting the former sections from the defendants' Act of Incorporation, the only effect would be to make the charge assessable over the whole county alike. The conclusion, therefore, to which I have arrived is that the defendants, if they desire to acquire lands necessary for the mining operations contemplated by their act which they ■cannot obtain by purchase, must resort to the special provi- sions therein pointed out ; but if land be required for the line of railway or for stations they are to act as they have done in this instance, under the sections of chap. 70 of the Revised Statutes, which have been incorporated in their act. In this view all parts of the Act are brought into operation without •conflict, and carry out, as I think, the intention of the Legisla- ture ; and inasmuch as the plaintiff company is in no respect of a public character, but incorporated solely for the pecuniary benefit of the corporators, land held by them may be taken by the defendant company under the powers conferred on them, EQUITY. 275 not to enable them to carry on their mining operations, which are equally of a private character, but for the construction of a public work, undertaken, it is true, by the defendants with a view to profits, but in which the public generally is interested, and to which the public funds have largely contributed. I have not adverted to the discrepancies in the several affidavits relative to the injury done to the plaintiffs by taking their land and buildings and destroying their enterprise, as these are matters for appeal from the appraisement and do not affect the question now before this court, if the view I have taken of the case be correct. The rule nisi for an injunction must be discharged. THE ATTORNEY GENERAL v. FRASER, et al. A license to search for minerals, other than gold, was granted to the relators under Sec. 86 of Cap. 9, R. S., to expire 21st May, 1874. Previous to its expi- ration, four other licenses to search over the same area were granted to the relators, which were to expire respectively, 22nd May, 1876; 23rd May, 1876; 26th May, 1877; and 27th May,1878, the area containing only four and a quar- ter square miles. On the 28th May, 1877, defendants, having a license to search over an area overlying in part the area of the relators, applied for a license, which was afterwards granted, to work one square mile partially overlying and including within its boundaries the area under license to search to the relators. An order nisi having been taken to restrain defendants from interfering, Held that over the area of four' and a quarter miles first above referred to, not more than four valid licenses to search could be granted under R. S. Cap. 9, Sec. 91, that the relators' fifth license to search, which was to expire May 27th, 1878, was invalid, and that on the 28th May, 1877, there was no obstacle to the defendants' obtaining the license to work granted to them. Obiter dictum; that it was no objection to the license to work that it was taken out in the name of one only of the defendants, Fraser, for their joint benefit; all the defendants having had an interest in the licenses to search, although taken out in the name of Fraser only. Ritchie, E. J., now, (Jan'y 28th, 1878), delivered the judg- ment of the Court : — An order nisi having been taken to restrain the defendants from interfering with the ores, mines and minerals, other than 276 THE ATTORNEY GENERAL v. FRASER, et jo* gold, within and upon a certain area claimed by the relators under a license to search, from the Commissioner of Mines, and from removing ores or minerals therefrom,, and from inter- fering with the relators in the enjoyment of their rights under the license ; on motion to have the order made absolute, it was contended by the defendants that they had obtained from th& Commissioner of Mines, first a license to search, and subse- quently a license to work over the area under which they have been working, and from which the relators now seek to- restrain them. That the defendants have obtained such licenses is not denied by the relators, but it is asserted on their behalf that, when they were granted, they had a valid outstanding license- to search over an area which extended over and embraced that, part of the area from which they now seek to restrain the defendants from working ; the object of this suit being to obtain a decree that the defendants' license to work so far as it overlies and includes within its boundaries the area under license to search to the relators may be declared void, and the- defendants be perpetually enjoined from interfering with the mines, ores and minerals, within or upon their license. No fraud, concealment or misrepresentation has been shewn or attempted to be shewn ; the question raised is as to the right of the Commissioner of Mines to grant the license to work to the defendants, and that depends upon whether the relators had, at the time it was granted, an outstanding valid license to search over it, as, if so, they had acquired such an interest in it under the statute under which licenses to search and work were authorized to be granted, as would preclude the Commissioner of Mines from making the grant to the defendants, and in that case their license to work would be deemed to have been improvidently granted, and the relators would be entitled to the relief sought for. The 86th sec. of the 9th chapter of the Revised Statutes, "Of Mines and Minerals," authorized the Commissioner of Mines to grant licenses to search to be in force for one year from date of application, to enter upon lands not already under license or lease, and to dig and explore for minerals other than gold. By the 87th, no such application shall be valid, unless. EQUITY. 277 accompanied by a payment of $20, and the license to search may cover any single tract of ground not exceeding five square miles in extent, but not more than two and one-half miles in length. Sec. 90 allows the license to be renewed under special cir- cumstances, subject to approval by the Governor in Council. The 91st sec. provides that when a license to search has been granted, the Commissioner of Mines may grant other licenses to search over the same area, provided that he shall grant no more licenses than there are areas of one square mile each contained within the area so first licensed ; and after the first licensee has chosen his square mile the others shall select theirs in the order of their licenses, provided that the right of search of the second licensee and his license shall commence immediately after the expiration of the license, or renewed license of the first licensee, or on the selection of his square mile by the first licensee, and so on, till each in order has selected his square mile, and the whole area is disposed of. The 93rd section enacts that the holder of a license to search may, at any time before the expiration thereof, select from the land covered by such license, an area of one square mile, for the purpose of working the mines and minerals therein, and may make an application in writing to the Commissioner of Mines to work the same, which shall be accompanied by a payment of $50 ; and the 94th sec. provides that on such application and payment, the Commissioner of Mines shall cause the por- tion so selected to be surveyed and laid off, &c, &c. The 96th sec. enacts that upon complying with the require- ments of the chapter, the applicant shall be entitled to a license to occupy and work the one square mile applied for. The applications for licenses to search by the relators were made in the following order : the first on the 20th May, 1872, which expired on the 20th May, 1873; before it had expired, on the 16 th April, a second was taken out to go into effect on the expiration of the first ; this latter expired on the 21st May, 1874. Previous to the expiration of this license, on the 25th July, 1873, four licenses to search were taken out, which would expire on the 22nd May, 1875, the 23rd May, 1876, the 26th May, 1877, and 27th May, 1878, respectively; so that with 278 THE ATTORNEY GENERAL v. FRASER, et al. the outstanding license there were five licenses to search, granted by the Commissioner of Mines over the same area held by or on behalf of the same people, who, in the month of May 1874, applied for another license, which they renewed from year to year, till the year 1877 ; but these last mentioned applications do not, in my opinion, at all affect the question in dispute. The applications for licenses to search under which the defendants' claims were made, are as follows : the first on the 20th September, 1872; and before its expiration, on the 11th August, 1873, another was made to take effect on the expira- tion of the first. This license would expire on the 22nd Sep- tember, 1874, and on the 12th August, 1873, another was taken out, which would expire on the 23rd September, 1875 ; and on the 3rd September, 1873, another license was taken out, which would expire on the 25th September, 1877. While this last license to search was outstanding and in operation, and on the 28th May, 1877, an application was made for a license to work one square mile, which was granted, and it is the validity of this license which is now in dispute between the parties. It will be seen that at the time the defendants obtained the license to search, under which the license to work was grant- ed, the license to search taken out by the relators on the 25th July 1873, to expire on the 27th May 1878, was in existence, being the fifth right of search over their area when it was granted, and as the area contained in the licenses to search and work, granted to the defendants, overlay and included a part of the area contained in the relator's right of search, it would to that extent be invalid. The question, therefore, is whether this right of search of the relators was a valid one, and its validity is called in question, on the ground that the area described in the relator's application embraced but four and a quarter areas, and that over an area of that extent only four valid licenses to search' could be granted, and that the fifth was granted illegally and contrary to the express pro- visions of the act, and was therefore invalid, and could only have been legally granted if there had been five square miles in the area. EQUITY. 279 By the act relating to mines and minerals, as it first passed, no second license to search over an area of five miles could be granted till the previous license had expired. The law as it now stands permits, other licenses to he granted over the area, notwithstanding the existence of a prior right of search, such subsequent license not to go into effect till the expiration of those preA T iously granted, so that assuming the area to contain five square miles, each in order becomes entitled to a license to work over one square mile ; but it is expressly provided that the Commissioner of Mines shall grant no more licenses to search than there are areas of one square mile each contained in the area first licensed. That the Commissioner of Mines has granted five licenses to search over an area of four and a quarter miles, is undis- puted, and this is, in my opinion, in violation of the terms of the act. I therefore think that the fifth license to search, granted to the relators, is invalid, that no obstacle existed to the defendants' obtaining their right to search and work, and the Commissioner of Mines was justified in granting to them the license to work under which they are now working. If the relators had no valid right to search, and have now no right to a license to work over any part of the area claimed by the defendants, their application for the injunction must fail. It is hardly, therefore, necessary to advert to the objection raised on their behalf, that the right of search on which the defendants obtained their right to work was taken out in the name of but one of them. It appears that they were inter- ested in the license to search, though it was taken out in the name of Fraser. It was so taken out for their joint benefit, and I can see no objection to the course which has been pursued. MOSHER v. MILLER. The defendant J. C. S. Miller, mortgaged certain property to W. 6. King., whose executors foreclosed the mortgage, J. W. King, the surviving executor of the mortgagee becoming the purchaser at the Sheriff's sale. Defendant remain^ ing in possession of the mortgaged premises, a rule nisi was granted for a will Q. 1 280 MOSHER v. MILLER. assistance to put the purchaser in possession. No cause being shown, the rule was made absolute, and a writ issued, under which the property was delivered to J. W. King. Defendant then brought an action of trespass against the Sheriff and J. W. King, whereupon a rule nisi was taken for an injunction to restrain the action. Defendant opposed the rule, contending that the property of which he had been in possession was not included in the mortgage; but after a full hearing of the cause, the rule for the injunction was made absolute. J. W. King then put the plaintiff, Mosher, in possession of the land, and the defendant, J. C. S. Miller, brought an action of ejectment, setting up the claim which this Court had pre- viously decided against him, namely, that the lands claimed were not included in the mortgage. The present suit having been instituted to restrain that action, Held that the defendant could not resort to the action of ejectment at common law, and there claim the land to which this Court had decreed that he was not entitled, and that the action must be restrained. Ritchie, E. J., now, (February 25th, 1878,) delivered the judgment of the Court : — It appears from the affidavits and the documents referred to in them, that a mortgage was made by one Jacob Miller, and Charlotte his wife, and John C. S. Miller the defendant, and Sarah his wife, to the Rev. William C. King, of all their estate and interest in all that upland farm and marsh lot, or any part thereof, then in the possession and occupation of the said Jacob and John C. S. Miller, which they might have in possession remainder or reversion under and by virtue of the last will and testament of Samuel Miller, deceased, which upland and marsh were more particularly described, and the rights and interest of the said parties respectively, in the said last will on file in the Probate Court of the County of Hants, as would appear by reference thereto. Some time after, Jacob Miller conveyed to the defendant his interest in the mortgaged premises, and subsequently a suit for the foreclosure of the mortgage was commenced by the executors of Mr. King, who had died in the meantime. No defence was made to this suit by John C. S. Miller, and a decree of foreclosure passed, under which the mortgaged pre- mises were sold, James W. King, the surviving executor of the mortgagee, becoming the purchaser, to whom a deed was executed by the Sheriff, which sale was afterwards confirmed by an order of this Court. ■ EQUITY. 281 The defendant, at the time of the sale, was in possession of the mortgaged premises, and remained so for some time after, and having refused to deliver up possession, an application was made to this Court for a writ of assistance, and a rule nisi was granted, calling upon him to show cause why a writ of assist- ance should not issue to put James W. King, the purchaser, in possession of that portion of the real estate described in the mortgage of which the defendant was in possession, which passed to him under the Sheriff's deed. A copy of this rule having been served on the defendant, and no cause having been shewn by him why it should not be made absolute, it was made absolute, and a writ of assistance was issued. No pro- ceedings having been taken under it, subsequently, on the 31st August 1876, an alias writ of assistance was taken out, under which possession was delivered to James W. King. On the 28th of November following, the defendant com- menced an action of trespass against James M. Geldert, Esq., the Sheriff who executed the writ, and James W. King for what was done thereunder, whereupon a rule nisi was taken to show cause why an injunction should not issue to restrain him from proceeding in that action. Mr. Kigby, the then counsel for the defendant, opposed the making of that rule absolute, but after a full hearing of the case it was made absolute, and the inj unction granted* James W. King having been thus placed in possession by this Court, entered into an agreement with the plaintiff in this suit for the sale of the land to him, and under that agreement put him in possession of the land of which the defendant had been dispossessed, and thereupon the defendant Miller commenced an action of ejectment against him, wherein he claims that he unlawfully withholds from him the possession of the land in question, and this suit having been instituted to restrain him from further prosecuting that action, a rule nisi was granted, calling on him to shew cause why the proceedings in that action should not be stayed; and in shew- ing cause against the rule being made absolute, the defendant claims a right to be repossessed of the land on the same * See the judgment on the motion for injunction, page 284, post. 282 MOSHER v. MILLER. grounds as those on which this Court has decided against him, viz., that the lands in question are not the same that are- embraced within the mortgage. And he contends that not- withstanding such decision he has a right to bring his eject- ment' at Common Law, and to try his right to the possession of the land in that tribunal. This Court having decided that the land in question was comprised in and conveyed under the mortgage and sold under a decree of foreclosure, and the defendant, the mortga- gor, having been dispossessed and the purchaser put in posses- sion by the Court, the question now raised is whether the defendant can, without having appealed, resort to an action of ejectment in the Common Law Court, and there claim posses- sion of the land which this Court has decided he is not entitled to, and whether it has the power, and ought to exercise it, of restraining him from proceeding in such action. That the Court of Common Law _is in general the proper tribunal for the trial of titles to land, is unquestionable ; but after this Court lias been once in possession of a cause in which it has full power to adjudicate and do full justice to the litigating parties, neither of the parties, after a judgment has been given, can resort to another tribunal in respect of the same jnatter, and after a decree of this Court, neither of them can bring an action at law, which is against the spirit of the decree, or by which it is impeached, directly or indirectly ; and the action of ejectment is not, in my opinion, an except- ion to the rule. In Walker v. Mickleihwait, 1 Dr. & Sm., 51, a shei'iff having ejected, under a writ of assistance issued in pursuance of an order of the Court of Chancery, a person from premises which had been sold under an order of the Court, an action of trover against the sheriff was restrained, although the action sought damages for a trespass in taking chattels not included in the order. Kjndersley, V. C, said : " The action proceeds on the footing that the Court is entirely wrong, and that the plaintiff is still the owner of the property which has been sold by the order of the Court." The defendant in this suit proceeds in his ejectment on precisely the same footing. Brennen v. Preston, 10 Hare, 339, is to the same effect. In Grand Junction Canal Co. v. Dimes, 17 Sim. 301, the Court EQUITY. 283 enjoined Dimes from bringing an action, after decree, inconsist- ent with it. The Vice Chancellor said that the object of the decree was to settle finally the question between the parties, and that the defendant Dimes, by bringing the action, was reopening the question, and therefore was violating the spirit of the decree. It is difficult to understand why the principle of these cases, should not apply to an action of ejectment, being simply a proceeding to put the party bringing it into possession of the land. This Court has decided, after argument, that the defen- dant in this suit is not entitled to the possession of the land in question, but that King, the purchaser under the order of this Court, is entitled to possession, and has delivered possession to him. Under these circumstances, to allow an ejectment to be brought by Miller against King, or one placed on the land by him, would be inconsistent with the order of this Court which he has not thought proper to question in the only legitimate manner by an appeal. And in Selby v. Selby, 2 Dick., 678, the Court having decreed that the plaintiff was entitled to the estates in question, and having ordered that he should be put in possession of them, he was accordingly put in possession, and the defendant, having afterwards brought ejectment to recover possession of the estates, the plaintiff filed his bill and prayed for a perpetual injunction. The Lord Chancellor, Thuelow, said, "the Court will not permit any person to impede the execution of a decree so long as the decree remains unappealed," and he ordered a perpetual injunction. The same doctrine is recognized in the United States Courts. In McKay v. Blaclcett, 9 Paige, 437, it was held that the Court would not permit its orders to be rescinded or its jurisdiction to be questioned, — its orders to be rescinded indirectly and not by the Supreme Court of Appeal, and its jurisdiction to be questioned by courts of co-ordinate or inferior authority. The rule will be made absolute with costs. 284 MOSHER v. MILLER. The following is the judgment of His Lordship the Judge in Equity on the motion to make absolute the rule for injunction in King v. Miller, referred to ante p. 281. On argument of the rule nisi for an injunction to restrain the defendant J. C. Sherbrooke Miller from prosecuting the action at law referred to therein, it was admitted that, under the authorities cited in support of the rule, an injuction could be granted if it clearly appeared that the land of which the defendant was dispossessed under the writ of assistance was the same land as that comprised in the mortgage under fore- closure, and indeed it is unquestionable that redress must be sought in this Court and not elsewhere for what may have occurred in the execution of its process. But Mr. Rigby con- tended that the Court must be satisfied on the point, and that, if a doubt existed as to the identity of the land, it would not interfere by injunction, but would leave the party to his remedy at law. The mortgage conveys all that upland farm now in the possession of Jacob Miller and J. C. S. Miller, which ihey may have in possession, remainder or reversion, under and by virtue of the last will and testament of Samuel Miller, deceased, which is particularly described therein. In the will of Samuel Miller there is devised to Jacob Miller for life, and after his decease to his son J. C. S. Miller, and his daughter Sophia, "one hundred acres of upland, lying and being situate as follows, viz : Beginning at the west side of the Kennetcook road where my son Jacob has begun to clear, running westerly until it strikes the division line between my land and the lands of Antony Shaw, thence on said line northerly, thence across easterly till it strikes the line between my land and Mr. Dimock's, thence southerly on said line so far, thence westerly till it strikes the first named boundary on the Kennetcook road, to bi laid out by a surveyor." It appears from the affidavit of Levi Dimock, now the hus- band of Sophia, that, previous to the death of the tenant for life, the brother and sister made a division of the land to the possession of which they would become entitled on the death of Jacob Miller, whereby the Kennetcook road was made the division line, the piece to the southward of the road to belong EQUITY. 285 to Sophia, and that to the northeast to J. C. S. Miller, and that each party acquiesced accordingly as so assigned. Sub- sequently in the year 1865, and after Sophia had intermarried ■with Levi Dimock, he, the said Levi Dimock, though he was aware that a division had taken place, being unable to procure the instrument by which it was effected, was desirous to have it ratified by another instrument to secure to his wife the title to her portion, and an agreement was accordingly executed bj r and between the brother and sister, whereby the piece on the westerly side of the road was confirmed to Sophia, and the remainder of the lot to J. C. S. Miller, — -the parties then being in possession of the respective portions. The affidavit of J. C. S. Miller, in answer to this of Dimock which is clear, circumstantial and explicit, is most vague and unsatisfactory in every respect. It is difficult to understand what he means by saying that the devise was so indefinite that the land could not be ascertained, and if ascertained could not be divided. He claims no title to the land he occupied other than that of possession, but asserts a right to it merely by possession, and his account of the deed executed by himself and his sister is most lame. True, he confirmed to her, he says, the part to the west of the road, but no tract was then fixed or agreed on as her share. The equivocation is apparent ; the lot was a lot of 100 acres; he confirms to his sister the part to the west of the road, and she confirms to him the remainder of the lot of which he had been previously and was then in possession, i. e. the lot in controversy. If we are to take his version we are to infer that nothing passed under the mort- gage, or there were no means of ascertaining what it was. But the affidavit of Harvie, adduced by J. C. S. Miller, seems to me to set the matter at rest, as he has annexed a plan of the land which shows clearly, not only that the land in ques- tion was part of the land devised to Samuel Miller for life and to J. 0. S. Miller and his sister Sophia in remainder, but was the part assigned to the former under the agreement. Taking the plan and commencing at the point I have marked in pencil B., on the west side of the road which is self-evidently the starting point, and following the description in the will, we proceed westerly to Shaw's land, then on the line of that land,. 286 MOSHER v. MILLER running northerly, thenee across easterly till it strikes the Dimock land, thence southerly on line of said land so far thence until it strikes the first named boundary on the Kennet- cook road. How the mortgagor, Mr. Harvie, with this descrip- tion before him, and with the plan representing the land and the lands adjacent, could venture to say that the piece to the eastward of the road was not comprised in the devise is past my comprehension. How could he have run the lot devised, so as to have bounded it on Shaw's land on the west, and Dimock's on the east, having Kennetcook road running through it without including in the lot that part which is now in controversy to the east of the road ? He might have said, with all propriety, that to have run it out without including that part would have been impossible. There is a statement in Miller's affidavit which one would hope has arisen from ignorance on his part of the description in the will; he says the 100 acres devised to himself and Sophia was so indefinite, except that it was known to be on the west side of Kennetcook road, the locality of which has never since been changed, that it was impossible to lay off and define the same. Now the land devised lay part to the west and part to the east of the road, and just as it was devised so it has been divided and possessed and enjoyed by the two devisees; one taking the west and the other the east ; and no matter whether the testator had or had not a title to the east half, Miller mortgaged it and is estopped from controverting the title of the mortgagee, — not _that any question has been raised as to the testator's title. Has not the question been already before the Court? The rule nisi for the writ of assistance was granted on the affidavit of Dimock, to which I have referred, setting forth all the facts of the case, and that rule was to show cause why the writ should not issue to put Miller, the defendant, out of that portion of the real estate described in the mortgage foreclosed, of which he was tlven vn possession, and of which he wrongfully withheld possession; and it was this piece now in controversy of which he was then in possession, and of which he withheld possession. No cause was shewn and the rule was made absolute. If Miller had intended to contest the plaintiff's MOSHER v. MILLER. 287 right to the possession of that part, he should have then shewn cause why he should not be dispossessed. The present rule must be made absolute with costs. WINDSOR & ANNAPOLIS RAILWAY v. WESTERN COUNTY RAILWAY. Plaintiffs' bill set out the Act of the Legislature of Nova Scotia (1865 o. 13) pro- viding for the construction of the Windsor and Annapolis Railway; the agreement of November 22, 1866, between the Commissioner of Railways for Nova Scotia and Messrs. Punchard, Barry & Clark for its construction, containing a stipulation that prior to the opening of the road a traffic arrangement should be made be- tween the parties for the mutual use by the Province and the Company of their respective lines of railway from Halifax to Windsor, and from Windsor to Annap- olis; the Act of the Provincial Legislature incorporating the Company (1867 c. 36) of which the Act first mentioned and the agreement in pursuance thereof were made a part; the agreement of the Government of Canada, (successor to that of Nova Scotia in relation to the line' from Halifax to Windsor), with the plaintiffs made September 22nd, 1871 , providing that the Company should, with exceptions not touching the matter in hand, have the exclusive use of the Windsor Branch with station accommodation, etc., and the ose, so far as required, of the Trunk Line from Windsor Junction to Halifax, the Company to pay over to the Govern- ment monthly one-third of the gross earnings of the Government lines, the agree- ment to continue twenty-one years, then renewable, but to terminate in the event of the Company failing to operate the Railways between Halifax and Annapolis. Plaintiffs alleged that, having certain equitable claims against the Government of Canada, they allowed their payments due under the agreement of September, 1871, to fall in arrear, but paid them off in November, 1872, after which under similar circumstances they again allowed them to fall in arrear, in consequence of which the Government threatened to resume possession of the road, unless payment was made on or before October 1st, 1873, which period was afterwards extended to November 1st, 1873; -that on the 22nd October, 1873, a Minute of the Privy Council of Canada was passed, of which no notice, official or otherwise was given to the Plaintiffs, by or on behalf of the Government, reciting that the Company owed the Government $30,000, and had failed to operate the Windsor Branch, and recommending that the Government should immediately proceed to operate the road between Halifax and Windsor; that afterwards on the 20th June 1876, an agreement was entered into between Her Majesty the Queen, represent- ed by the Minister of Public Works, and the plaintiff Company, whereby the Company agreed to change the gauge of their Railway and release all claims against the Government to July 1st, 1875, and in consideration thereof the debts alleged to be due to the Government by the Company up to January 1st, 1875, were extinguished, and it was declared that the agreement under which the Company held and worked the Branch Line continued in full force and effect, 288 W. & A. RAILWAY v. W. C. RAILWAY. except as thus modified. Plaintiffs alleged that they had continued in possession of said Windsor Branch until August 1877, when the Superintendent of Govern- ment Railways took forcible possession and prevented them from using the branch. The road was afterwards transferred by the Dominion Government to the defendants on the 24th September, 1877, such transfer being based on the authority of the Dominion Act of 1874, o. 16. (q. v.) Defendants having demur- red to this writ ; Held, That by the agreement of September 1871, the Windsor Branch was in fact leased to the plaintiffs for twenty-one years, that the only event upon which the Government was authorized to re-enter was a failure to operate the road between Halifax and Annapolis; that the statement in the Minute of Council that plaintiffs had failed to operate the road could be controverted in this suit, — and that without making the Crown or the Government, represented by the Attorney General of Canada, a party to the suit, — and having been denied by the plaintiffs, must be taken for the purpose of the argument on the demurrer to be untrue; that, independently of the Act of 1874, the only interest that could be transferred to the defendants by the Government was their reversionary interest in the road, subject to the plaintiffs' lease; that the Act of 1874 did not directly and in terms divest the plaintiffs of their rights, and must be held as intended simply to sanction the transfer to the defendants of such interest as the Government itself had in the road ; that the plaintiffs had no adequate remedy at Law, by scire facias or peti- tion of right, as they did not seek redress against the Crown, or the Government of Canada, and it was not in the power of the Government bf Canada or the Crown to give them the relief sought for, — nor by ejectment, because, assuming that ejectment would lie in respect to the rights claimed by plaintiffs to operate the railway under the agreement of 1871, plaintiffs could not by that action obtain any relief in respect to the original agreement with the Provincial Government as to running powers, and this ground of demurrer being to the whole writ, even if applicable to part of the writ, must be overruled, as it could not be good in part and bad in part. , Ritchie, E. J., now, (March 11th, 1878,) delivered the judg- ment of the Court : — The defendants having demured to the writ of the plaintiffs instead of answering it, the facts stated in it, so far as regards the argument, must be assumed to be true. From the state- ments therein it appears that on the 2nd of May, 1865, the Legislature of Nova Scotia passed an Act providing for the construction of a Railway from Windsor to Annapolis, and on the 22nd November, 1866, under the authority of that Act, the Commissioner of Railways for that Province entered into an agreement with Messrs. Punchard, Barry & Clark, of London, G. B., for its construction, which contained, among other things, the following stipulation : " And it is hereby mutually agreed EQUITY. 289 that prior to the opening of the railroad, a traffic arrangement shall be made between the parties for the mutual use and employment of their respective lines of railway between Halifax and Windsor, and Windsor and Annapolis, including tunning powers, or for the joint operation thereof, on equit- able terms, to be settled by two arbitrators to be chosen by the said parties in the usual way in case of difference." On the 7th May, 1867, the members of the firm of Punchard, Barry & Clarke were, by an Act of this Province, constituted a body corporate by the name of, "The Windsor and Annapolis Railway Company," and by the act of incorporation, the act first above referred to and the said agreement were incorporat- ed with and made part of. the act of incorporation. On the 22nd September, 1871, the Government of Canada> which became successor of that of Nova Scotia in relation to the line of Railway between Halifax and Windsor, in pursuance ; of the power and authority of the said act of incorporation, ,, entered into the following agreement with the plaintiffs ;— " Agreement between the Windsor and Annapolis Railway.' Company, limited, and the Government of Canada, (approved '. and ratified by His Excellency the Governor General, of-' Canada, in Council, on the 22nd day ofv September,., A.. D.$., 1871.) "The several expressions, hereinafter!' referred to shall, when used in this agjraement$ : have, the o signification and meaning following: "The Company*"— the Windsor and Annapolis Railway Company! . limited. " The Authorities^-^he Department of the Government of Canada which ; fori the time being shall have the command or control' of the Nova^Scotia Railways. "The 'Trunk liike,''- — so much of the Nova Scotia Railway, with the branches; appurtenances, buildings and conveniences thereto beshbnging sr attached, as lies between the said Windsor Junction and the Junction of such Railway with the Windsor and Annapolis Railway, at or near Windsor* * The above is the definition given in the writ, but it is in fact the definition of the "Windsor Branch," the "Trunk " being the line between. Halifax city and-i the Windsor Junction. The writ was afterwards amended; 10 i 290 W. & A. RAILWAY v. W. C. RAILWAY. " The Superintendent," — the Superintendent or other officer for the time being managing the Nova Scotia Railways. " The Manager," — the General Manager or other officer for the time being, managing the Windsor and Annapolis Railway. " 2. — The Company," (meaning the plaintiffs), " shall, except for the purpose of the authorities," (meaning the Government of Canada), " in maintaining the Railway and Works, have the exclusive use of the Windsor Branch, with all station accom- modation, engine sheds and other conveniencies, (but not inclu- ding rolling-stock and tools for repairs), now in use thereon. " 3. — The Company shall also use, to the extent required for its traffic, the Trunk Line, with the station accommodation thereon, including engine shed, accommodation for five engines, water supply, fuel stages, turntables, signals, telegraphs, wharves, sidings and other conveniences, but not including machine shops and other shops, buildings and appliances for repair of rolling-stock. " 4. — The Company shall run every day, Sundays excepted, not less than two trains each way, carrying passengers, and shall adopt the same tolls as at present levied, or such other tolls as may from time to time be approved of by the Governor in Council, and shall furnish and maintain its own rolling- stock. " 5. — The authorities shall maintain in workable condition the Windsor Branch and the Trunk Line, including all the , station accommodation and other conveniences thereon. "6.— The Company shall, on the Windsor Branch, employ ;Aheir own station agents, booking clerks, watchmen, porters, . signalmen, switchmen and other servants, for the management of the traffic. " 7.— The .authorities shall, on the Trunk Line, employ all . station agents, booking clerks, watchmen, signalmen, switch- .men and other servants, not provided by the Company under .clause 17. "8. — The Company shall not, except with the concurrence of ithe authorities, carry .any local traffic between stations on the Trunk Line, but if *o carried they shall charge the same tolls ?as may be charged by ihe authorities. '"9.—. The Company shaB keep and render to the Superinten- EQUITY. 291 dent an exact -detailed account of all traffic carried by them ■over the Windsor Branch and Trunk Line. " 10. — The Company shall pay to the authorities monthly one-third of the gross earnings from all traffic carried by them over the Windsor Branch and Trunk Line. " 11- — All accounts between the authorities and the Company -under this arrangement shall be adjusted regularly at the end of each calendar month, and the balance struck and paid over in cash, not later than twenty-one days after the end of each month. " 12. — The Authorities and the Company respectively, shall, at all reasonable times, have access to and be allowed to inspect all such books, papers and vouchers in possession of the other of them, as have reference to the accounts between them. " 13. — All regular trains on the Windsor Branch and Trunk Line shall be run in the usual way by time-table, which time- table shall, in respect to the Trunk Line, be prepared by the Superintendent, on consultation with the Manager. The Superintendent shall arrange for the arrival and departure of the trains of the Company at the times desired by the Manager, or as near thereto as practicable ; and in this respect, and in every other respect, the Superintendent, the officers and ser- vants of the authorities shall conduct the business and work the traffic of the Company and of the authorities with perfect impartiality and fairness. " 14. — With respect to special and irregular trains, in order to ensure public safety, the Company shall use the Trunk Line in strict accordance with such rules and regulations as are now in use, or as may hereafter be adopted and enforced by the Manager on the Windsor Branch, so far as necessary, for the guidance of officers and men engaged in maintenance pf the Railway. " 15. — The speed of the Company's trains on the Trunk Line and Windsor Branch shall not exceed the speed adopted by similar trains on the Government Railways in Nova Scotia. " 16. — The Station Agents and other servants of the authori- ties at Windsor Junction shall receive, and, as far as practica- ble, carry out the instructions of the Manager in regard to the arrival, departure and working of the Company's trains. 292 W. & A. RAILWAY v. W. C. RAILWAY. from or to the Windsor Branch ; and he or they shall record in a book, to be kept for that purpose, the numbers and particulars of all engines, carriages, truck cars or other vehicles passing through such junction, and shall make a return of the same daily to their respective owners. " 17. — The Company shall employ on the Trunk Line their own Booking Clerks, Carting Agents, Carting Staff or such other staff as they may deem necessary for the booking, collecting, checking, invoicing, receiving, delivering or forward- ing their own traffic ; and the authorities shall, so far as- practicable, provide suitable and convenient accommodation for b-uch servants, and for the accommodation of such business. " 18. — The Company, in using the Trunk Line, shall at all times observe the Regulations and Bye-Laws for the time being in force thereon; and the authorities in using the Windsor Branch for the purpose of repairing and maintaining it, shall at all times observe the Regulations and Bye-Laws, for the time being in force thereon. " 19. — In the event of the Company failing to operate the Railways between Halifax and Annapolis, then this agreement shall terminate, and the authorities may immediately proceed to operate the railway between Halifax and Windsor as they may deem proper and expedient. " 20. — The termination of this agreement under the preceding clause is not to prejudice any rights which the Company may now have. "21. — This agreement shall take effect on the 1st day of January, 1872, and continue for twenty-one years, and be then renewed on the same conditions or such other conditions as may be mutually agreed on." The writ ' proceeds to state that the said agreement had never been broken % the Plaintiffs, except as to non-payment of rent as thereinafter mentioned. The Plaintiffs began accordingly to operate the said Windsor Branch Railway in connection with the Windsor and Annapolis- Railway, and to exercise the running powers over the said Trunk Line into Halifax, and at the same time necessarily increased their rolling-stock, in order to perform the additional service- rendered; incumbent by such an extension of their EQUITY. 293 operations, and the Plaintiffs continued fully to operate the whole line between Halifax and Annapolis up to the 1st August last, and never failed to operate the same at any time, according to the said agreement. On the 23rd May, A. D. 1873, the Parliament of Canada passed a resolution authorizing the Government to enter into negotiations for the transfer of the Windsor Branch Railway to reliable parties who would construct a railway between Annapolis and Yarmouth. The Plaintiffs having certain equitable claims against the Government of Canada, allowed a certain amount of the one- third tolls or earnings reserved ,under the the agreement of 22nd September, 1871, to fall into arrear, with the hope and to the end that such equitable claims would be allowed to stand as an offset against the said one-third tolls or earnings ; but the Government refused, and threatened to resume possession of the said Windsor Branch, and in November, 1872, the Plaintiffs, paid the said arrears so due. Under similar circum- stances, the said one-third tolls or earnings were again allowed to fall into arrear, and the Minister of Public Works, on behalf of the Government, made several applications to the Plaintiffs to have the balance settled, and finally threatened that unless payment were made on or before the 1st October, 1873, Government would resume possession of the road. The Plaintiffs, being unable to provide' the amount within the time stipulated, requested a further delay, and the Minister of Public Works, on behalf of the Government, agreed to take no further action in relation to the arrears, before the 1st November, 1873. On the 22nd October, 1873, the following Minute of Council was passed by the Privy Council of Canada, but no official or other notice of it was given to the Plaintiffs, either previous or subsequent to its passing by the Government of Canada or by any person or persons on its behalf : — " On a report dated 21st October, 1873, from the Honorable the Minister of Public Works, stating that the Windsor and Annapolis Railway Company have failed to operate the railway known as the Windsor Branch, mentioned in the Order in Council of the 22nd September, 1871, and to comply with the other terms and 294 W. & A. RAILWAY v. W. C. RAILWAY. conditions of that Order in Council, and now owe over $30,000 to the Government of Canada, and, though repeatedly called upon to pay, have failed to do so, and recommending that, inasmuch as the said Company have failed to operate one of the railways between Halifax and Annapolis, the Government of Canada, known as the ' authorities,' by the said Order in. Council, do proceed immediately to operate the railway between; Halifax and Windsor." On the 26th May, 1874, an Act passed the Parliament of Canada to authorize the transfer of the Windsor Branch of the Nova Scotia Railways to the Western Counties Railway Company, to the terms and effect of which I shall refer hereafter. On the 20th day of June, 1875, an agreement was entered into between Her Majesty the Queen, represented by the Minister of Public Works for the Dominion of Canada, and the plaintiffs, which agreement is in the words following : — " Articles of Agreement made and entered into the twenty- second day of June in the year of our Lord, one thousand eight hundred and seventy-five, between the Windsor and Annapolis Railway Company, (hereinafter called the Company) of the first part, and Her Majesty Queen Victoria, represented herein by the Minister of Public Works, (hereinafter called the Minister), of the second part ; "Whereas the Company was on the 1st day of January last indebted to the Government of Canada in a large sum of money, being one-third of the accrued gross earnings of the Windsor Branch of the Intercolonial Railway, worked and managed by the Company, under an agreement entered into by them with the Government of Canada, dated the 22nd day of September, A. D. 1871, granting the said Branch to the said Company for twenty-one years, from the 1st day of January, 1872; "And whereas the Company have preferred certain claims against the Government of Canada, by way of set-off to such indebtedness, but which claims have not been recognized or admitted ; "And whereas it is found desirable that the gauge of rails EQUITY. 295 on the said Branch should be changed from their present 5 feet 6 in. gauge to the standard gauge of 4 feet 8J in. ; " These presents witness that the said Company, for the consideration hereinafter named, do hereby contract and agree to and with Her Majesty, represented as aforesaid, that the Company shall and will, at their own cost and charge, on or before the 1st day of July now next, in a proper, substantial and workmanlike manner, but subject to the approval of the Minister or officer appointed by him, change the gauge of the Windsor and Annapolis Eailway, and make it conform to the present standard gauge above named, and deliver over to the said Minister or whom he may appoint for that purpose, at such place or places as may be fixed, 9 broad gauge locomotive engines, 14 sets of broad gauge passenger-car trucks, and 145 sets of broad gauge freight-car trucks, and also execute and deliver a release of all claims and demands whatsoever against Her Majesty, or the Government of Canada, up to the 1st day of July, 1875 ; " In consideration whereof her said Majesty, represented as aforesaid, doth promise and agree to and with the said Company; " That upon the said change of gauge being effected, in the manner hereinbefore described, all debts and liabilities accru- ed, due by the Company to the Government of Canada, in manner aforesaid up to the first day of January last past shall be discharged and extinguished ; " That the Minister will deliver to the said Company, at Windsor Junction, 9 standard gauge locomotive engines, (3 new and 6 converted ones,) 14 sets of standard gauge passen- ger-car trucks and 145 sets of standard gauge freight-car trucks ; " That the said nine standard gauge engines shall be and remain the property of the Government of Canada, and in no way liable for the debts and liabilities of the said Company. " And it is hereby distinctly understood and agreed between the parties hereto, that nothing herein shall in any wise, (except as to discharging the indebtedness and claims herein above named), alter, vary or interfere with the terms of the agreement under which the said Company hold the said Branch Line ; but that all moneys accrued due, as being one- 296 W. & A. RAILWAY v. W. t any other construction on the Act, and to hold that there existed a deliberate intention of violat- ing their contract- with one party, to enable them to enter into a contract with another,, would be derogatory to the character of the Government and of the Legislature, and as I believe that no such intention existed, so I believe that the words used do not necessarily indicate such an intention. I hold that any act which infringes upon the legal rights of the subject must be so expressed beyond all reasonable doubt; and the enjoy- ment of his property eaamofe be trenched upon by an Act, unless the intention of the Legislature- vs shown by clear words or necessary implication; all that the Legislature intended was to sanction the; transfer of their' property, not the property of the plaintiffs. In Ward v. Scott,~% Catapb. 284, because the Stat. 33 Geo. 3 c. 80 authorized the. Grand Junction Canal Co. to luy land for making the Canal* and to resell such parts a,s ^erenotused for that purpose) . and declared that such sales,, EQUITY. 305 ' conveyances, &c, should be valid and effective at Law to all ' intents and purposes whatsoever, any law, statute, usage or custom to the contrary notwithstanding, it was insisted that sales and purchases of land by that Company, according to the provisions of that statute, were valid and effectual, and the -title could not be objected to, but Lord Ellenborough said; '.'I must suppose the words relied on refer only to the mode^of convey 1 ance without having any operation upon the title to the sub- ject matter conveyed. A contrary construction would be alarming to every land-owner in the Kingdom." " So in this case nothing was in contemplation but the sanctioning of the conveyance of the interest of the Government in the railroad in question. In Dawson v. Paver, 5 Hare, 415, the Vice Ch.,., Wigram, says, " where an Act of Parliament in express ;terms or by necessary implication empowers an individual to take or interfere with the property or rights of another, and upon a sound construction of the act it appears to the court that such - was the intention of the Legislature, it may well be 'the- duty - of the court to give effect to the decree of the Legislature so > expressed, but where an act merely enables an individual; td>'> deal with property of his own for his own benefit, and' "does-; not in terms or by necessary implication empower him tcHakfe" or interfere with the property or rights of others, questions of a very different character arise. Here the distinction between public and private acts becomes material. By a private act I '. do not mean merely private estate acts, but local and personal,', as distinguished from general public acts. Public acts bind all the Queen's subjects, but private acts do not bind strangers , unless by express words or necessary implication. The intent tion of the Legislature to affect the rights of strangers is appar- - ent ; that the defendants' act is a local, personal, and in that sense a private one, does not admit of dispute. It is local as confined to a particular place, and personal as being expressed to be for the benefit of individuals named in it, and not for the benefit of all Her Majesty's subjects ; however all may be benefited by that which improves the particular district." So in Scales v. Pickering, 4 Bing., 448 ; the Chief Justice said; , " If the words of a statute on, which a party relies to justify/ 10 i 306 W. & A. KAILWAY v. W. C. RAILWAY. his entry on the land of another are ambiguous, every pre- sumption is to be made against the party in favor of private property. If such a construction were not adopted acts would be framed ambiguously in order to lull parties into security." In Webb v. Manchester and Leeds Railway Company, 4 My. & C, 116, the defendants claimed to make a cutting through the plaintiff's field, and Lord Ch. Cottenham said; "The powers conferred on the defendants are large, and it may be necessary for the benefit of the public, but they are so large and so injurious to the interest of the individuals that I think it the duty of the Court to- keep them most strictly within those powers, and if there be any reasonable doubt as to the extent of the powers they must go elsewhere and get enlarged powers, but they will not get them from me by way of con- struction of the Act of Parliament." In Stockton and Darl- ington Railway Company v. Barrett, 7M.& G., 879 ; Lord Ch. Ltndhurst said; "In giving judgment it must be observed that in dubio you are always to lean against the construction which imposes a burden," And Lord Brougham on the argument of the appeal before the House of Lords repeated the observation. If in cases like these a strict construction is resorted to that injury may not be done to private individuals, surely where it is contended that an act takes from one class of individuals their interest in a property, and conveys it to another without any compensation, the contention must be supported by such clear and explicit wording of the act as to leave no doubt on the mind that no other meaning can be given to it. As I believe a more reasonable construction can be put upon it, I am disposed to adopt it and thus avoid the very great injustice which would be done to the plaintiffs by the construction con- tended for. Let a statute be ever so charitable, said Lord Holt, (Calladay v. Pilkinton, 12 Mod., 513,) yet if it takes ■ away the property of the subject it ought not to be counte- nanced. Having taken this view of the construction to be put upon the act, it is not perhaps so necessary that I should enter upon the question whether the Parliament of Canada had the power ^ of passing such a statute. It was argued on behalf of the de- EQUITY. 307 f endant that it possessed the power, as it related to a railroad and one which belonged to the Dominion. If the Dominion had no title to the railroad it could hardly be contended that the Parliament of Canada could legislate as to the proprietor- ship of it, ■ merely because it was a railroad, being, as it is, wholly within the Province, and it could only be dealt with by the Local Legislature, like other property situate within the Province not belonging to the Dominion. But it is said that, being public property of the Dominion,- it comes within the powers conferred on the Parliament of Canada. That body has unquestionably the right to legislate as to and to dispose of any property belonging to the Dominion, but only to dispose of the interest it may have in such property. If, for instance, when the Windsor Railroad was originally made over to the Dominion the right to the use of it at a rent had been reserved to the Province of Nova Scotia for a period of years, could the Dominion Government dispose of the interest so reserved to the Province ? Clearly not, and, if not, neither could they dis- pose of the interest of their lessee which was so reserved. While property of the Dominion is one of the subjects over which the Parliament of Canada has the power of legislating, private property and civil rights were placed within the powers of the Local Legislature, and private property and civil rights are both invaded by this act if the right to the posses- sion of the railroad in question belongs, under this agreement, to the plaintiffs. Another ground of demurrer urged at the argument was that the allegations in the Order in Council are to be taken as true, and that whether they are so or not, the plaintiffs are estopped from adducing proof of their untruthfulness. This appeared to me a startling proposition, and I waited with some curiosity to see upon what reasoning or authority it could be supported, but no further argument was adduced than a statement of the proposition, as in the demurrer, and the cases cited, do not, in my opinion, bear upon the question. If such a doctrine could be sustained it leads to this, that a company or private individual, a party to a contract with the Government, is to be bound by a statement of facts made by one of the contracting parties, which. is.to destroy .the rights 308 W- & A. KAILWAY ». W. C. EAILWAT. of the other, not made under oath, of the truth of which the party making the statement has no personal knowledge, and yet the other contracting party, whose rights are affected by it, is not to be allowed to rebut it by evidence. A short reference to the cases cited in support of the defendants' contention will shew that they have no resemblance or analogy to this. Gossett v. Howard, 10 Q., B. 457, was the case of a warrant of the Speaker of the House of Commons, to which validity was given as to a writ of the highest Court, and the statement that a contempt had been committed could not be gainsaid, of which the House itself was the judge. In the Secretary of State v. Kamachee Boye Sahaba, 13 Moore P. C, 56, the pro- perty claimed by the respondent had been seized by the_ British Government, acting as a sovereign power through its delegate, the East India Company, and it was held that the act so done, with its consequences, was an Act of State, over which the Supreme Court of Madras had no jurisdiction. So in Elphin- stonev. Bedreechund, 1 Knapp, 316, the transaction complain- ed of was that of a hostile seizure, made, if not flagrante, yet nondum cessante hello, and consequently it was held that the Municipal Court had no jurisdiction over it. A proclamation of the Sovereign, which is more an Act of State than this Order in Council, in a controversy between individuals in a Court of law, would not be entitled to the consideration contended for, and evidence would be received, that the facts stated in it were unfounded. See Rex v. Sutton, 4. M. & S., 549. Nor would a litigant party be precluded from adducing proof to shew that the statements in the recitals of a statute, the language of all the branches of the Legislature, are without foundation in fact. In Reg. v. Haugkton, 1 E. & B. 501, the -Court so held and decided that such a recital, either of fact, or of law, was not conclusive. The contention of the defendant' on this point is, in my opinion, wholly untenable. Another- ground taken is that if the Court possessed the power of receiving evidence as to the truth of the statements in the Order, in Council, it could only do so in a case where the Crown or the Government of Canada was represented by the Attorney- General and that that offices should have been made a party in this suit The controversy here is merely between EQUITY. 309 the plaintiffs and defendants, each, it is true, claiming under the Dominion Government, but that by no means involves the necessity of making that Government or any of its officers a party, any more than that in the case of two individual litigants claiming under a grantor or lessor being also a private indi- vidual, there would be a necessity of making such grantor or lessor a party. Throughout the argument, it seemed to be assumed on the part of the defendants that they stood in a different position and had other and different rights from what they would have had if they had claimed from a private per- son having the same title that the Government had. Inde- pendently of the Act above referred to, th ey stand, in my opinion, in no other or better position. The Crown has never been deemed a necessary party to the suit in which grantees from the Crown contend, as to the validity of their respective grants, where they conflict, and if a second grant should issue of the same tract of land, on the assumption that the former had been liable to forfeiture for the non-performance of its conditions, the grantee could shew that no forfeiture had in fact been in- curred, or no escheat had taken place or inquest of office, and that, therefore, the second grant was inoperative, and in sxich •suit the Crown need be no party. And I see no reason why, in this case, a different principle should be applied. As regards the plaintiffs' claim for running powers over the Windsor Branch, the defendants demur on the ground that the agreement of the 22nd November, 1866, did not, nor did the legislation thereon give them any lien or encumbrance thereon. But the right of the plaintiffs to these powers is even stronger than their right to operate it under their lease. It was on the faith of a stipulation to that effect that the Windsor and An- napolis Railway was built, and the plaintiffs became the pro- prietors of it. Their Act of Incorporation confirms to them the privilege, and the Government under which the defendants claim, took the road, subject to that right, which is recognized and confirmed by the agreement of the 22nd September, 1871. There is but one other ground of demurrer, which is made to apply to the whole writ, viz., that it does not contain any matter of Equity whereon the Court can ground a decree or give the plaintiffs relief against the defendants, and that the plaintiffs 310 W. & A. RAILWAY v. W. C. RAILWAY. are not entitled to the relief prayed for, because they have a. plain and adequate remedy at law, by action of ejectment, by writ of scire facias against the £rown, or petition of right- The plaintiffs seek no redress against the Crown or the Do- minion of Canada ; all the right to the railroad in controversy which was ever vested in them has passed from them, and, if the defendants have a valid title to it, it is not in the power of the Government of Canada or the Crown to give to the plain- tiffs the relief sought for in this suit, nor could they obtain it under a decree against either of them. And If the defendants have, as they assert, a right to the railroad, to operate it ex- clusively and to prevent the plaintiffs from exercising running- powers over it, they can seek the relief prayed for from them alone. It is quite true that resort cannot be had to a Court of Equity,, where a plain, adequate and complete remedy can be had at law- but the remedy must be so in all respects. If it be doubtful or obscure, or inadequate or falls short in any respect of what the party is entitled to, and does not secure to him the full rights which he seeks, he may come to a Court of Equity for relief. The remedy by ejectment would not give the plaintiffs adequate ■, and full relief, for the object of this suit is twofold ; they claim to have running powers over the road under the original agree- ment made with the Provincial Government, and they claim to operate the railway under the subsequent agreement, and both of these rights, have been interfered with. Now assuming that an action of ejectment would lie as respects the latter, it cer- tainly would not as respects the former; for that the plaintiffs could obtain no adequate relief, except in a Court of Equity ; and this demurrer, being, as it is, to the whole writ, cannot pre- vail, the plaintiffs appearing by it to have a claim which can only be adequately enforced in this Court. A demurrer cannot be good in part and bad in part, so that if the demurrer is gen- eral to the whole, and there is a part to which the defendant ought to put in an answer, the demurrer must be overruled. See Ban. Ch, Pr. 500. Having arrived at the conclusion that the defendants have- failed to sustain their several grounds of demurrer, they must, be overruled with costs. EQUITY. 311! BLACK v. MURRAY, et al., Executors. Defendants' testator mortgaged oertain property to plaintiff who afterwards foreclosed and the property was offered for sale April 10th, 1S76, and bid in by John McDonald, who paid a deposit of $300, but failed to complete the purchase. . The property was again offered for gale November 19th, 1877, and realized a sum which with the deposit paid on the first sale satisfied the plaintiffs' mortgage, and left a surplus of $322.29. Upon this surplus a claim was made under R. S. cap. 21, sec. 81, for taxes due by testator for 1874-5-6-7. McDonald, who had bid in the property at the first sale, held a second mortgage upon it to more than the amount remaining in the Sheriff's hands. Held, that the . statute was not ■■ applicable to the case, as the sale referred to in the first branch of the section was a sale by the person owing the rates at the time of the sale, whereas the testator - had conveyed the property by the mortgages before the rates had become due, and the property had not been taken under any "process- of law" within the meaning of the words in the latter part of the section. Ritchie, E. J., now, (March 25th, 1878,) delivered the judg- ment of the Court : — This suit was brought to foreclose a mortgage made by Nath- an Utley to the plaintiff, and, under an order of foreclosure, the mortgaged premises were offered for sale by the Sheriff of Yarmouth on the 10th April, 1876, and were bid in by John McDonald for $4,476, who then paid a deposit of $300, but he having failed to complete the purchase, the deposit became forfeited, and the mortgaged premises were again offered for • sale on the 19th November, 1877, when they were sold and ' conveyed to Benjamin Hilton by the Sheriff, for the sum iof ' $4,833.42. Out of the amount in his hands, $3 133.42, !, the ■ Sheriff paid to the plaintiff the amount of his mortgage with interest and costs, leaving a balance of $322.29. Utley, the mortgagor, died sometime since, and there was due by his estate for poor, township and county rates, at the time of the first sale of the mortgaged premises under the order of the Court, the sum of $75.89 for the year 1874, $76.26 for 1875 and $36.10 for 1876 ; and previous to the last sale, there became due for 1877, the further sum of $42.80, thus making $231.05 then due by the estate of Utley. For this amount, a claim is made for payment out of the surplus proceeds in the hands of the Sheriff. The claim is made under 312 BLACK v. MURRAY, et al., Executors. the provisions of section 81, of chapter 21 of the Revised Sta- tutes. There was a second mortgage on the property to John McDonald, the person who bid it in at the first sale and for- ■ feited his deposit by nob completing the purchase. The section referred to is as follows; "In case of any transfer of property, the assessment shall be payable by the assignee or occupier; and in case of property taken under execution or any other process of law, the same shall be first liable for any assessment which shall be due and payable thereon, and payment thereof enforced, and the sheriff or other officer shall be bound first to pay such assessment out of the proceeds of the sale." : The previous section had enacted that the warrant of distress for county rates might be levied and enforced on any property owned by the delinquent in any district of the county. The section embraces two objects, one of them is that if a person owns property and is indebted for rates, he should not by selling it deprive the county of the right to resort to it for payment, but that the purchaser should take it subje'ct to the rates ;' the other, that if property of such .a person is taken under execution or any other process of law, it should be first' liable for any assessment due thereon. The •section" is confined to these 'classes of cases and cannot be extended beyond them. The sale referred to in the section is a sale by the person owing the rates at the time of the sale, but Utley conveyed this property when he made the mortgages before the rates in question became due ; all that remained to him was a right to redeem it, and this suit is brought merely to foreclose that right of redemption, he not having paid the amount due by him. The Court having decreed a foreclosure ordered a sale so that the mortgage might be paid, and if more was produced than was sufficient to pay the amount due it might enure for the benefit of subsequent incumbrancers, and if none, for the mortgagor. The amount produced by this sale has not proven sufficient to pay off the two mortgages, thus showing that the property had been mortgaged beyond its value, and that the interest which remained in it to Utley, viz., the equity of redemption, was of no value. A distinction was attempted to be made between the amount EQUITY. 313 forfeited on the first sale and the surplus which arose on the second ; but they stand on the same footing, and must be deemed the proceeds of the mortgaged premises to be applied in payment of the mortgages. Mr. Harrington contended that, but for this claim, the forfeited deposit would be payable to the estate of Utley. I think not. In ordinary cases of a sale it is the seller who becomes entitled to a forfeited deposit. When in money it is considered as a part payment of the purchase money, and not merely as a pledge, and, if not returned to the party making it, it would go to those entitled to the proceeds of the sale of the land. I cannot understand upon what principle Utley's representatives can claim to be entitled to it as against the mortgagees. This sale was by order of the Court for the benefit in the first instance of the parties holding the securities on the propexiy, and they are primarily entitled to whatever is the result of the sale. There can, I think, be no pretence for sustaining the claim now set up under the latter part of the section referred to, for the mortgaged premises have not been taken under execution or any process of law, and it cannot in any way be brought within its terms. The rule nisi must be discharged. PATTERSON, Assignee, et al. v. ARCHIBALD et al. McDonald & Baker having a lien on property of the insolvent defendant, under a recorded judgment, a suit was brought by them as co-plaintiffs with the as- signee to set aside a judgment next previous to theirs, alleged to have been fraudulently obtained. Held on demurrer, that said McDonald and Baker had been properly made parties to the suit, and that although under the Insolvent Act (1875) the assignee had the exclusive right to sue for the rescinding of in- struments made in fraud of creditors generally, and should then be the only plaintiff in the suit, it was otherwise where the. instrument was made in fraud of certain individuals irrespective of the other creditors. Patterson, as assignee of the insolvent Merriam, and the other plaintiffs McDonald and Baker as judgment creditors of the insolvent, brought a suit to set aside a judgment alleged to 314 PATTERSON, etval. v. ARCHIBALD, etml. have been fraudulently entered up against said insolvent, and recorded against his property next preceding the recorded judg- ment of the plaintiffs McDonald and Bakes. Next after the judgment sought to be set aside followed a judgment of the Bank of British North America, also duly recorded. The writ was demurred to on the grounds, first, that the assignee, under the Insolvent Act of 1875, had the exclusive right to bring a suit to set aside the judgment in question as obtained in con- travention of the Insolvent Act, and that the other plaintiffs should not have been joined ; secondly, that said assignee had no interest in enforcing- the lien of the plaintiffs McDonald and Baker, or the Ken of the Bank of British North America ; thirdly, that, the 1 defendants having abandoned their lien by filing claims without reference to the said judgment, as in the bill alleged, the assignee could not ask for the relief sought ion in respect to such judgment; fourthly, that defendants having no interest in that part of the suit relating to the Bank of British North America, all the prayer except that part of it to set aside said judgment was improper ; fifthly, that said McDonald and Baker had no interest in enforcing the lien of the Bank of British North America. Ritchie, E. J., now, (June, 1878), delivered the judgment of the Court: — The object of this suit is to set aside a judgment alleged to have been fraudulently and illegally entered up, which, while outstanding, forms an encumbrance on the property of the insolvent Merriam to the injury of those who have valid claims on it. According to the statements in the writ, the plaintiffs McDonald and Baker have a lien on all the estate of Merriam, situate in the county of Colchester, under a judgment duly recorded next to the judgment sought to be set aside. Then follows the judgment of the Bank of British North America, also duly recorded, and after that and subject to both liens the plaintiff Patterson is entitled to all the real estate of the insolvents as their assignee, and while the first judgment stands recorded as a valid lien on the property, it materially affects its saleable value and so renders it, less available to all EQUITY. 315 who have valid claims upon it. All of the parties against ■whom the demurrer points are directly interested in the result aimed at in the suit ; they have a community of interest in having the judgment in question set aside, and if any of them. had been omitted it might with reason have been objected that all the proper parties were not before the Court. It is the aim of this Court in any suit before it to settle as far as possible the rights of all parties interested in the subject-matter of it and thus prevent future litigation, and to effect this all such parties should be represented. Lord Hardwicke in Poor v.. Clark, 2 Atk.„ 515, says; "You must have all the parties before the Court who will be necessary to make the determin- ation complete and quiet the question." And in Wilkins v. Fry, 1 Mer., 262, Sir William Grant said ; " In equity, all parties interested in the subject of the suit should be before the Court, either in the shape of plaintiffs or defendants."" The case of Briyikerhoff v. Brown, 6 John. Ch. R, 150, bears; directly on the question involved in this. The Court there held that different judgment creditors might unite in one bill the object of which was to set aside impediments to their remedies at law created by the fraud of their common debtor, and to have his estate distributed among them according to the priority of their respective liens. The Chancellor (Kent) said; "The plaintiffs are judgment creditors at law seeking the aid of this Court to render their judgments and execu- tions available against fraudulent arts affecting all of them. * * * * There is no sound reason for requiring judg- ment creditors to separate in their suits when they have a common object in view, which in fact governs the whole case. * * Their rights are already established, and the subject iia dispute may be said to be joint as between the plaintiffs- on the one hand and the defendants on the other, charged with a combination to delay, hinder and defraud the creditors. If each judgment creditor was to be obliged to file his separate bill, it would be bringing the same question of fraud into repeated discussion, which would exhaust the fund and be pro- ductive of all the mischief and oppression attending a multi- plicity of suits. It appeals to me, therefore, that the judgment creditors, in case of fraud in the original debtor, have a right ■316 PATTERSON, et. al. v. ARCHIBALD, et. al. to unite in one bill to defeat and suppress that fraud, and to have the debtor's fund distributed according to the priority of their respective liens, or rateably as the case may be." Every "word of this is directly applicable to the case before us, as much so as it was to that of which the learned judge was speaking. It was urged that under the terms of the Insolvent Act, the assignee has the exclusive right to sue for the rescinding of instruments made in fraud of creditors. Where the instrument is made in fraud of the creditors generally he alone should be the party to prosecute the suit, but where it is made in fraud of certain individuals irrespective of the other creditors, they should be parties, or the Court would not be in a position to do complete justice. The assignee takes the property of the insolvent subject to the legal and equitable claims of others, who are not precluded by the act from making their claims available, if in so doing, they do not interfere with the rights of the creditors generally, as represented by the assignee. Here the assignee and the other plaintiffs have a community of interest, and are acting in unison in their endeavour to set aside a fraudulent judgment injuriously affecting all of them, and I see no objection whatever to the course which has been pursued, nor can I see any objection to the assignee recognizing the validity of the judgments of McDonald and Baker and of the Bank of British North America, if he deems them to be valid, and asserting his right to the real estate bound by them subject to the prior' liens on it. If the defendants who have demurred have practically abandoned their claim under their judgment, as they assume, by claiming on the estate of the insolvent, without placing a value on their security, the plaintiffs are entitled to have the judgment declared void by a decree of the Court, and the recorded encumbrance on the property removed. Instead of demurring, they should have answered, consenting to the prayer of the writ, or, which would have been still more to the purpose, have given the release when it was demanded before the commencement of the suit: The interest of the Bank of British North America is the same in character as that of the plaintiffs McDonald and Baker; though subordinate as being a subsequent encumbrance on the EQUITY. property of the insolvent, and I see no part of the prayer of the writ which is not justified by the: facts stated in it, so that„ in my opinion, none of the grounds of the demurrer can be sustained. I have made no reference to the defendant, Payzant, as no- objection was raised to his having been made a defendant. The demurrer is overruled with costs. BARCLAY v. PROAS. An agreement for the sale of lands good under the Statute of Frauds may be» rescinded before breach of it by parol, provided there is a total abandonment of the whole contract, and not merely a partial waiver of some of its terms ; nor does- the validity of such rescission depend on the existence of a consideration. Ritchie, E. J., now, (July 8th, 1878), delivered the judgment of the Court: — The plaintiff seeks specific performance of an agreement entered into between himself and the defendant on the 9th of November last, whereby the latter agreed to purchase from him certain real estate, one of the conditions of which was that he should receive possession on the 21st of that month. The agreement is admitted, but the defendant asserts that shortly after it was entered into, and before the commencement. of this suit, it was rescinded, and the plaintiff by a writing under his hand discharged him from all liability thereunder,, and that he was not put ; in possession under the . terms of the agreement, and was never tendered with a deed of the pro- perty. As regards the document relied on as rescinding the contract, the plaintiff has replied that it was obtained by fraud and misrepresentation, that it , was signed by him while intoxicated, that there was no consideration expressed in it, nor did any consideration exist, and,, he contends that it was therefore invalid. That the plaintiff signed the document in question is clearly proved by the defendant, and his testimony is corroborated by 318 BARCLAY v. PROAS. that.: of two tether witnesses. The evidence of the plaintiff is far from contradicting their statements, nor is there anything in ihe evidence to support the statement that there was any fraud or misrepresentation on the part of the defendant, and th«se who were present when the document was signed say that they saw nothing to induce them to believe that he was at the time in a state of intoxication. Indeed the plaintiff him- self does not say so in his evidence, nor does he assert that he was induced to drink by the plaintiff, or that he had been drinking any intoxicating liquor. It is impossible to hold the document invalid on these grounds. The only other grounds on which the plaintiff contends that it is invalid are, that it is nudum pactum, and being an agreement to rescind a purchase of land, it comes within the terms of the Statute of Frauds. But whatever opinions may have been held on this subject, it is now well established that an agreement for the sale of lands, good under the Statute of Frauds, may be rescinded before breach of it by parol, provided there is; a total abandonment of the whole contract, and not a ; partial -^waiver of some of its terms; nor does the validity of such rescission depend on the existence of a consideration. See Smith's, L. C, (7th ed.) 351. In Davis v. Symonds, 1 Cox- Cases, 406, the Chief Baron said ; " It is contended that though the agreement did take place, yet it was afterwards waived, and that such waiver may be by paroL; and it certain- ly may be so. The waiver is in its nature subsequent to and necessarily collateral to the agreement, and therefore cannot bear any 1 relation to the rule of evidence that a "Written agree- ment cannot be varied by parol. There might iindeed have been another ride that a written instrument 'shall not be waived by parol, but Courts of Equity do not consider them- selves bound by any such rule, and it is now clear that a written; agreement may be so waived." And again ; " when it is said that parol evidence shall not affect written instruments, the vice of the argument turns upon the use of the word ' affect ', for if it means to vary it, it is true ; if it is to be carried beyond that meaning it is not true. 'There is nothing so clear as the jurisdiction of this Court to affect a written contrast by partfl testimony." And in Robinson v. Page, .3 EQUITY. 319 Russ,, 119, the Master of the Rolls said: "unquestionably, waiver even by parol would be a suffidient answer to the plain- tiff's case. It must be established with clearness and precision, and must amount to a total dissolution of the contract." " It is, says Parke B.,.in Foster v. Dawber,® Exch., 839, 85l, "com- petent for both .parties to an executory contract, by mutual agreement without any satisfaction, to discharge the obliga- tions of 'that contract." In Brooms, :L. M., 889, it is laid down that, "; although, a contract which isirequired to be in writing cannot be varied by a subsequent verbal agreement, it seems that neither the 4th nor the 17th section of the Statute of Frauds can apply to prevent a verbal waiver or abandonment of a contract within its operation from being set up as a good defence to an action upon the contract." And inasmuch as the decreeing of specific performance is in the discretion of Courts of Equity, Whatever remedy. a party may have at law he can hardly expect that such discretion will >be exercised in his favor, when he has agreed to •■abandon his claim to the performance of the contract. Deciding the case on this point, it is not necessary to advert to the cither grounds taken by the defendant. I would merely remark that giving the plaintiff to understand that he relied on his waiver of the contract by the plaintiff, and not being prepared to pay the portion of the purchase money payable in cash, he had no right to the pos- session of the property, nor to have a deed tendered to him. On the other ground,: however; the defendant is .entitled to a decree .in his favor with costs. THE CITY OF HALIFAX v. THE CITY RAILWAY CO. •The defendant Company obtained an Act enabling it to maintain a line of hor.e- cars in the City, but requiring it to provide rails of the most improved pattern, and lay them even with the surface of the streets, so as not to interfere with the passage of vehicles, and to keep the roadway in repair within the track and three feet? on eafcb^ side. Defendants having ceased to operate the line, the roads fell out' of repair and the rails protruded. After the commencement of this suit, Tvhith was for a mandamus to compel the defendants to have the rails laid even -wibh'the-surface, and to put the roads in repair as required by the lAct, the City 320 CITY OF HALIFAX v. CITY KAILWAY CO. authorities in many instances covered the streets on which the rails were laid, with stones. Held, that the City had a right to proceed by mandamus, and was not obliged to resort to an indictment of the nuisance, or to proceedings to fine the defendants under the Act of 1870, Cap. 99, for violation of the provisions of their Act of Incorporation, neither of these courses presenting a remedy as bene- ficial as the proceeding by mandamus, but that the mandamus must be limited in its operation to those streets on which the railway had not been covered by the the City authorities, as the action of the City in this respect had imposed an un- reasonable burden upon the Company in removing the stones. Ritchie, E. J., (Aug. 7th, 1878) delivered the judgment of the Court : — The act which incorporated the City Railway Company and gave it authority, with the consent of the City Council and subject to the regulations imposed by the act, to construct and maintain a line of railway on certain streets of the City, and to use horse-cars thereon for the accommodation of the public, provided that the rails should be of the most approved pattern, and should be laid even with the surface of the pave- ment or street in such manner as not to interfere with the passage of vehicles, and that the pavement or other surface of the roadway should be kept always in thorough repair by the Company within the track and three feet on each side thereof, under the direction of such competent authority as the City Council might designate. The Company, having constructed the railway under the act, ran cars thereon for several years, but have ceased to do so for several years past on certain of the streets, and since June 1876, no cars have run on any part of the line. At the time the company ceased altogether to operate the railway the road was in a bad condition, and' had been more or less so for two or three years previously, notwithstanding repeated appli- cations-were made to the Company to repair it by Mr. Keating, the City Engineer, who had been appointed by the City Council 1 to see that the provisions of the act were complied with. In the year 1876, from- January to the time when this suit was- commenced, applications to have the road put in order were- made without success, and in the latter part of May, when. the. attention. of the Company was called, to- the danger- EQUITY. 321 ous condition of the streets from the rails protruding above the surface, and reference was made to the legal liability of the Company. Mr. Keating was referred to the solicitor of the Company, who would accept service of any process which might be issued at the instance of the City. At the argument it was not denied that the Company had violated the terms of the act of incorporation by allowing the rails of their road to protrude above the surface of the streets through which they were laid, or that they had not kept the roadway in repair as required by the act, but it was contended that the City was not entitled to a writ of mandamus inas- much as~ it possessed a legal remedy independently of it to which it must resort, and that its course was either to proceed against the Company by indictment, or under the provisions of Chap. 99 of the Acts of 1870, which imposed a penalty of from $10 to $20 for a violation of the provisions of its act of incorporation. The object of the present suit is not to punish the Company for the neglect of its duty, but to compel a compliance with the terms on which it was allowed the privilege of laying rails in the streets of the city, so that traffic and travel should not be obstructed. All that could be effected by an indictment would be the imposition of a fine, and there might be no pro- perty upon which even that might be levied, and as the under- taking would seem to have been abandoned since 1876, it is not unreasonable to assume the probability of this being the case. But whether it be so or not, the Company could not by indictment be compelled to perform the duty imposed on it by the Legislature. The same observations apply to the pro- ceedings under the Act of 1870; neither proceeding would afford the relief prayed in this suit, and a mandamus is only refused on the ground that the party seeking it had another legal remedy when such remedy is in all respects as beneficial and effectual, and affords the specific relief sought for. This writ does not seek, and the counsel acting for the City intimates that there is no desire on the part of the City to compel the Company to resume the running of cars. He says that no objection would be raised to the removal of the rails 10 k 322 CITY OF HALIFAX v. CITY RAILWAY CO. altogether and the replacing of the streets in the state in which they were before the rails were laid ; but it is contended on the part of the Company that having ceased to run cars, — in fact, having abandoned the undertaking — no obligation rests on the Company to repair the road or remove the rails. The corporators, in obtaining the act of incorporation, contem- plated a pecuniary benefit, and the Legislature, in allowing the streets to be used to enable them to carry out their object, had in view the benefit which would accrue to the public from the convenience the railway would afford ; and it might not unrea- sonably have been contended that the public had a right to the enjoyment of the railway, and that it was not open to the Com- pany to deprive them of it by abandoning the enterprise. But, whether the rails are used or not, so long as they remain on the streets, the duty imposed on the Company by the act must be performed, so as to prevent their being a nuisance to the City. The case is somewhat embarrassed by the action of the City authorities in having caused the rails in many of the streets to be covered with stones. This was done after the Company had ceased to use the rails, and since the commencement of this suit. It was urged that to grant a mandamus as prayed for, would involve the expense of removing these stones. The effect of the action of the City is to prevent the Company run- ning cars on the rails, if so disposed, and, at the same time, is an obstruction to its putting the railway in the state required by the act, and I may add that it has removed the obstruc- tion to traffic and travel in those streets. The course was no doubt adopted in the interest of the public which was daily sustaining inconvenience from the continuing of the nuisance. But the delay in obtaining a decision in this suit need not have been great ; it was commenced in June, 1876, and the only wit- nesses examined were those produced by the City, so that there is no reason why the cause might not have been brouo-ht to a hearing and judgment given within a few months, — certainly before the end of that year. The City is entitled to a mandamus but it must be limited in its operation to those parts of the railway which have not been covered by the City authorities, and which now cause obstruc- EQUITY. 323 ion to traffic and travel. The decree will be that a mandamus do issue requiring the defendant company to have the rails laid even with the surface of the pavement or street in such a man- ner as not to interfere with the passage of vehicles over the streets, and that the pavement or other surface of the roadway- be put in thorough repair by the defendant company within the track and three feet on each side thereof under the direct- ion of the City Engineer, Mr. Keating. The decree will be with costs. FOKD, Assignee of Morton, v. MILES and others. Sylvanus Morton, on the 26th of April, 1873, made a deed of property without consideration to his daughter, continuing himself in possession of the property until October, 1875, when he failed. Previous to the date of the deed the Liver- pool and Acadia Banks, of one of which Morton was President, and a large share- holder, had suspended ; and a firm in which he was concerned had failed two days before the date of the deed. Previous to the making of the deed the insol- vent had admitted to . a creditor that if certain proceedings threatened against him, as President of said Banks, were taken, he would have to assign. And after the making of the deed he was challenged in reference to it, and said it was all he could do, under the circumstances, to save Mb property. Held, that the deed, having been made at a time when the grantor contemplated a state of things that might result in insolvency, and which did, in fact, so result, must be set aside; even had it not been shown that the insolvent continued in possession, and a few days after making the deed admitted to his creditor that it was all he could do to save his property. Eitchie, E. J., now, (November 1878,) delivered the judg- ment of the Court : — The plaintiff, who is the assignee of Sylvanus Morton, an insolvent, seeks in this suit to have a deed made by the insolvent to his daughter, Annie S. Miles, set aside, on the ground that it was fraudulently made, without consideration, and in viola- tion of the rights of creditors. It is admitted that there was no money consideration, and Morton alleges that he made the conveyance to his daughter as an advancement, as he had done to her elder sisters on for- mer occasions. The deed bears date the 26th April, 1873. It 324 FOKD (Assignee) v. MILES. appears, from the evidence, that on the 14th of that month, the Liverpool and the Acadia Banks suspended payment, Morton, the defendant, being the President of the former bank and a large shareholder in it, before which time the firm of Morton, Collie & Spencer were in financial difficulties, and failed on the 24th April, just two days before the making of the deed. Sylvanus Morton being then indebted to the Mer- chants' Bank of Halifax to the extent of $8,000 or $9,000, of which from $5,000 to $6,000 have not been paid to the present time, and being largely liable to other banks, addressed the following letter to the Cashier, Peter Jack : — " Milton, 24th April, 1873. " Dear Sir, — " By yesterday's mail I received advice that paper to the amount of $2,500 had been protested, and my name is on for $1,600 more. I feel bad about it, but it don't alarm me, if Montreal, Merchants, and B. B. North America will collect all they can from the makers and endorsers and let me pay the balance, or if they give me time. Will you see parties for me, (Duffus & Co. in place of Merchants' Bank,) and let me know the result. I beg of them not to amerce me heavily with damages." Morton was a partner of the firm of C. & J. Morton & Co., and of that of Morton & Co., but retired from them in Janu- ary, 1873. At that time C. & J. Morton & Co. were indebted to Cook, one of the witnesses, between $5,000 and $6,000, and in February of that year, Morton admitted to Cook that the firm was in difficulties and required a good deal of money, which if they did not get they must stop ; and on the 22nd April he told him that he had been threatened with proceedings against him, as President of the Liverpool Bank ; that he owed him, and was indorser on the paper of the firms of Morton & Co. and C. & J. Morton & Co., and if the threatened proceedings were taken, he should have to make an assignment ; and when he was challenged a few days after with having made the deed in question, he admitted that he had made it, and said that it was all that he could do, under the circumstances, to save his property. Cook then demanded from him the amount he owed him, and told him that if he could not pay him he should consider the conveyance void. He did not pay, and EQUITY.. 325 the debt still remains unpaid ; and a month or more after that Morton spoke to Cook about placing his property in trust for the benefit of his creditors, and spoke of Mr. Jack as the trus- tee. Morton never parted with the possession or use of the property, but remained in possession till October, 1875, when he made an assignment under the provisions of the Insolvent Act of 1875. His assets, as then stated by himself, amounted to $57,000, and the claims against his estate to $130,500. The amount received from the assets has been $10,000, and as. much more is all that is expected to be realized from them. His liabilities to the Bank of Liverpool alone amounted to -^34,319, and the claims against the estate embrace large amounts due anterior to the giving of the deed. No evidence was produced on the part of the defendant to show that, not- withstanding all this, he was in fact solvent when the deed was executed. In order to render such a voluntary conveyance void as against creditors, it is not necessary to prove that the party making it was at the time absolutely insolvent; it is enough to vitiate it if it has been made to appear that, at the time, he contemplated a state of things which might result in insol- vency, though he may have continued solvent for some time after. See Mackay v. Douglas, L. R. 14 Eq., 106 ; Townsend v. Westacott, 2 Beav., 340, and 4 Beav., 58 ; Freeman v. Pope, L. R. 9 Eq., 206, and L. R. 5 Chy., 538 ; and Spirett v. Willows, 3 DeG., J. & S. 293. The language of Lord Langdale in his judgment in Town* send v. Westacott, in which case there was no positive proof of insolvency at the date of the conveyance, but the party making it became insolvent three years after, seems peculiarly applicable. He says : " In the first place, it is alleged on the part of the plaintiff that the deed was executed entirely with- out consideration ; that is admitted. In the next place it is said that the settlor was largely indebted at the time, and of this there is strong evidence. Being largely indebted, he made this voluntary conveyance, and in less than three years after- wards he became absolutely insolvent. On these facts alone, provided they were properly put in issue and proved, I am of 326 CAPE BRETON CO. (Limited), v. DODD et al. opinion that this conveyance ought to be set aside as fraudu- lent." And again : " It is urged that something amounting to insolvency must be proved to set aside a voluntary conveyance. This is inconsistent with the principle of the Act, (13 Eliz., c. 5,) and the judgment of the most eminent judges." Morton's deed to his daughter was entirely without con- sideration ; when he made it he was largely indebted, and the debts remain unpaid at present. In less than three years he made an assignment under the Insolvent Act, and at the very time he made the deed circumstances had occurred which caused his pecuniary embarrassment, which he feared might lead, and which did, in fact, lead to insolvency. To render this deed fraudulent against the creditors, it did not require the additional facts in evidence, that from the time he made the deed to his insolvency, he never parted with the possession of the property, and that a few days after making it, he said to one of his creditors that it was all he could do to save his property. The decree will be that the deed be declared fraudulent and be set aside with costs. CAPE BRETON CO. (Limited) v. DODD, et al. Seourity for costs ordered where 1 the insolvent plaintiff Company, though in- corporated in the Province, was registered in England, and had its directory and place of business there; and the parties using the name of the Company in the suit were not in the Province. Ritchie, E. J., now, (Dee. 1st, 1878) delivered the judgment of the Court : — The plaintiff Company, though incorporated in this province, had been previously registered in England as a Company limited, under the provisions of the Companies' Acts of 1862, and 1867. The directory of the Company and its place of business are there, and, having become insolvent, it is now in course of being wound up there by liquidators under those Acts: EQUITY. 327 The Company is to all intents and purposes an English Com- pany, this Province being merely the locality of their opera- tions in mining and constructing railways ; and as not only the Company is shown to be insolvent, but the parties using the name of the Company in this suit are not in the Province, security for costs should be given. In the Imperial Bank of China,, etc., v. Bank of Hindostan, L. R. 1 Ch., 437, an order for security was made, on the ground that the plaintiff bank, (being limited), was in course of voluntary liquidation. The application was made under the Companies' Act of 1862, and the only question raised was as to the amount, a larger amount being required under it than under the ordinary practice of the Court. See also in re Home Assurance Association, L. R. 12 Eq., 112, where security for costs was ordered. The rule will be made absolute with costs. MEAGHER v. THE QUEEN'S INSURANCE COMPANY. Plaintiff brought this suit to compel defendants to deliver to him a policy of •insurance for $600, alleging that they had received his premium on the 27th Nov , 1877, and undertaken to insure his house for a year from that date, and to deliver a policy to that effect. The building was destroyed by fire in December, 1877. Defendants alleged that they had been induced to enter into the contract by the misrepresentation of plaintiff, that the Building Society were about to advance $600 on the property, and that they had undertaken to insure it, not for the plaintiff, but for the Society. At the hearing plaintiffs counsel asked fo r a, decree for a policy, and also for the payment of the money. Held, that, even if suoh relief could be granted it could only be upon a bill asking for it, whereas plaintiff had in his writ asked only for a polioy ; and further, that as the evidence was directly in conflict on the point as to misrepre- sentation, and as to the terms of the contract, plaintiff should be left to his remedy at law. Bill dismissed without costs. Ritchie, E. J., now, (December 16th, 1878,) delivered the judgment of the Court : — The suit is brought to compel the defendants to make and deliver to the plaintiff a policy of insurance against fire. He 328 MEAGHER v. QUEEN'S INS. CO. alleges that they undertook and agreed to insure his house for $600 for one year from the 27th November, 1877, on which day he paid them the premium agreed upon, and the price of the policy, and they then agreed to grant and issue to him the policy as soon as the same could be prepared, he having taken from them a receipt for the money in the meantime ; that on about the 2nd December following, the house was destroyed by fire, and the plaintiff having delivered to the defendants under oath a statement of his loss, demanded payment, which was refused. He then demanded from them the -policy of insurance ; this also was refused, and he now seeks the aid of this Court to obtain it, and he prays that they may be decreed to deliver to him a policy of insurance in the usual form issued by them, as agreed upon by and between them, and that he may have such other relief as is in accordance with equity. The defendants assert that the agreement which they were in- duced to enter into arose out of false and fraudulent repre- sentations made to them by the plaintiff as to the ownership of the property and its value, and that it was never agreed, nor was it contemplated, that the policy was to be made to the plaintiff, but to the Building Society of Halifax, who had, as the plaintiff asserted, agreed to advance to him the sum of $600, whereas the Society, in fact, never agreed to advance, and never have advanced or loaned that or any other sum to him. At the hearing the plaintiff's counsel not only asked for a decree requiring the defendant to execute and deliver to him the policy of insurance, but, a loss having taken place, they asked that they should be decreed to pay to him the amount of the toss he had sustained. It may be that where a party is compelled to resort to a Court of Equity to compel the granting of a policy, it would, to avoid multiplicity of actions, decree the payment of the loss, and thus afford a complete remedy ; but the writ must have contemplated that, and must have been pre- pared accordingly. The defendants could never have anticipated from this writ that more would be asked than that they should deliver a policy. The defendants were not only entitled to know what facts the plaintiff proposed to prove ; they were also entitled to know what relief was sought, and the plaintiff EQUITY. 329 is not entitled to any relief of which the special prayer has not apprised them. The general prayer may cure any slight omission or deficiency in the bill, but it cannot cover relief of a different character from that specifically prayed for. In this case, however, the plaintiff is met with a difficulty in the way of his obtaining even what is prayed for. To entitle him to succeed he must show, not only that there has been no misrepresentation or concealment on his part, and that his conduct has been fair and just in every respect, but the terms of the agreement sought to be enforced must be clearly and definitively ascertained. Now, the evidence on the part of the plaintiff and defendants, both as regards the alleged representations of the plaintiff and the terms of the contract, is in direct conflict, and, as the plaintiff is not with- out remedy at law by which he can obtain redress if he can satisfy a jury that he is entitled to it, he should, under the circumstances, be left to resort to it. There are, it appears to me, two courses open to him at law, either to bring an action for the non-delivery of the policy, as was done in Robertson v. Dudman, where the verdict was sustained after argument, (1 Russell & Chesley, 50,) or to bring an action on the agree- ment to insure, if the agreement to insure was actually made and all that remained to be done was the preparation of the formal document to embody the agreement already entered into. I know of no absolute necessity for a written policy in an insurance of this nature, especially where there has been a payment and receipt of the premium. Notwithstanding these remedies, however, I should have considered the plaintiff entitled to a decree to have a policy delivered to him, if the evidence had satisfactorily established the terms of the con- tract and his freedom from misrepresentations ; and, deciding as I do upon the evidence on these points being contradictory, the writ will be dismissed, but without costs. 10 I 330 KOBINSON et al. v. HENDRY. ROBINSON et al v. HENDRY. A testator devised land to M. E. R. , giving her in terras an estate for life, the property to go at her death to her children then born, whom he designated by name, and to such other children as she might have, and their lawful children, and to their heirs lawfully begotten. In the next clause he declared that it was his will that the property should be entailed upon the direct descendants of his four children and their offspring forever. In the codicil to his will he referred to the! estate he had given by his Will as an estate for life to his children, (one of whom was M. E, R.,) and stated that he had entailed the property on their children. Held, that the words denning the persons to take on the expiration of the life estate were intended as a designatio personarum and not as Words of limitation ; that the rule in Shelby's case did not, therefore, apply, and the devisee took only a life estate. Ritchie, E. J., (January 20th, 1879,) delivered the judg- ment of the Court ; — The plaintiffs in this suit seek partition of certain land referred to in their petition, to which the defendant denies their right, they having, as he alleges, no estate or interest in it. Both the plaintiffs and the defendant claim under the will of Conrad Deal. The former contend that under it Mary Eliza- beth Robinson, now deceased, who in her lifetime conveyed the property in question to the defendant, took but a life estate, and that at her death the plaintiffs became entitled to it, while the contention of the defendant is that she became tenant-in-tail, and, by virtue of the statute abolishing estates tail, became tenant in fee-simple, and that he, under his deed, is absolute and sole owner of it. The clauses of Deal's will which were referred to at the hearing as alone affecting the question, were the fourth, sixth, seventh, and ninth, and the codicil. By the first of these the estate given to Mary Elizabeth Robinson is in terms an estate for life, and at her death the property is to go to her children then born, who are designated by name, and to such other children as she might have, and their lawful children, and to their heirs lawfully begotten. The next clause declares that it is his will that the property should be entailed upon the direct descendants of his four children and their off-spring forever. The other two clauses were obviously merely inserted to indicate the locality of the respective shares, with- EQUITY. 331 out reference to the estate to be taken ; and the same remark applies to the codicil. In that, however, he refers to the estate he had given by his will as an estate for life to his children, one of whom was Mrs. Robinson, and states that he had entailed the property on their children. Nothing can be more explicit than the terms in which the testator has limited the estate he gave Mrs. Robinson to a life estate ; yet, notwithstanding an estate for life was given in the most emphatic manner, if there had been a limitation afterwards to her heirs or the heirs of her body, or by some such words, such a limitation would have given her an estate in fee-simple or fee-tail, but the words used must be words of limitation and not words of purchase; and wherever the words used are intended as a designatio personce, the person indicated takes as a purchaser, and the rule in Shelly's case does not apply. That rule will not apply if there are words referring not merely to the mode of succession, but to the objects of succession, indicating them to be individuals other than the persons who are simply to take as heirs. Here the persons to take at the expiration of the life estate are desig- nated by name and the limitation is not to the heirs of the tenant for life lawfully begotten, but to those of the children named ; nor are there any words annexed to the tenant for life which can be held to be words of limitation. Indeed, if the children of Mrs. Robinson had not been designated by name, and the word " children " only had been used, that being a word of purchase and not of limitation, I should have held that the rule did not apply, especially as the children were in existence, and the words which limit the estate-tail are not annexed to the tenant for life. I never heard of a case where, after an estate for life was given, and there was a limitation over to persons named and to their heirs or the heirs of their body, the first estate was ever enlarged beyond the estate given. This I intimated at the hearing, for I then entertained no doubt on the question, but, in deference to the Attorney General who referred me to some authorities which he thought bore on the subject in favour of his client, I deferred giving judgment till I should have looked into them. This I have done, but they do not appear to me to con- 332 McKAY v. SUTHERLAND et al. flict with, but rather to sustain the view I have taken of the case. The plaintiffs are entitled to a decree for partition, with costs. McKAY v. SUTHERLAND et al. Injunction dissolved on the ground, inter alia, that all the material allegations on which the writ was granted were denied by defendants. Ritchie, E. J., (March 3rd, 1879,) delivered the judgment of the Court : — The plaintiff and defendants are tenants in common of the lot of land on which the defendants have cut timber, the removal of which the plaintiff seeks to restrain by an injunc- tion. He also seeks to restrain them from cutting other tim- ber on it. The land is wilderness land chiefly valuable for its timber. After reading the affidavit and papers on which the injunction was obtained, and those on which the rule nisi to dissolve it was granted, I cannot infer that what can be termed waste has been committed by the defendants, — cer- tainly nothing like malicious or wanton destruction of the property ; what they have done was putting the land to its legitimate use. But whatever inference to the contrary could have been drawn from the plaintiff's writ has been denied by the defendants in their answer and the affidavits they have produced ; and they have alleged that they have not appro- priated more of the timber than they could justly take, as tenants in common with the plaintiff. One tenant in common has not a right to an injunction against his co-tenant for waste unless it is made to appear that the party committing it is incapable of compensating the other for the injury done him. The evidence in this case is far from going to that extent, for though the defendants became insolvent a compromise was effected under the Insol- vent Act, whereby they were to pay their debts by instal- ments which they have so far carried out ; and they have shewn that they have funds more than sufficient to pay all the instalments. EQUITY. 333 Where a tenant in common has reason to fear that his co-tenant is taking, or is about to take, more than his share of timber on land such as this he can apply for a partition, and, pending the proceedings to obtain it, this Court can, if it appear proper, enjoin both parties from cutting or taking tim- ber until partition is made ; but under ordinary circumstances each tenant has the right to the use and enjoyment of the property, and, unless he can cut and remove timber from such land as this, he can have no enjoyment of it. In the present case the rule nisi to dissolve the injunction should be made absolute, independently of anything else, on the ground that all the material allegations on whieh the writ was granted have been denied. THE NOVA SCOTIA SALT WORKS AND EXPLORA- TION CO. v. THE HALIFAX AND CAPE BRETON RAILWAY AND COAL CO. Plaintiffs applied to amend their -writ "by adding a defendant on the ground that a defect existed in the organization of the defendant company and in order that, in the eyent of failure -against the defendant company, they might have relief against the defendants whom they ought to add. Held, that the amendment could not "be allowed. Ritchie, E. J., (March 15th, 1879,) delivered the judg- ment of the Court : — This application is made to amend the writ by adding one Harry Abbott as a defendant, on the ground that it has come to the knowledge of the plaintiff company that a defect exists in the organization of the defendant company and they wish Mr. Abbott to be made a defendant so that, in case of failure against the defendants, they may have relief against him as a corporator and a party interested in the proceedings of the company. Such an amendment could not, I think, be allowed, and if the writ had been so framed in the first instance, or if the amendment to it were now made, it would be demurrable. This I intimated at the argument, and the 334 HOGAN v. HOGAN. view I then took I find supported by authority in ClarJc v. Lord Rivers, L. R. 5 Eq., 91. The Vice-Chancellor remarked that he had never seen a bill so framed before, and he did not believe any one in Court had ever done so, and in his judgment, he said, " I proceed on the broad grounds that I do not believe it is within the jurisdiction of the Court to entertain a bill in this alternative form ; you may pray alternate relief against the same defendant or defendants, but you cannot bring different sets of defendants and say, — ' If I am not entitled to relief against A, I am entitled to relief against B ;' you must make up your mind against whom you are entitled to relief." But, independently of this difficulty, amendments are not allowed which involve an entirely new case, and, as against Mr. Abbott, individually, this amendment would necessarily be such. HOGAN v. HOGAN. Plaintiff instructed his brother to purchase certain land for him, the deed to be taken in the brother's name, but in trust for the plaintiff for life, after his. death for his children, and in case of his death and the death of his children, in trust for his wife. The land was purchased and plaintiff paid the amount of the purchase money, but the deed was made out to the brother in trust to pay the proceeds to plaintiff's son, then living-, and in the event of his death to other sons, &c. Plaintiff went into possession and lived on the premises without any intimation that he had not a right to do so, and did not discover the omission of the trust for his own life till after the death of his brother, being- an illiterate man and not having ever learned the contents of the deed. His evidence as to the intention was uncorroborated and uncontradicted. Held, that the plaintiff was entitled to have the deed rectified. Ritchie, E. J., (May 17th, 1879,) delivered the judgment of the Court : — It appears from the evidence that the plaintiff instructed his brother, John Hogan, to make a purchase for him of the property mentioned in the writ, intending to have the deed made to his brother, but in trust for the plaintiff during his life, and after his death for his children ; and in case of the death of himself and his children, for his wife during her life. At this time he had but one child, John. The property was purchased and the plaintiff paid the amount of the pur- EQUITY. 335 chase money ; but, instead of his intentions being carried out, the deed was made to John Hogan, the brother, in trust to hold the land and premises and collect and receive the rents and profits, and to pay and apply them to the maintenance, education, and support of John Hogan, the plaintiff's son, until he should attain the age of twenty-one, and on his attaining that age, in trust, to convey the same to him in fee- simple ; and in case he should die before attaining that age, then in trust to hold the same for whichever child of the plaintiff should first attain the age of twenty-one years, and if all of them should die before attaining that age then in trust for Mrs. Hogan, the wife of the plaintiff, to allow her to collect and receive the rents and profits, free from the debts and control of her husband, and at her death for the execu- tors, administrators and assigns. The plaintiff is an illiterate man who can neither read nor write, and he never knew the contents of the deed, which was never read or communicated to him till after the death of his broiher; and as soon as he ascertained them, he instructed his solicitor to have the deed rectified. After the purchase the plaintiff went into possession of the premises and has since lived there, and no intimation ever was given him that he was not entitled to do so. John, the son of the plaintiff, named in the deed, died an infant. The plaintiff has now four children, all infants, of whom the defendant is the eldest, and the plaintiff, under these circum- stances, asks the Court to decree that the deed should be reformed by substituting for the trusts contained in it the trusts which he had desired to have inserted in it at the time the purchase was made, and which he believed, until after his brother's death, had been contained in it. This Court will not hesitate to correct a mistake in such an instrument where it is made to appear, by satisfactory evi- dence, that the terms of it are not what the party intended. It is clear, from the evidence, that the land was purchased with the funds of the plaintiff, and his wishes as to the trusts to be inserted in the deed should have been carried out. It is true that the only evidence we have of what they were comes from the plaintiff, but his statement is uncontradicted, and we have no reason to doubt its truthfulness. That he, 336 HOGAN v. HOGAN. the father of a young family, should deprive himself of all interest in and control over a property purchased with his own funds, and apparently all or the most of the means which he possessed seems to me unreasonable. That he should have con- templated doing so is most improbable, and such a provision in such a settlement of property is most unusual. Nor is the disposition of the whole in favor of one child to the exclusion of all the rest a course very likely to be adopted by a person in the circumstances of the plaintiff. In Smith v. Iliffe, L. R., 20, Eq., 666, there was, as here, the sole uncontradicted evidence of the party seeking to have the settlement rectified. The Vice-Chaneellor said, — " In the present case the wife states positively that it was not her inten- tion that she should be deprived of the control of her property in the events which have happened, and against that statement there is not a particle of evidence. Such a state of things as this must, according to the practice of the Court, have great weight, and there is abundant ground for holding that the plaintiff is entitled to have the settlement rectified in such a way as that, in the events that have happened, the property may be hers absolutely." He had previously quoted the language of Vice-Chancellor Hall, in Re Best's Settlement, L. R., 18 Eq., 686, " that nothing can be more improbable than that a lady, in making a settlement of her own property, should intend to put it beyond her own control in the event of the husband dying, and there being no child of the marriage." And in Be la Touche's Settlement, L. R., 10 Eq., 599, it was contended that rectification could only proceed on admission by all parties of the fact of a common mistake, and the counsel appearing for an infant asserted that he could not admit the existence of any mistake, but the court nevertheless decreed that a mistake did exist, and made the decree in accordance with the correction of it. In this ca«e there is, I think, ample evidence to shew that the plaintiff's intentions as to the trust to be inserted in the deed to his brother were not carried out, whether from mis- understanding or otherwise, and the plaintiff is entitled to have the deed rectified by inserting in it the trusts which he contemplated having in it when he made the purchase. The costs will be paid out of the trust property. EQUITY. 337 WOODWORTH v. WOODWORTH. Plaintiff, as administratrix, sought to foreclose a mortgage for £200 made by- defendant ; who, in his answer, set out a series of transactions with the deceased in regard to the mortgage, and further alleged that deceased mortgagee had delivered to him a memorandum, signed by him, as follows: — ''The mortgage which I hold of W. J. W., bearing date, (&c.), for £200, is not payable to my heirs, executors or administrators after my death. — I. W. W." The memorandum was not produced, but on proof of loss, secondary evidence was given, which the Judge considered of a suspicious character. Held, that the memorandum, even if there were no suspicious circumstances about it, would not operate as a release of the mortgage, either at law or in equity, and that plaintiff was entitled to a decree. Ritchie, E. J., (May 17th, 1S79,) delivered the judgment of the Court : — The plaintiff seeks to foreclose a mortgage made by the defendant to Ingram W. Woodworth to secure the payment of £200 with interest. The defendant in his answer admits the making of the mortgage and alleges that he purchased the mortgaged premises from Ingram W. Woodworth, for which he was to give £50 in cash, an annuity of six pounds a year during the life of Ingram W. Woodworth, and this mortgage for £200 ; and, for the fulfilment of these terms, one Asael B. Woodworth became security ; that the £50 was then paid, and he, the defendant, paid the annuity and interest on the mortgage till the winter of 1868, when Asael left the province. He goes on to state that the defendant offered to procure other security, but, instead of accepting such offer, Ingram proposed that the defendant should pay him £100 and an annuity of £12, the same to be in full discharge of the mortgage for £200 and annuity of six pounds, and thereupon the defendant gave him two promissory notes for the £100, which he subsequently paid, that he also paid the annuity of £12 up to the death of Ingram, and it was agreed between them that the mortgage should be delivered up to him at Ingram's death, who died on or about the 16th January, 1873. He further alleges that subsequent to the payment of the two notes Ingram delivered to him a memorandum signed by him, as follows : " The mortgage which I hold of William J. Woodworth, bearing date January 25th, 1865, for two 338 WOODWORTH v. WOODWORTH. hundred pounds, currency, is not payable to my heirs, executors, or administrators after my death.- — I. W. Wood- worth ;" and he now submits that he is entitled to have the mortgage released and to be relieved from the payment of the amount secured by it. In support of this defence the defendant himself appears as a witness, and as he, under the statute, is precluded from giving evidence of any transactions or agreements with the deceased mortgagee, or of any statements or acknowledgements made by him, or of any conversations with him, his testimony as to the alleged verbal agreement must be excluded, so that our attention must be confined to the evidence afforded by the written memorandum referred to ; and, as there is no other evidence of such an agreement having been made, the whole defence depends upon proof of such a memo, having been made and on its effect. The memo, itself is not forthcoming. The defendant asserts that his dwelling house was burned and in it this memo. ; that he had previously shewn it to the plaintiff, who acknow- ledged that it was in the handwriting of her husband, i. e., Ingram, except one word, the word two, which she said should be one, which was a difference of £100. He afterwards said that what he meant by the plaintiff objecting to the word two was because it was blotted ; it looked as though it had been spelled wrong and altered, that was his supposition ; he did not know why it was blotted. On his cross-examination a paper was produced which defendant admitted to be in his handwriting, containing a list of the notes of hand and mort- gages of Ingram's estate, and among the latter was that of W. J. Woodworth, the defendant, for $800. William Faulkner saw the memo. ; he did not remember whether before or after Ingram's death ; it was in Ingram's handwriting; there was disfiguring or blurring of the word " two," as if wrongly spelled and corrected ; it was plain that something had been done ; it was the same ink ; the first letter of the word was not altered, it was the word two. Wm. W. Pecking says he saw the memo, in defendant's possession after Ingram's death ; it was in the handwriting of Ingram ; the word " two " was same ink and same writing as the rest. On cross-examination EQUITY. 339 he says the word "two" had something peculiar about it; it was written with a capital " T." and appeared to have been corrected. Lizzie Faulkner says she saw it in defendant's possession before Ingram's death ; one of the figures was a little blurred, she thinks the figure two ; it was in writing ; no difference in the ink or in the writing. Mrs. Nancy Faulkner saw the paper after Ingram's death in defendant's possession ; she remembers there was a word blurred ; thinks it was the amount ; same ink and same handwriting, that of Ingram. The plaintiff in her testimony admits that the memo, which was shewn her was in the handwriting of her husband, Ingram W. Woodworth ; she can't speak as to the word " two "; she told the defendant when it was shewn to her that she did not like that spot, meaning the blot on it ; referring to the memo, she saw she said the writing above it was torn off, she saw the mark on the paper where some writing had been torn off; she said that the day before the funeral the defendant asked her if she knew that his uncle, i. e., Ingram W. Woodworth, was going to give him £100 ; she said she did not, but that if he intended doing so it was all right ; he did not say to her he intended to give her the farm. She said that some time after the funeral the defendant looked over his private papers ; among them he opened the mortgage in question, and a paper fell to the floor ; he picked it up and covered it on his knee with his hand, and asked for another paper ; that she turned to get it, and when she again turned he was holding up his papers, and she did not see any more of the paper he had picked up. She does not know what paper it was. She afterwards had a conversation with him ; she accused him of having taken the paper spoken of and put it up his sleeve ; he denied at first and afterwards said he had picked up a piece of paper from the floor which he had after- wards found in his trousers' pocket ; that was some weeks after the funeral ; she asked why he had not returned it, to which he made no reply ; he did not say what the paper was- Independently of the question as to the legal effect to be given to such a memorandum, it is impossible to view the document otherwise than with suspicion. An important word is admitted to have been altered ; its terms are only given from 340 WOODWORTH v. WOODWORTH. recollection. It is said by the plaintiff to have had traces of other writing on it which had been torn off, and this is not rebutted or explained bj T the plaintiff himself or any of the witnesses who saw the paper ; nor is he re-called to deny or explain the statement that he had posseseed himself of some paper which fell from the mortgage when he was examining the papers of the estate of the deceased mortgagee, nor the statement of the plaintiff that he then made no such claim as he now does, but asserted that the deceased intended to give him £100. If this could, it certainly should have been done. One of the, witnesses who spoke of having seen the memoran- dum, and only one of them, testified to having seen the paper in the defendant's possession before Ingram Woodworth's death, but she refers to nothing as fixing the time in her memory, and it is a circumstance in which a witness might be easily mistaken. If such a memo, under other circumstances would operate as a release of the mortgage and discharge the debt, I should not be prepared to give any such effect to one surrounded with such suspicion as this is. But in my opinion such a document has not and ought not to have any such effect if unquestionably genuine. That at law it can have no such effect is beyond a doubt. The instrument sought to be released is under seal and can therefore only be released by one of as high a nature. It is an old maxim nihil tarn conveni- ens est naturali cequitati quam unumquodque dissolvi eo ligamine quo ligatum est. This being the case in law does a different rule prevail in equity ? In Cross v. Sprigg, 6 Hare, 552, the Court held that unless there is a consideration or some equitable ground of distinction, equity in such cases follows the law. The evidence in that case was that the testator, at several different times before his decease, told the witness, a clerk of the firm of which the testator was a partner, that he never intended the obligee of the bond to pay the amount of it as he always considered it a gift, and that the defendant, the widow and administratrix of his estate, told the witness that her late husband, shortly before his death, while he was ill in bed, told her that the oblio-ee was not to be called on for the money in respect of the bond. The EQUITY. 341 Vice-Chancellor said : " The first question is whether the testator's declaration justified the conclusion that he had abandoned all intention of recovery upon the bond, and, if so, secondly, what were the consequences. As to this 1 have no hesitation in holding that the debt remained at law, and if at law it must remain in equity, unless some special grounds were laid for a different conclusion." The previous authorities were cited and commented on. In Peace v. Hains, 11 Hare, 151, a testator wrote in his account book opposite the entry of two debts owing to him by his brother, one due on mort- gage and the other on a promissory note, the words " not to be enforced." The Vice-Chancellor said : — " The authorities amount to this, that if a person found to be a debtor and seeking to be relieved from the debt on the ground that some act of the deceased creditor, voluntary or otherwise, has put an end to his liability, he must claim that relief in one of two ways; either the act upon which he relies must be one which would have entitled him to relief in this Court as against the creditor in respect of the debt, or it must be such as will operate as a release of the debt at law. There is nothing in the evidence which shews that the debtor is discharged in either of these ways ; there is certainly no release at law, as the debt is secured under seal. ' Not to be enforced ' assumes the security to be valid and continuing and capable of being enforced." On the part of the defendant Teomans v. Williams, L. R., 1 Eq., 184, was cited to shew that Cross v. Spriggs was not recognized by the Master of the Rolls a,s law, but, as I read the case, he recognizes it as such and distinguishes it from the case before him. Taylor v. Manners, L. R., 1, Ch. 48, was also cited, but that case had relation to a debt due on an agreement not under seal, and the policy, the subject of the agreement, was given up, and there was an agreement to release for a consideration, though a small one. It was heard by two Judges only, who differed in opinion. One of them, Knight Bruce, L. J., remarked : "lam not satisfied, there- fore, that from its nature the transaction is capable of being supported without valuable consideration," and •' I am not satisfied that there was valuable consideration, whether, in 342 McKINNON v. McDOUGALL. fact, the payment amounted to anything more than a payment by a debtor to his creditor of a less amount than the sum due." That the mortgagee here had no intention of giving up the debt or releasing the mortgage when he made the memo- randum is evident ; he not only retained the mortgage in his possession, but received the interest on it as interest up to the time of his death, and we find this interest charged in an account book of his, subsequently to the making of the memo- randum and the statement signed by the defendant ; and if the document was intended to take effect only at his death it would assume the character of a testamentary instrument, and, as such, would be inoperative, not having been duly attested. Though there has been no release at law nor anything that amounted to a release in equity, yet if the position of the defendant has been injuriously affected by the act of the mortgagee this Court might not allow him to enforce his security ; but this has not been the case, and a party cannot establish in equity a release or forgiveness of a debt by merely shewing an expressed intention to release the debt if there has been nothing which amounted to a release at law. The plaintiff, therefore, is, in my opinion, entitled to a decree of foreclosure with costs. McKINNON v. McDOUGALL. Plaintiff, in his writ, sought to have a judgment, entered against him in the County Court upon a confession signed by him when under the age of twenty-one, declared null and void, and moved for an injunction to restrain a sale under execution, upon affidavits verifying the statement contained in the writ, that the Warrant of confession on which the judgment was entered had been procured from him by deceit and imposition. No foundation was shown for this statement. Hdd, that the defendant could not be restrained, first, because of the falsity of the material statements on which the injunction was moved for ; secondly, because there was an adequate remedy at law by setting the judgment aside ; and, thirdly, because the injunction was not specifically prayed for, and could not be granted under the general prayer for relief. Ritchie, E. J., (June 23rd, 1879,) delivered the judgment of the Court : — The plaintiff in his writ asks this Court to declare a judgment entered against him by the defendant in the County EQUITY. 343 Court at Port Hood to be null and void, and to set it aside with costs, on the ground that when he gave the warrant to confess judgment he had not attained the age of twenty-one years by some months, and that the warrant was obtained from him by fraud, deceit and imposition. The warrant was given by the plaintiff on the 6th February, 1878, for $40.77, and judgment entered on the 9th February for that sum and $9.85 costs ; and on the 6th of May last the plaintiff took a rule nisi for an injunction to restrain the defendant from selling real estate levied on and advertized for sale under an execution issued on the judgment on affidavits verifying the statements contained in the writ. Though the plaintiff, in his writ, has made the positive statement that the warrant of confession was obtained from him by fraud, deceit and imposition, and has made an affidavit that the statements so made are true, it is now obvious from the affidavits before the Court that there is no foundation for the charge so made against the defendant, The statement I have referred to is important, — so much so, that if it had been true the plaintiff would have been entitled to an injunction ; but his having made so seiious a charge without any founda- tion for it would of itself deprive him of a right to an 'injunction, and if the writ had been granted would have been a good ground for dissolving it. Another serious objection to the plaintiff's application is that he has at law as full and complete a remedy as he seeks from this Court, by application to the Court in which the judgment is entered to have it set aside if it has been improperly obtained, the Judge of which would have power to stay the execution in the meantime, and this, in my opinion, was the proper course for him to have adopted. Courts of equity may be resorted to and judgments at law impeached where they have been obtained by fraud, but they have never set aside such judgments for irregularity, and it is not the practice to declare the judgment of a Court of competent jurisdiction void and set it aside. What they do is to restrain the party by injunction from enforcing it on a proper case being made for their interference ; and, in all cases, before a court of equity will restrain proceedings at law, the party seeking its aid must shew that his own conduct 344 BLIGH v. KENNY et al. has been fair and equitable, and he cannot expect to obtain it if he has by his own conduct brought about the state of things of which he complains, for the Court will not allow itself to be made an instrument of injustice. There is still another objection to the plaintiff's succeeding in his application ; that the writ contains no prayer for an injunction, and it should be specifically prayed for unless in some very exceptional cases, and the plaintiff is not allowed to move for the writ under the prayer for general relief. See Kerr on Injunctions, 607. The rule nisi for an injunction must for the reasons I have given be discharged. BLIGH v. KENNY et al. Plaintiff, as official assignee of M., took proceedings to recover back money paid to defendants in fraud of creditors. Subsequently the creditors' assignee, on being appointed, obtained a rule nisi calling on defendants to shew cause why he should not be allowed to file a supplemental bill and become plaintiff. Held, that the plaintiff was entitled to file a supplemental bill. Ritchie, E. J., (June 23rd, 1879,) delivered the judgment of the Court : — This suit was instituted by Harris Bligh, official assignee under the Insolvent Act of 1875, by authority from the Judge of the County Court to take proceedings for the protection of the estate of Edward Morrison, an insolvent, and to commence the suit with the view of preventing the claim against the defendants being barred by the Statute of Limitations. Subsequently, Francis G. Parker, having been appointed assignee of the estate, obtained a rule nisi calling on the defendants to shew cause why he should not be allowed to file a supplemental bill and become plaintiff. On the part of the defendants the motion to make the rule absolute is resisted on the ground that the official assignee was not authorized to bring such a suit, and the Judge of the County Court had no power to make the order under which it was instituted, and a distinction was attempted to be shewn EQUITY. 345 between such a suit as this, which the insolvent himself could not have brought, and a suit for the recovery of a debt due to the insolvent, and it was contended that the 16th section of the act, under which this suit was brought, applied only to the latter class of cases, and that such a suit as this could only be brought under the 39th section. I see no ground for any such distinction. If the Judge of the County Court has power to authorize the official assignee to institute a suit against a debtor of the insolvent whose debt was on the eve of being barred by the Statute of Limitations. I see no reason why he had not the same power to authorize a suit to recover back money alleged to have been paid in fraud of creditors. It was urged that by the terms of the 39th section the right to do so was vested exclusively in the creditors' assignee, but by that section no distinction is made between such a suit and one for the recovery of a debt due to the insolvent, the right to sue for which is also vested exclusively in the creditors' assignee. The 16th section vested in the official assignee all the rights and interest which the insolvent had in and to any property, to hold the same for the benefit of the insolvent and his creditors, subject to the order of the Court or Judge, who may upon such order, and before any meeting of the creditors, institute any conservatory process or any proceedings that may be necessary for the protection of the estate. I cannot think that the Judge was wrong in considering this suit a proceeding necessary for the protection of the estate and making the order he did. There is an apparent repugnance in the authority given by that section to the official assignee to bring the suit and the terms of the 39th section, which declares that the right to institute such a suit shall be exclusively vested in the creditors' assignee ; but in construing a statute the language of every part must be construed as far as possible so as to be consistent with every other part and to give effect to all. This can be done by assuming what I think was the intention of the Legislature, that on the appointment of the creditors' assignee he should have the exclusive right to bring the suit referred to in the latter section, which, as regards the insolvent estate, 10 m 346 Mckenzie v. ^etna insurance co. would come into operation on his appointment, leaving the former section in full operation between the insolvency and his appointment. Though this question was fully argued and my decision on it invited, the only judgment now is that the rule nisi for leave to file a supplemental bill be made absolute, leaving open the question as to the effect that the bringing of the suit by the official assignee should have as regards the Statute of Limitations. I wish this to be understood, so that the defendants, if dissatisfied with the decision of this Court on this point, may not be deprived of an appeal, which would be the case where the decision involved a mere question of practice. Mckenzie v . ^etna insurance company. Plaintiff mortgaged certain property to C. for $434.50, and covenanted in the mortgage to keep it insured for $500 in the name and for the benefit of the mortgagee. Subsequently, plaintiff effected insurance to the amount of §570 on his own account, without reference to the mortgagee, 8180 of which was on the personal property, not covered by the mortgage. After loss by fire the mortgagee, finding that the insurance was not in his name, demanded an assignment of the policy, offering to secure to plaintiff the amount due him, and upon his refusal, claimed the amount from the company. Defendants paid the $180 and, upon action brought for the balance, an interpleader order was made. Held, that the insurance enured to the benefit of the mortgagee, and that he was entitled to interplead, although the claim of the mortgagee was an equitable claim, and the Company was under a contractual obligation to the plaintiff, and although the claim of the mortgagee was smaller than the amount insured. Ritchie, E. J., (August ISth, 1879,) delivered the judg- ment of the Court : — This action was brought at common law to recover the amount due on a policy of insurance against fire made by the defendant company in favor of the plaintiff. The company admit their liability for the loss under the policy, but in consequence of a claim made by James Crowdis, who asserts that he is the party really entitled to recover the amount due on the policy, an order was made calling upon Crowdis to shew cause why he should not appear and state the nature and particulars of his claim, and maintain or relinquish it, in accordance with which ordei' he did appear and set forth the EQUITY. 347 particulars of his claim, and as it involved questions of equitable jurisdiction, the case was transferred to this Court. The facts as they now appear are as follows : — McKenzie, the plaintiff, was the owner of a lot of land on which was the dwelling house covered by the policy, which, on the 13th ISoveniber, 1876, he mortgaged to Crowdis for $434.50, and in the mortgage he covenanted that he would insure and keep insured the buildings then erected or thereafter to be erected on the mortgaged lot against loss or damage by fire in one or more of the fire insurance offices in Halifax for the sum of $500, at the option, by the direction, in the name of, and for the benefit of Crowdis, his executors, &c, and would from time to time and at all times thereafter deliver the policy or policies of insurance, and all receipts for premiums, and all renewal receipts to him. Subsequently the plaintiff effected insurance to the amount of $570, but on his own account, and not in the name of or for the benefit of Crowdis, there being no reference to him in the policy. While this insurance was in force the dwelling house on the mortgaged premises was destroyed by fire. Shortly after the loss had occurred, finding that the insurance had not been effected in his name, as he had supposed was the case, Crowdis demanded an assignment of the policy, offering to secure plaintiff the balance due on it after deducting his claim. The plaintiff refused and said that he was not aware that the building was insured, whereupon Crowdis gave notice of his claim to the defendant company. The policy taken by the plaintiff covered insurance on furniture to the amount of $180, but, there being no dispute as to that, it was paid to the plaintiff before the action was commenced against the company. What is now in controversy relates solely to the insurance on the building. The plaintiff's counsel contests the right of Crowdis to interplead. While he admits that he may have an action against the plaintiff for breach of his covenant, he contends he has no right to interfere with him in his action against the com- pany on the policy and that no interpleader should be allowed where one claim, as that of the plaintiff against the company, is legal, and the other, as that of Crowdis, is equitable ; and 348 McKENZIE v. MTNA INSURANCE CO. that the defendant company, having entered into an agreement with the plaintiff and thereby incurred personal responsibility to him, have no right to ask for an interpleader. The further objection was raised that the insurance' effected was for a larger amount than the covenant stipulated and covered other property. Cases are to be found to support the position that to entitle the party to an interpleader the claims should be legal as distinguished from equitable, and that the applicant should not be under a special obligation to either claimant; but these rules which once prevailed have been relaxed by later decisions. In Rusden v. Pope, L. R., 3 Exch., 269, which was an action brought by the plaintiff, a mortgagee of a vessel, for freight under the charter-party, which was claimed by the creditors' assignee of the mortgagors, it was contended that the plaintiff could not have maintained an action against the charterers, the charter-party being a personal contract not passing to the assignees of the vessel, and the question being one at common law the plaintiff could not recover. Channel, B. : "I cannot agree that the only question we can determine is whether the plaintiff is entitled to maintain this action. The charterer, claiming no right in the freight, had a clear right to interplead in equity, and it would be a narrow view of the interpleader acts to hold that it was not intended to confer upon the Court a jurisdiction to determine equitable rights." Kelly, C.B., and Martin, B., concurred, Bramwell, B., dissenting. In Duncan v. Cashin, L. R., 10 C. P., 558, Brett, J., said: " It was formerly supposed that the Courts of law in dealing with questions arising under the Interpleader Act could not take notice of equitable claims, and there is the strong authority of Bramwell, B., that it is so, but the rest of the Court thought otherwise." So in Engelback v. Nixon, L. R., 10 C. P., p. 654, the Court held in the case of an interpleader that it was now settled that a Court of law would recognize equitable claims. These are decisions at common law and courts of equity recognize the same doctrine in the case of bills of interpleader. In Desborough v. Harris, 5 D. M. & G., 455, the Lord Chancellor said : " The foundation of a right to file a bill of interpleader is that there is a conflict between EQUITY. 349 two or more persons claiming the same debt or obligation. Where such a state of things exists, and where that double claim has not been occasioned by the conduct of the person who is liable to discharge the debt or obligation, he may obtain the assistance of this Court, and, upon bringing into Court the amount of debt in dispute, the Court will relieve him and put the conflicting claimants to litigate their rights between one another. I guard myself thus in saying that where the liability is not occasioned by the act of the person liable, for otherwise there its no interpleader." In Hamilton v. Marks, 5 De. G. & Sm., 638, the same view was taken, and that case meets the objection taken that the sum in the hands of the defendant company exceeded the amount elaimed by Crowdis. There the claim of one of the contending parties was legal and the other merely equitable, and limited to an amount that did not exhaust the whole fund. The objections were taken and overruled, the Vice-Chancellor saying that it was as clear a case of interpleader as he had ever seen. That the rule which was once acted upon that the applicant for an interpleader should not be under a special obligation to either party in respect of the subject in contro- versy does not now prevail is evident from the later decisions. On the part of the plaintiff in Tanner v. The European Bank, L. R., 1 Ex., 261, it was urged that the defendants were under special contractual obligation to him who declared upon that contract, and that therefore an interpleader order could not be made, and it was impossible that the rights involved in the contract between the plaintiff and defendants could be settled in a trial with another person who was no party to the contract. But an interpleader order having been made by Bramwell, B., it was confirmed by the Court. In Attenbor- ough v. The London and St. Katherine's Dock Company, 3 C. P. D., 450, on appeal one of the points taken was that the defendants had entered into relations with the plaintiffs and were not entitled to an interpleader. The Court held other- wise, and Baggally, L. J., referring to Grawshay v. Thornton, 2 My. & Or , 1, said : " Now it is quite true that that case was decided in the year 1831, when the Interpleader Act was passed, and that Lord Cottenham's judgment proceeded upon 350 McKENZIE v. iETNA INSURANCE CO. the principle that where the person seeking to interplead had entered into any special obligation with either of the parties claiming he was not entitled to be relieved in equity. The same principle was to some extent adopted in the courts of common law, and as to this I may refer to James v. Pritchard, 7 M. & W., 216, which was mentioned in Meynell v. Angell, decided by the present Lord Blackburn. But these decisions were prior to the passing of the Common Law Procedure Act, 1860, section 12, and I have strong reason to believe that this clause was enacted in order to prevent the further applica- tion of the principle laid down in Grawshay v. Thornton." And Brett, J. said : " As to the authorities, in my opinion Best v. Hayes, 1 H. & C, 718, and Tanner v. European Bank are direct authorities against the authorities put forward on behalf of the plaintiffs. In the latter there was most certainly a contract between the plaintiffs and defendants, and in the former, if the claimant had not intervened it would have been difficult for the defendant to shew that he was not liable upon a contract made with him as auctioneer. But in each case the question as to the property in dispute was directed to be tried between the rival claimants ; and I cannot agree that in order to entitle a defendant to interplead the remedy of the plaintiff against the claimant must be co-extensive with the remedy against him." If ever there was a case where the granting of leave to interplead was just and reasonable, and calculated to do justice and settle the matters in controversy, and where the opposition, raised as it is by the plaintiff, is unjust and unreasonable, it is this. The defendant company is content to stand between the two contending parties as a stakeholder claiming no interest in the amount in controversy, ready to pay to which- ever of the parties the Court shall decide is entitled to it. The claim of the plaintiff on the defendant company is a strictly legal one ; but for him to insist on recovering the amount and retaining it for his own use would be most inequitable. He undertook to insure for the benefit of Crowdis, and, in violation of his agreement, insured for his own benefit ; under these circumstances Crowdis may be considered as having an equitable lien on the amount insured. Cases in equity are numerous where a party undertaking to do an act EQUITY. 351 for another does it for himself and it enures for the benefit of the former, a« where one enters into an agreement to buy a property for another and buys it for himself. So where a party has expressly agreed to purchase and settle property, and buys but neglects to make a settlement, he will be taken to have bought it in performance of his agreement. Equity will assume that a party intended to do what he covenanted to do, and a contract to make a mortgage may create a lien on an estate. If in this case there had been simply a covenant in the mortgage that the plaintiff should insure, with no reference, to its being for the benefit of Crowdis, he would have had no right to intei-fere with the receipt of the money by the plaintiff. That was the case in Lees v. Whitely, L. R., 2 Eq., 143, cited by Mr. Tupper at the argument. Another case cited on the part of the plaintiff, that of Livingstone v. The Western Insurance Company, reported in 14 Grant's Ch. R., 461 and 16 Grant's Ch. R., 9, has, in my opinion, no bearing on the question. There the loss would have been payable to the mortgagee but for the violation of a condition by the mortgagor whereby the policy was avoided. So in Carpenter v. Providence Washington Insurance Company, 16 Peters, 506, the party making the claim on the insurers was not only a stranger unreferred to in the policy, but there was no agreement between the mortgagor and mortgagee that the insurance should be exclusively for the mortgagee, and great stress was laid on that fact. Here the plaintiff, having covenanted to insure for Crowdis's benefit, and having wrong- fully insured for his own, it enures for the benefit of Crowdis, and the plaintiff's attempt to claim the money is fraudulent, the former having a claim on it which a court of equity would enforce. Assuming equitable claims to be within the purview of the Interpleader Act, this case comes within the very words of that act, which provide that if the defendant shews that he claims no interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, &c, the interpleader order may be made. I can see no reason why the rule nisi for an interpleader in this case should not be made absolute. 352 DIOCESAN SYNOD N. S. v. O'BRIEN et al. DIOCESAN SYNOD NOVA SCOTIA v. O'BRIEN et al. Under an order of foreclosure and sale, plaintiffs advertized for sale " all the estate, right, title, interest and equity of redemption " of the defendants. At the sale one M. became the purchaser, and paid down the ten per cent, deposit required under the terms of the sale, but refused to complete the purchase, on the ground that a good title in fee simple could not be given. An order for a resale was made and the property was sold for an amount less than the amount of the mortgage. Plaintiffs applied to the Court for an order for the payment to them of the deposit on the first sale. M. showed cause, contending that he was entitled to the return of the deposit as a good title could not be given. Held, that, as the plaintiffs had only professed to sell the title of the defend- ants, such as it was, and had not been guilty of fraud or misrepresentation, and the purchaser would, under his purchase, have acquired all that he bid for, he was not entitled to a return of the deposit. Ritchie, E. J., (December 8th, 1879,) delivered the judg- ment of the Court: — Under the order of foreclosure and sale in this cause, all the estate, right, title, interest and equity of redemption of the defendants, John A. O'Brien, Bridget O'Brien and Catherine Hay den, and of all persons claiming by, through or under them, of, in or to the lot of land described in the mortgage sought to be foreclosed, was advertized by the Sheriff to be sold ; the terms of sale expressed in the advertizement being ten per cent, deposit at the time of sale, remainder on delivery of the daed. On the day specified the sale took place, and Samuel A. Marshall, being the highest bidder, became the purchaser for the sum of $3,025, who thereupon paid a deposit of $300 and signed an agreement in these words : " I hereby consent to become the purchaser of the property described in the annexed handbill for the sum of $3,025. Samuel A. Marshall, for Margaret Jane Marshall, Mary Marshall, Isabel Marshall." The Sheriff subsequently tendered to him a deed and demanded the balance of the purchase money, but he would neither accept the deed nor pay the money, and there- upon an application was made on behalf of the plaintiffs for an order on Marshall to compel him to complete the purchase by payment of the balance of the purchase money. This was resisted on the ground that the purchaser would not acquire a perfect title in fee simple to the land. For the reason thus EQUITY. 353 assigned the Court declined to make the order, but at the plaintiff's instance an order was made for a re-sale, which subse- quently took place, when James W. Hutt became the purchaser for $2,005, being less than the amount due on the mortgages foreclosed. The plaintiffs then applied to the Court for an order on the Sheriff requiring him to pay the $300 deposit on the first sale to him, and, an order nisi to that effect having been granted, cause was shewn against the rule on the part of Marshall, his counsel contending that, as a perfect title could not be given to him, the deposit should be returned to him. Where an agreement is made for the sale of land, the purchaser has a right to require a good title from the vendors, but, while this is the case in general, there is nothing to prevent the vendor offering for sale and selling his right and title to the land, whatever they may be, and, if a purchaser agrees to make such a purchase he will be bound to fulfil his agreement and cannot be relieved on the ground that he will not acquire a perfect title to the land, provided he has not been misled by fraud or misrepresentation on the part of the vendor ; but it must clearly appear that the right and title of the vendor to the land and no more was to be disposed of. As there is no pretence that anything was done to mislead the purchaser in this case, we have only to see what the bargain was. All that was advertized was the estate and interest of the defendants and all persons claiming under them. This alone was offered for sale by the Sheriff and bid for by Marshall. He may have supposed that their estate was an absolute fee simple, but there was nothing done to lead him to that conclusion. There is nothing to prevent a vendor from restricting the pur- chaser's right by the conditions of sale, and the purchaser may be bound by them. Leake on Contracts, 829 ; Sugden, V. & P., 337. In Freme et al. v. Wright, 4 Madd., 365, the estate was purchased by the defendant for £500, who refused to complete the sale for want of good title, and brought an action for the deposit. The Court restrained him from proceeding. The Vice-Chancellor said : " Every person who offers an estate for sale without qualification asserts in fact that it is his to sell, and consequently that he has a good title ; but a vendor, if he thinks 354 DIOCESAN SYNOD N. S. v. O'BRIEN et al. fit may stipulate for the sale of an estate with such title only as he happens to have, and the question is whether these particu- lars of sale import that the vendors asserted a good title to the estate or meant only to sell such title as the bankrupt had." And in suits for specific performance the Court will not direct an enquiry into title where the vendor only contracts to sell such interest as he has. Fry on Specific Performance, sections 830 and 571. In Tweed v. Mills, L. R., 1 C. P., 39, where a tenant from year to year agreed to let all his right, title and interest in the premises for £1,000, Byles, J., said : " It seems now to be well established that on the sale of a lease there is an implied contract on the part of the vendor that he will shew a good title, but that may be dispensed with, and the first words of this agreement shew that that was not the intention here. The defendant agreed to let to the plaintiff all his right, title and interest in the premises, such as they were ; the rule therefore does not apply to this case." Clare v. Lamb, L. R., 10 C. P., 334, is to the same effect ; so is Hume v. Pococlc, L. R., 1 Ch., 379, affirming the decree of the Vice-Chancellor, and that was a suit for specific performance of the contract. Ex parte Barrel, L. R., 10 Ch., 512, and Thomas v. Brown, 1 Q. B. Div., 714, shew that where a contract for sale goes off by default of the purchaser the vendor is entitled to the deposit. This, it will be remembered, is not a case where the purchaser would acquire no estate or interest in the land. The defendants and those claiming under them had an interest in it, and he would acquire a beneficial present interest which may result in an absolute fee simple. Inasmuch as the terms of sale are clear and unambiguous, and the purchaser by paying the balance of the purchase money could have got all that he bid for and agreed to buy, he cannot recover back the deposit, the vendor being willing to convey to him all that was offered for sale. EQUITY. 355 THE WINDSOR AND ANNAPOLIS RAILWAY CO. v. THE WESTERN COUNTIES RAILWAY CO. Defendants demurred to plaintiffs' writ, on the ground, among others, that the Attorney-General had not been made a party. The demurrer was overruled by the Judge in Equity, whose decision was sustained by the Court in banco on appeal, from which decision an appeal was taken to the Supreme Court of Canada, where the appeal was dismissed on the ground that the Court had no jurisdiction as the decision was not final. Plaintiffs then sought to amend the writ by adding the Attorney-General, to which the defendants objected, on the ground of delay. The defendants were in possession of the property, taken from the plaintiffs, in respect of which the suit was brought, and were enjoying the whole profits of it, so that the delay was prejudicial to the plaintiffs rather than to them. Held, that the plaintiffs were entitled to the amendment applied for as they had not been remiss in the prosecution of the cause. Ritchie, E. J., (December 8th, 1879,) delivered the judg- ment of the Court : — ■ Two rules nisi have been taken in this case, one at the instance of the defendants either to have the cause set down for a hearing, or, in the alternative, that the plaintiffs speed the cause ; the other at the instance of the plaintiffs that they should have leave to add the Attorney-General of Canada as a defendant and that the writ and pleadings should be amended accordingly. On motion to make these rules absolute they were argued together. The defendants demurred to the plaintiffs' writ on several grounds, one of which was that the Attorney-General had not been made a party. The demurrer was overruled by the Judge in Equity, and on appeal to the whole Court his judgment was affirmed. An appeal from this latter judgment was taken to the Supreme Court of Canada, but that Court, considering the judgment on the demurrer not a final judgment, held that the case did not come within its jurisdiction. As no stay of proceedings was ordered, the evidence was taken pending the demurrer and completed about the month of March last, and before the Supreme Court of Canada had given any decision. The defendants object to the amendment asked for on the ground of delay, which they say will be prejudicial to them. This may possibly be the case to some extent. It is not likely that the amendment will involve the 356 W. & A. RAILWAY CO. v. W. C. RAILWAY CO. taking any further evidence, and if it should it could be taken during the vacation just commencing, so that the cause could be heard soon after its termination, in which case there would be no delay, and I do not think the plaintiffs up to this time have been remiss in prosecuting their cause. It would have been most injudicious on their part to have brought it on to a hearing until the ultimate decision on the demurrer, and that has but lately taken place ; and it is to be borne in mind that the defendants are in possession of the railway, the subject of the suit, and are enjoying the whole profits of it, the possession of it having been forcibly taken from the plaintiffs, to whom the delay must be more prejudicial than to the defendants. The only question is whether by the practice of the Court such an amendment can be made in this stage of the case. If the Supreme Court of Canada had entertained the appeal, the plaintiffs' difficulty on this point would have been removed. If it had affirmed the judgment of the Courts of this province the question would have been set at rest, and the joining of the Attorney- General held not to be necessary by the Court of ultimate resort. If, on the other hand, that judgment had been reversed and the demurrer upheld, the plaintiffs would, as a matter of course, have had a right to make the amendment now sought. The present application is made under the idea that the Supreme Court may come to that conclusion, and I see no good reason for refusing it. If at the hearing of the cause the Court should be of opinion that the Attorney-General was a necessary party, it could and I feel sure would direct his being called in, and would permit the case to stand over till it was done, and not dismiss the bill in conse- quence of his not having been made a party in the first instance, which would occasion greater delay than if the amendment, were made now. If the Court should not at the hearing interfere and order the calling in of the Attorney-General before being in a position to make a decree, and the defendants should, notwithstanding the judgment on the demurrer on the point, ultimately take the objection on an appeal to the Supreme Court of Canada, if the case should again be before that tribunal, and there the Atty. General be deemed a neces- sary party, it would be most unreasonable that the plaintiffs EQUITY. 357 should be shut out of an amendment which they would have been entitled to but for the judgment of our Supreme Court in his favor on the demurrer. If the defendants had under- taken not again to raise the objection there would have been more reason in their opposition. Great latitude is allowed to a plaintiff in making amend- ments, and this is especially the case with respect to the adding of parties. The Court will, on grounds shewn for it, allow parties to be added at any time before hearing and at the hearing, and sometimes even after a decree and before its enrolment. See Harrison's Common Law Practice, 39. In Goodwin v. Goodwin, 3 Atk., 370, the objection was taken that the plaintiff had amended his bill after publication and cause set down. The Lord Chancellor held that after publi- cation and cause set down he could amend his bill by adding parties. Brattle v. Waterman, 4 Sim., 125; Forbes v. Stevens, 3 N. R., 386 ; Bryen v. Wetsall, Kay Appendix, 43, shew that it is all but a matter of course to make such an amendment as this now asked for, and in 2 Atk., 15 Anon., Lord Hardwicke said a bill is never dismissed for want of parties, but stands over on paying the costs of the day. A decree of Sir Joseph Jektll in a cause at the Rolls dismissing a bill for want of parties was reversed afterwards for that reason, and a decree of the same nature in the Court of Exchequer was reversed likewise in the House of Lords. With reference to the delay complained of in making this application, I may remark that it could not have been made till the appeal to the Supreme Court of Canada was disposed of. In Ainslie v. Sims, 17 Beav., 174, the plaintiff, pending an appeal, without stating the fact, applied for the common order to amend. The Master of the Rolls said : " Here a bill is filed to which the defendant demurs. Until the demurrer is heard the defendant may obtain an order, of course, to amend. The Court at the hearing of the demurrer either allows it with leave to amend or overrules it, but in either case the parties have a right to appeal. The plaintiff had distinct notice of the appeal being set down before he obtained the common order to amend ; pending the appeal he could not get it." The plaintiffs' application to add the Attorney- 358 GREGORY v. CANADA IMPROVEMENT CO. ET al. General of Canada as a pai ty to the suit should be granted on payment of costs to the defendants if any are occasioned by the amendment. This decision disposes of the rule nisi obtained by the defendants to speed the cause. GREGORY v. CANADA IMPROVEMENT CO. et al. Plaintiff claimed to be entitled to $80,000 bonds on the Eastern Extension Railway, to be secured upon the Pictou Branch road in the event of its being trans- ferred to the defendant Company as a subvention in aid of the construction of East- ern Extension. The defendants were applying for legislation which should provide that in the event of the road not being operated to the satisfaction of the Governor- in-Council of the Province, it should become the property of the Province free from incumbrance. Plaintiff, contending that this would invalidate his bonds and was a breach of a compromise made with him, sought to restrain the defendants from applying for such legislation. Held, that, as the purpose of the concession was to secure the construction and continued operation of the road, and the proposed legislation contained a proviso that the trustees of the bondholders should have notice before any forfeiture of the road, that was all that they had a right to expect, and the plaintiff was not entitled to the injunction prayed for. Ritchie, E. J., (March 15th, 1879,) delivered the judg- ment of the Court : — This suit is brought against the Canada Improvement Company, the Halifax and Cape Breton Railway and Coal Company, Harry Abbott, the Honorable J. J. C. Abbott, Sir- Hugh Allan, the Honorable John Hamilton, and the Honorable Samuel Creelman, Commissioner of Public Works and Mines of Nova Scotia, and the plaintiff prays that the defendants may be restrained from entering into a contract or agreement to carry out a preliminary agreement made between the two companies and the Governments of Nova Scotia and the Dominion of Canada in fraud of a settlement and compromise made between the companies and the plaintiff, whereby it was provided that the Pictou Branch' Railway was to be held by the Dominion Government until the railway extension to the Strait of Canso and the steam ferry across the Strait are finished to the satisfaction of the Nova Scotia Government, when the said branch railway was to be transferred to the EQUITY. 359 Halifax and Cape Breton Railway and Coal Company, upon condition that the branch railway and railway extension and ferry shall be operated to the satisfaction of the Lieutenant- Governor-and-Council of Nova Scotia, and in the event of failure so to operate, then the same should become the property of the Nova Scotia Government, free from encumbiances ; which preliminary agreement, it was stipulated, should thereafter be embodied in a formal contract, and that the said companies should apply for the necessary legislation to enable the same to be carried into effect ; and the plaintiff prayed that the defendants should be restrained from carrying out or acting upon any agreement theretofore made in violation of the said settlement or compromise, or from applying for, encouraging or adopting any legislation by which the value of the bonds which, by that settlement or compromise, were to be delivered to the plaintiff, might be depreciated, or the property on which the same was to be secured might in any event cease to be the property of the said Railway and Coal Company, free from liability on account of such bonds. The Attorney-General, who appeared on behalf of the Commissioner of Public Works and Mines of Nova Scotia, produced an affidavit of Mr. Creelman, stating that the formal contract embodying the terms of the preliminary agreement had been executed by him before he was served with the writ in this cause or the notice of motion for an injunction, and .before he had any knowledge of the application for an injunction; and Mr. Graham, who appeared for the Halifax and Cape Breton Railway and Coal Company and Harry Abbott, produced the affidavit of the latter, in which, among other things, he alleges that the said agreement had been executed by him before he had any notice of the plaintiff's claim for an injunction, and, as he had been informed and verily believed, was executed by the said company, and by Sir Hugh Allan and the Honorable J. J. C. Abbott before the service of the writ on them, or notice of the motion for injunction. Under these circumstances, that part of the plaintiff's prayer which asks the Court to restrain the defendants from executing this agreement is necessarily unavailing, and the plaintiff is confined to that part which 360 GREGORY v. CANADA IMPROVEMENT CO. et al. asks that the defendants should be enjoined from applying for or adopting any legislation by which the value of the bonds which he claims he is entitled to under the settlement or compromise, as set out in his writ, may be depreciated, or the property on which the same is secured may. in any event, cease to be the property of the said railway company, free from liability on account of such bonds. At the time of the compromise or settlement set out in the plaintiff's writ it was known to all the parties to it that, as the law then stood, it did not permit the issue of the $80,000 bonds and the delivery of them to the plaintiff, nor was there any legislation then existing by which mortgage bonds could be made to attach to the Pictou Branch Railway. It was therefore provided that the Canada Improvement Company would deliver to the plaintiff, as soon as the same could he legally issued, to which end the two companies agreed to use every diligence, $80,000 in good, sufficient, legal and available first mortgage bonds of the Halifax and Cape Breton Railway and Coal Company, and which should, so far as the said companies could make them do so, attach and be a first lien upon the Truro and Pictou Branch Railway, which was to be handed over by the Government of the Dominion to the Halifax and Cape Breton Railway and Coal Company, as a subsidy towards the construction of the Eastern Railway Extension, provided always that such branch railway should be so handed over, and also upon the said Eastern Railway Extension and the said company, and the property, rights and privileges set forth in section 32 of the Act incorporating the company ; that the bonds should be free from unusual clauses and conditions by which the holders or trustees might be precluded from selling the property upon which they were to constitute a lien, or foreclosing the mortgage, or otherwise realizing the bonds in case of non-payment ; and it was further provided that the Canada Improvement Company would deliver to the plaintiff the said bonds, and that the Halifax and Cape Breton Railway and Coal Company would, if it should prove necessary to do so, apply for and endeavour to procure at the earliest opportunity such legislation as would remedy any alleged defects, if any existed, in their organization. EQUITY. 361 All parties to the arrangement seem carefully to have guarded themselves from undertaking to perform what it was not in their power to do, and the undertakings of the companies to give a lien on the Pictou Branch were strictly conditional on its delivery over by the Dominion Government and the terms on which it should be delivered. The plaintiff has no grounds for complaining that the Pictou Branch is to be held as the property of the Dominion Government until the Eastern Extension Railway to the Strait and the steam ferry are finished to the satisfaction of the Nova Scotia Government. It could not be reasonably expected that it would be handed over to the Halifax and Cape Breton Railway and Coal Company until then. What was mainly urged at the argument was that the terms were unjust to the bond holders and the bonds rendered less valuable to the plaintiff by the provision that a forfeiture was to be incurred if the railway and ferry were not duly operated. The object of the two governments was not only to have the railway to the Strait of Canso built, but to have it and the ferry put and kept in operation, and it is for this that they agreed to contribute to its construction out of the public funds. This much all parties concerned were aware of, and nothing seems more reasonable in the interest of the public than that, if the Halifax and Cape Breton Railway Company should fail to perform their contract by operating the roads, they should revert to the government, in order that they might be kept in operation. But this provision, it was urged, might be very prejudicial to the interest of the plaintiff as a bond holder, as he might lose his security by the non-performance of the contract by the mortgagor company, without any fault on the part of the mortgagee, and without his being able to prevent a forfeiture. But the Court has now before it the contract entered into in accordance with the preliminary agreement set out in the plaintiff's writ, and from it it appears that the absolute right of property in the Pictou Branch is to be conveyed to the company on the terms that the company is to forfeit all right to it in the event of a failure to operate the railways and ferry efficiently and continuously for a period of six months after notice, and provision is to be made for a lOn 362 ALMON et al. v. BUSCH. reference to arbitration in ease of a dispute arising as to the forfeiture. There is, however, no protection to the bond- holders, and it did occur to me that it would he unreasonable that their security should be liable to be destroyed without notice and without their being able to prevent the forfeiture and protect their interests. But even then if the Dominion Government would not consent to hand over the Pictou Branch on any other terms, I do not see what redress the plaintiff would have. 1 was glad to find, however, from the Attorney-General, (Mr. Thompson,) that the bill which had been prepared for submission to the legislature, the draft of which he had and read from, contained a clause requiring that notice of intended forfeiture should be given to the trustees for the bond-holders, who might save the forfeiture by their undertaking to perform the duty of keeping the roads and the ferry in operation. This is all that in my opinion they have a right to expect. The road was built and the subvention granted on the stipulation that it should be kept in operation by the company, and any persons claiming through the company, by mortgage or otherwise, could only take subject to that stipulation. The plaintiff, therefore, is not, in my opinion, entitled to the injunction he has prayed for. ALMON et al. v. BUSCH. Defendant, a, member of the Nova Scotia Building Society, obtained an advance, and gave his mortgage and bond ; after which he sold his equity of redemption, and a suit was brought to foreclose the mortgage, without making him a party or giving him notice. The land was bought in by the Society for a sum less than the costs in the foreclosure suit. An action was then brought against the defendant on his bond. An equitable plea was pleaded, under which defendant gave evidence that the Secretary of the Society, upon defendant asking for a release of his bond, replied that it would be a good deal of expense add nothing would ever come against him, and no application was therafter made to him for dues or fines, the notices being sent to the purchaser. Held, that the Secretary had no power to make the arrangement alleged, to which the Directors had not assented, and that the defendant, being a member of the Society, was bound to know the limits of the Secretary's authority ; that, although the rules of the Society restricted them to the advancing of money upon real estate security, there was nothing to prevent them from taking the defendant's EQUITY. 363 bond in addition, even if they could not take the bond of a stranger ; that the fact of a sale under foreclosure did not prevent the Society from sueing on the bond, so long as they held the land ; that the decree against the defendant could not include the costs of the foreclosure suit, to which he was not a party, but that he was not entitled to credit for the proceeds of the foreclosure sale, as they did not amount to the costs in that suit ; and that the trustees were the proper plaintiffs. Ritchie, E. J., (October, 1879,) delivered the judgment of the Court : — The plaintiffs seek to recover on a bond given to the Trustees of the Society, for the time being, by the defendant, on his becoming a member and obtaining an advance from the society of $212.64, for which he also gave a mortgage on certain real estate. Equitable pleas having been put in, the case was referred to this Court. The defendant contends that the trustees were not authorized to take such a bond under the rules of the society, or the act under which it operates, but were restricted to taking security on real estate alone for advances. And for defence on equitable grounds, he alleges that, with the consent of the society, he conveyed the mortgaged property to one Mary Lahy, subject to the mortgage, and she was adopted as its debtor, in place of the defendant, after which this arrange- ment was acted upon, and the society applying to her and receiving from her the dues, fines, &c, which became due in respect of the advance, released the defendant from his bond, and agreed to give the same up to him, and not to look to him further to perform its conditions, and no application was afterwards made to him, and the plaintiffs subsequently instituted a suit against Mary Lahy, to foreclose the mortgage, without notice to him, or making him a party. From the evidence, which was taken before the case was transferred to this Court, it appears that the defendant conveyed to Mary Lahy his equity of redemption in the mortgaged premises about five years ago, and, if the statement of the defendant and Thomas Lahy are to be credited, Mr. Burton, the Secretary and Treasurer of the Society, was informed of it, and was told that her father would, in future, make the payments to the society ; that the defendant asked for a release and was told by Mr. Burton that it would be a good deal of expense and nothing would ever come against him; 364 ALMON et al. v. BUSCH. to -which he replied that as long as he was clear of it, and nothing would ever come against him, he would make no objection; that after this no application was made to him, and the notices, &c, for dues, &c, were sent to Lahy. Mr. Burton has no recollection of such a conversation or arrangement, though he says that after the conveyance of the land to Miss Lahy the notices were directed and sent to her, and he would not undertake to contradict the statements made by the defendant and Lahy. He does say that no formal application was made and no formal steps were taken to relieve the defendant, by which, I presume, he means that no application was made to the directors, nor any actual release obtained, which would be quite consistent with the plaintiff's statement, as is his assertion that the directors never consented to take Miss Lahy instead of the defendant ; that he did not, and had not the power of doing so, and that she never was a member of the society. Taking the whole evidence together, I infer that the defendant, from what took place, considered himself relieved from all liability to the Society, and he would be confirmed in this belief by the Society ceasing to treat him as a member and debtor by dealing with Miss Lahy, as such, until after the foreclosure and sale of the property. On the other hand, Mr. Burton must have known that he had no power to substitute Miss Lahy for the defendant, and release him from his engagements. All that he intended to convey to the defendant probably was that, the mortgage being deemed , a good security for the debt, he need not fear being called upon for any further payment, and that he might consider himself practically relieved from responsibility under his bond. But, assuming that Mr. Burton did consent to release the defendant from all liability to the Society and to take Miss Lahy as a member in his place, it would, not avail the defendant if unconfirmed by the directors, who alone had the power of doing it. The duties of Mr. Burton, as Secretary and Treasurer of the Society, are specified by the rules, and his power and authority are strictly limited. He is vested with no power to release the defendant from his responsibility, or to transfer it to another, and the defendant, as a member of the society, was bound to make himself acquainted with EQUITY. 365 its rules. If, therefore, such an arrangement as that testified to by the defendant and Lahy had been made with Mr. Burton it would be nugatory. It was contended that the society had no authority to take a bond from the defendant, as it was restricted to taking security on real estate for an advance to a member ; but I cannot see any good reason why, having given a member the amount of his share in advance, it should not he repaid, though the mortgage might turn out an ineffectual security, either from depreciation in the value of the land mortgaged or defect of title, and, if so, why he could not be asked to bind himself to make good the deficiency. The case of the Canada Permanent Building Society v. Leruis et al., 8 U. C. Com. Pleas R. 352. was cited as an authority for the contention, but upon turning to it, it will be found more opposed to than in favor of it. There the Society had taken a bond from a member and another person, to secure an advance to the former. The Court held that it could not take collateral security from, a stranger for the security of a loan upon real property. The Chief Justice, in giving his judgment, said ; " A member may, I presume, besides giving his mortgage, give his covenant also, and if his covenant, his bond, the real security being indispensable." It was also contended that, having foreclosed the mortgage and purchased in the property, the society lost its right to resort to its bond. As a general rule, a mortgagee has a right to enforce all his remedies. If he proceeds on his bond in the first instance, and thereb}' obtains only a part of his debt, he may foreclose his mortgage for what remains due. But if he forecloses first and sues on his bond for a deficiency, this equity will only allow by his giving the mortgagor a new right to redeem, which he cannot do if the mortgaged property has been sold to a stranger. In this case the property is vested in the society, and the defendant, if he wishes, can acquire a title to it again by paying the amount due on the mortgage. Under these circumstances, the foreclosure only extinguishes the mortgage debt to the extent of the value of the property, and the society is entitled to resort to its bond for the deficiency. 366 BARTON et al. v. BALDWIN. The plaintiffs,in their particulars, claim from the defendants $212.64, being $121.85, the amount due on the advance made the defendant, and $90.79, the costs of the suit against Miss Lahy on the foreclosure, giving no credit whatever for the amount for which the land was sold. This amount, it is obvious, cannot be recovered. The decree can only be for $121.87. The defendant is not chargeable with the costs of the foreclosure ; but, as the amount for which the land was purchased did not exceed the costs incurred in the foreclosure suit, the defendant is not entitled to any credit from that source. There is no ground for the objection to the plaintiffs as parties. They are the only persons who, in m}' opinion, could bring the action. The society is a quasi corporation, and the trustees for the time being are alone authorized to sue for the society. The decree will be for $121.87 and costs. BARTON et al. v. BALDWIN. Plaintiffs purchased certain real estate, subject to a mortgage held by W., as Guardian, for $5,840, and sold a portion to defendant, who was aware of the mortgage, for S7,O0O. Defendant paid SI, 400 in cash, and received a deed, with an absolute warranty and covenants for title, without reference to the mortgage. On the same day plaintiffs gave a mortgage of the whole property to K., for $3,760, of which defendant had no knowledge when hemadehis purchase, and which was recorded before plaintiffs' deed. Defendant gave plaintiffs a mortgage for the balance of the purchase money. The mortgage to W. was foreclosed, and the property sold by the Sheriff, and defendant was obliged, in order to protect himself, to become the purchaser, paying for the whole property included in the mortgage $8,850, which was applied to the payment of the amount due on the two mortgages to W. and K., and to » judgment recorded against the property. Plaintiffs then brought an action against the defendant on the covenant in his mortgage. Held, that they had no equitable right to call for payment of the purchase money until they had cleared the defendant's title ; that defendant was entitled in equity to pay off the mortgages, and had in effect done so, and to recover from the plaintiffs the amount so paid, over and above the purchase money, and that before plaintiffs could re-possess themselves of the portion not included in the conveyance to defendant, they would be obliged to pay him the difference between the amount at which he had purchased and the amount he had been obliged to pay. Q. Whether- the defendant could be compelled to convey even on the terms mentioned. EQUITY. 367 Ritchie, E. J., (October, 1879,) delivered the judgment of the Court : — The case, which is a simple one, is complicated by the pleadings, which are confused and prolix and full of needless repetitions. The plaintiffs seek to recover the sum of $3,600 on a bond and covenant in a mortgage given by the defendant. The action was originally brought on the common law side of the Court and, the defendant having put in equitable pleas, it was sent here for adjudication. From the evidence it appears that the plaintiffs became the purchasers of certain real estate in Halifax, from one James King, in the year 1873, which was then subject to a mortgage held by one Walker, Guardian of' McCara, for $5,840 and interest. On the 1st May of that year the plaintiff sold a portion of it to the defendant for $7,000. The existence of the McCara mortgage was known to the defendant. He paid $1,400, and received a deed, with an absolute warranty of title and covenants from the plaintiffs that they had a good, indefeasible title in fee simple, and a right to convey, and for quiet enjoyment, without reference to any encumbrance existing on the property. On the same day the plaintiffs gave a mortgage on the whole property, including that sold to the defendant, to King, for $3,760, which was put on record before the plaintiffs' deed. Of this mortgage the defendant had no knowledge when he made his purchase and got his deed.. This mortgage to King was transferred, a few days after it was given, to Mr. Joseph Northup. The defendant gave the plaintiffs a mortgage for the balance of the purchase money. Some time after, the plaintiff, Barton, conveyed to his co-plaintiff, McLellan, his interest in the defendant's mortgage, for the consideration of $1, and is, therefore, but a nominal plaintiff. The amount due on the McCara mortgage was not paid, and in June, 1874, a suit for the foreclosure of it was commenced, and, a decree of foreclosure and sale having been obtained, the mortgaged property was, on the 24th of October following, offered at public sale by the Sheriff of Halifax, when the defendant, in order to protect the part of the property which he had purchased, was under the necessity of 368 BARTON et al. v. BALDWIN. becoming the purchaser, for $8,850, being the highest sum offered for it at the sale, and he obtained from the Sheriff a deed of it. The amount then due on the McCara mortgage was $6,464.11. The balance in the Sheriffs hands after paying this was $2,384.88, which was by him paid to the Accountant-general of this Court. Subsequently,an application was made on behalf of the estate of Northup for the amount due on the mortgage which had been assigned to him, it being the next encumbrance on the property sold, and an order was made for the payment of the amount due, which was $2,189.88; after which an application was made by one James K. Munnis, to be paid out of the balance in the hands of the accountant-general the sum of $108.78, due on a judgment obtained by him against the plaintiff, McLellan, and recorded to bind real estate, as being the next encum- brance, and he obtained an order to that effect. The counsel for the plaintiffs contends that no effect should be given to the agreement feet out in the defendant's pleas, and referred to in the evidence, referring, as it does, to land, it being verbal and inconsistent with the terms of the deeds ; and this view I am disposed to adopt. He further contends that he is entitled to recover in this suit on the defendant's bond, and on the covenant contained in his mortgage, and that if the defendant has any remedy against the plaintiffs on the covenants and warranty in his deed, it must be sought in a cross-action, and that such an equitable defence as is attempted to be set up cannot be entertained. In this view I do not concur. The defendant, when he received his deed, and gave his bond and mortgage for the balance of the purchase money, was entitled to have the McCara mortgage released, so far as it affected the part he had purchased, and to have the mortgage the plaintiffs had wrongfully given to King removed from it, and till this was done, plaintiff had no equitable right to call on the defendant to pay the amount due on his mortgage It is a recognized rule in equity that a purchaser has a right to apply the unpaid purchase money to pay off encumbrances on the land he has purchased. Before, therefore, the plaintiff would have an equitable right to call on the defendant for payment of the purchase money he should have cleared the EQUITY. 369 defendant's title by obtaining a release of the encumbrances on the land he had sold him and of which he had warranted the title ; and if he failed to do this, the defendant was at liberty to pay the amounts due on them and take an assign- ment of them, and by so doing he would have paid the amount due on his bond and covenant and could claim on the plaintiffs for the amount he thus paid beyond what he owed them. Now this, in fact, is what the defendant has done- The property was sold on a foreclosure suit against the plaintiffs. They would not protect the title of the defendant or their own and the defendant was compelled to purchase, and his money has paid the encumbrances on the plaintiffs' property, which they were bound themselves to pay. Mr. Bligh, to support his position, was forced to contend that if the defendant had been dispossessed of the property he purchased, as he would have been if he had not purchased at the Sheriff's sale, he could still be compelled to pay the plaintiffs' mortgage. Surely Mr. Bligh must have forgotten that he was in a Court of Equity, where there is no necessity for the defendant to resort to a cross-action. The whole matter in controversy and all the parties interested in it are before the Court, which acts, as far as possible, with a view of avoiding circuity and multiplicity of suits ; and the statute relating to procedure in equity provides that in the final decision of cases the Court shall give judgment according as the very right of the cause and matter in law shall appear, so as to afford to the parties a complete remedy upon the principles which prevail in equity. The defendant has paid, in the first instance, in cash, $1,400, and, subsequently, $424, and to the Sheriff $8,850, in all $10 675, and, having acquired a legal title to the whole lot, if the plaintiffs wish to re-possess themselves of the part not conveyed by them to the defendant, they cannot reasonably expect to do so without paying him the difference between his purchase, $7,000, and the amount he has paid, $10,674, that is, $3,675. Whether he could be compelled to accept that sum and convey the lot to the plaintiffs it is not necessary to decide, as he has offered before suit, and is still willing, to take a less sum, and make the conveyance to them. The 370 CAFFERY v. CAMERON et al. plaintiffs' charge against the defendant of fraud is unwarranted by anything in the evidence and should not have been made. While the plaintiff's' claim is, in my opinion, most unreasonable and unjust, the effect of it, if allowed, would be to make the defendant pay $5,600 in addition to what he has already paid, $10,675, for the property; that is upwards of $4,000 more than the whole property originally cost the plaintiffs. Coming into a Court of Equity, they should have shewn a disposition to do equity, and they have shewn no disposition, and have failed in establishing any case entitling them to a decree in their favor. The defendant will be entitled to a decree with costs. CAFFERY v. CAMERON et al. The defendant, Cameron, agreed to sell to plaintiff a farm in Charlotteburg, Ontario, for $45,000, subject to a mortgage for $14,000. The plaintiff, in considera- tion, was to assume the $14,000 mortgage, and convey certain gold mining areas and other property to defendant, at the price of $20,000, and for the balance of $11,000 he was to convey to defendant his dwelling house at Truro. The defendant obtained a transfer of the areas under circumstances as to which the affidavits were contradictory ; but it was uncontradicted that the title to the real estate which he was to convey to plaintiff was encumbered to the extent of upwards of $15,000 more than had been represented. Plaintiff having obtained an injunction to restrain defendant from working the areas, Held, that, assuming the statements of the defendant to be true as to the way n which he obtained the transfer, there was a serious question to be submitted to the Court, whether the defendant was justified in recording it and claiming the areas, and that the injunction could not be dissolved. Held, further, that the injunction would not be disturbed on account of mis- representations in the affidavits on which it was obtained, unless the case were such that if the facts had been stated accurately, the injunction would have been refused. Ritchie, E. J., (October. 1879,) delivered the judgment of the Court : — The question at present before the Court is simply whether the injunction restraining the defendant, Cameron, from disposing of or in any way encumbering the title to the gold mining areas should be dissolved or remain in force until the hearing. The object and effect of the injunction is merely to preserve the property in dispute in statu quo till the case is ready to be heard ; and if it is made to appear that there is EQUITY. 371 a real and substantial question to be tried, and tbat the property ought to be preserved in the meantime, the injunction should continue. Many of the statements made on the part of the plaintiff have been contradicted on the part of the defendant, Cameron. To these I shall not at present advert ; but there are others, and those by no means unimportant, which are uncontradicted. The agreements set out in the writ are admitted, and by them Cameron agreed to sell and convey to the plaintiff his farm at Charlotteburg, in the Province of Ontario, subject to a mort- gage of about $14,000, held by one Allan Gilmore, with all the household furniture and effects, (linen, pianoforte, family pictures, and personal wear only excepted,) agricultural implements, and chattels of that nature on the farm, the cows, heifers, bulls and calves, (in all nineteen,) two span of horses and harness, oats, hay, straw, and fodder, potatoes, and pigs, for $45,000. The plaintiff, in consideration, was to assume the Gilmore mortgage, at $14,000, in part payment, and to convey to Cameron the gold mining areas in question, and all tools, apparatus, engines, boilers, crushers, and everything belonging to the plaintiff at the mines, together with the stock of goods in the store there at $20,000, and for the balance of $11,000 he was to convey to the defendant, Cameron, his dwelling house and a lot of land at Truro, with all the furniture, live stock, and effects on the premises, (linen, family pictures, and personal wear only excepted,) and the parties became bound, each to the other, to procure all titles and documents necessary to furnish incontestable titles to the properties agreed to be sold, free and clear of all charges, mortgages, and encumbrances, except as therein referred to, the whole to be finally concluded and ended on or before the 1st October then next, so that all should be settled, titles passed, possession given, and finally concluded before that date. The first of the agreements bore date the 5th September, 1878; the other, which modified or supplied an omission, the 21st of the same month. There is a contradiction as to the circumstances under which the document to transfer the gold mining areas got into the possession of Cameron, after it had been executed by the 372 CAFFERY v. CAMERON et al. plaintiff; but the former admits that, having obtained it, he caused it to be registered at the Department of "Works and Mines, at Halifax, and claims title to them, though he had not performed his terms of agreement in any respect, nor offered to perform them, nor does it appear that he was then, or has since been in a position to do so. The title to the real estate which he undertook to convey to the plaintiff was not only subject to the mortgage to Gilmore, referred to in the agreement, but to a mortgage to the Quebec Bank, for $10,000, and to another to William Ramsay, for $5,000; while the personal property which he agreed to convey had been previously conveyed to William Ramsay, in security for $5,000, and shortly before the making of the agreement with the plaintiff, had been mortgaged to Daniel A. Cameron, for $1,200. In addition to this there was, in the hands of the Sheriff, an execution against Cameron at the suit of Ramsay by which any property owned by him was bound. This being the state of the property, real and personal, which the defendant, Cameron, had agreed to convey to the plaintiff in consideration of the transfer of the gold mining areas, there is, in my opinion, a serious question to be submitted to the Court, whether the defendant, Cameron, assuming his state- ment to be true as to the mode in which he obtained possession of the transfer, was justified in having it recorded, and now claiming to hold the areas as his property, and whether there- fore the injunction should remain in force, so as to preserve the property until the ultimate adjudication of the case. T have not failed to consider the points raised by Cameron's counsel that the injunction should be dissolved on account of the misrepresentation and suppression of material facts by the plaintiff, and that the attempt is now made to sustain it on different grounds from those contained in his writ. The only misrepresentation is a statement of the plaintiff, in his writ, that, up to the time of the preparation of the agreements, Lighthall was an entire stranger to him, though he now admits that such was not the case and asserts that the state- ment in his writ to that effect was a mistake of his solicitor, arising from the plaintiff's deafness. This may or may not have been the case, yet if a party has obtained an injunction EQUITY. 373 on a mis-statement or suppression of fact, it will on that ground alone be dissolved ; but the mis-statement or suppression must be material, presenting a case different from that on which the injunction was granted, where it would not have been granted if a more accurate statement had been made. See Kerr on Injunctions, 628. This mistake or mis-statement does not appear to me to be of that character, nor do the grounds on which the plaintiff seeks to sustain his injunction appear to me to be substantially different from those on which it was obtained. It is true that in his writ he asks relief on the ground that a fraudulent representation had been made to him respecting Cameron's title to the properties he undertook to convey to him, but he also stated that as soon as he became aware of the encumbrances on them, he, on that ground, objected to Cameron having possession of the transfer of the mining areas, and to its being recorded and acted upon. There may have been no fraudulent conduct on the part of Lighthall or Hawkes ; as to that the evidence is contradictory, and I shall at present pass no opinion upon it, but it is a question open for discussion whether, under the facts admitted, the act of Cameron, in putting the instrument on record when he did, and his now insisting on his right to retain the areas, is not a fraudulent proceeding on his part, and that, and not the fraud of Lighthall or Hawkes, is the material question. PERLEY et al. v. SNOW et al. A testator, by his will, devised and bequeathed his real and personal estate to his wife and another, as executrix and executor, in trust to sell the same and invest the proceeds in the best securities they could obtain, and, upon the coining of age of the testator's children, to divide the money among the children and the widow, in specified proportions. The executor, with the consent and acquiescence of the widow and executrix, loaned a part of the trust funds to merchants engaged in ship-building, who afterwards became insolvent and unable to re-pay the money. Held, that the trustees were not justified in investing the money on personal security, and must make good the loss to the children ; but that the widow could not make her co-trustee liable to her for the loss she might sustain, having acquiesced in the investment. Ritchie, E. J., (October, 1879,) delivered the judgment of the Cpu rt : — James E. Perley, by his will, appointed the defendant, Jabesh Snow, and his wife, Emma C. Perley, the executor and 374 PERLEY et al. v. SNOW et al. executrix, and devised and bequeathed to them all his real and personal estate, in trust to sell the same, and to invest the proceeds in the best securities they could obtain, and to pay and apply the interest for the maintenance of his wife and children and the education of the latter ; and, on his youngest child attaining the age of twenty-one, in trust to divide the money or securities into three equal shares, and to divide two- thirds among his children, the present plaintiffs, share and share alike ; the other share of such money or securities to be held by his said wife to her own use absolutely. After the death of the testator, the business of his estate was principally managed by Mr. Snow, but not without consultation, from time to time, with Mrs. Perley, all the funds of the estate having been received by him, and the investments made by him, with the exception of about $420 of the principal money, which was received by Mrs. Perley. Whatever interest has been received it is admitted has been faithfully paid over by him in accordance with the trust. Mr. Snow, in his answer, admits that in the month of July, 1864, he, with the consent of his co-trustee, loaned to Lewis A. Sponagle and Stephen E. Tupper, merchants of Liverpool, on their joint and several note, the sum of $1,600, part of the trust fund. These persons were then in good credit, but in 1873 they became embarrassed in their business, and, when called on to pay the amount due, they were unable to do so, and the only security Mr. Snow could then get was the mortgage of a vessel, which turned out valueless. Both Sponagle and Tupper then were, and have ever since been insolvent, and so much of the trust fund has been lost, which the plaintiffs contend the defendants are liable to make good, so far as they are interested in it. At the time this suit was commt iced, Mr. Snow had in his hands, belonging to the trust, $95.2u in cash, and he was indebted to the fund $1,211.10, — a note of hand then held by his co-trustee. These sums have since been paid into Court, by an order of the Court ; in addition to which there were two other investments made by Mr. Snow, for which he must be held liable, — and, indeed, he has recognized his liability for them,— one of them to Albert Graves, for $188.33, the EQUITY. 375 otheifto John Hogan, for $184.69. Neither of the defendants can be held liable for the amount due the estate, by A. G. Campbell. It was a debt incurred in the testator's lifetime, and since his death Campbell has been insolvent. The investment of the trust fund on the promissory note of Sponagle and Tupper was not justifiable. It should not have been made on personal security at all, and unquestionably should not have been loaned without security to persons engaged in trade* and ship building. The loan was made in the first instance wjith the concurrence of Mrs. Perley. It is obvious from the correspondence in evidence that she felt it was not a satisfactory investment, and it ought to have been called in long before the paities to the note became insolvent. Previously to the loan the money had been invested on bond and mortgage, and it is not to be credited that such an invest- ment of the money could not have been made between 1864 and 1873 ; and however available the answer of Mr. Snow to Mrs. Perley may be, that she consented to the investment remaining rather than incur the risk of losing interest while remaining uninvested, it can avail nothing as regards the plain- tiffs. Mr. Snow seems to have been under the impression that if he obtained the consent of his co-trustee, he was relieved from responsibility. This, at most, could be only as respects her own interest in the fund. If the will of Mr. Perley had been altogether silent as to the investments and it had been so left to the discretion of the trustees, such a loan as that in question would have been unjustifiable. Here they were required to invest the funds in the best securities they could obtain, and there was no reason why they should confine themselves to Liverpool. Investments on good security, by bond and mortgage, are constantly obtainable elsewhere on landed property in town and country. It may be taken as a general rule that trustees are not justified in lending trust money on personal security unless they have an express authority to do so, and mere general expressions giving a discretionary power as to the investments to be made will not be sufficient. The amount of the trust fund to which the plaintiffs will become entitled on the youngest of them attaining the age of twenty-one must be made good, 376 PERLEY et al. v. SNOW et al. and, as the defendant, Snow, has, in his answer, expressed his willingness to relinquish his trust, and that another or other trustees should he appointed, and the other defendant has made no defence, the decree will be that the defendants pay into Court such sum as, with that now paid in, will amount to two-thirds of the whole trust fund which came to their hands, and that one or more trustees be appointed in place of the present trustees, by whom the amount shall be invested, in accordance with the terms of the will of James E. Perley, deceased, in trust, to divide the same among his children, the plaintiffs, share and share alike, on the youngest attaining the age of twenty-one, and, in the meantime, to pay and apply the interest arising from such investments for the maintenance of his wife and children and the education of his children as speci- fied in his will. The plaintiffs are entitled to their costs. The judgment I have just given embraces all that was directly before the Court in this suit, but as I am requested, on the part of the defendants, in order to prevent further litigation, to give my opinion as to the liability of Mr. Snow to make good to his co-trustee, Mrs. Perley, the loss occasioned to her by the loan to Sponagle and Tupper, and the parties have agreed to the necessary amendment of the pleading, I will do so. The evidence shows that Mrs. Perley was consulted as to the investment in the first instance and allowed it to be made, and, though apparently doubtful of its propriety, consented to its continuance. She cannot now make her co-trustee liable for the loss she may sustain by it. It has been settled by a series of decisions that where a cestui que trust, sui juris, acquiesces in an improper investment, he cannot afterwards call it in question. Brice v. Stokes, 11 Ves., 319, is a leading case on the question. Lord Eldon there held that if a particular cestui que trust has authorized an invest- ment on personal security and permitted it to continue, in a question between him and the trustee the latter will not be held responsible to him for a loss, so far as his interest in the fund is concerned. In Booth v. Booth, 1 Beav., 130, the Master of the Rolls said ; " I am of opinion, on the authorities and on the established rule of this Court, that a trustee who EQUITY. 377 stands by and sees a breach of trust committed by his co-trustee, becomes responsible for that breach of trust." And again in Walker v. Symonds, 3 Swans., 64, the Lord Chancellor said ; " It is established by all the cases that if the cestui que trust joins with the trustee in that which is a breach of trust, knowing the circumstances, such a cestui que trust can never complain of such a breach of trust. I go further, and agree that either concurrence or acquiescence without original concurrence will release the trustee." In this case Mrs. Perley's control over the trust fund was the same as Mr. Snow's and she could have prevented the loss if she had refuse 7 Ch., 85, James, L. J., said ; " The rule of equity is the rule of Common sense, that where a person has, either through fraud or otherwise, executed a deed and signed a receipt containing an unmistakeable representation of a matter of fact, the person who has so executed the deed and signed the receipt is to suffer the loss arising from an undue use of them, and not another person who has in the ordinary course of business, without negligence or default of any kind, trusted to the document ;" and in Weldon v. Sloper, 1 Drew., 193, Sir R KlNDERSLEY said ; " It is an elementary principle that a party coming into equity is bound to shew that he has not been guilty of such a degree of neglect as to enable another so to deal with that which was the plaintiff's right as to induce an innocent party to assume that he was dealing with his own.'' As regards the plaintiff, James A. Stewart, he has, in my opinion, no locus standi, — he was not a registered owner, and was not known to be interested in the vessel by Albro, and if Donald held shares in trust for him, he may be answerable to him for a breach of trust in mortgaging them, but a purchaser ignorant of the trust would take the shares from the trustee free from the trust. There are, therefore, but two questions involved in this case. Did Robert Boak acquire the. title to the vessel bona fide for a valuable consideration ; and did he do so without notice of any defect in the title, that is, assuming that there was a defect arising from misconduct on the part of Albro, and, I have already said, that in my opinion no such misconduct existed. On the first point there can be no doubt. There is no evidence whatever to impeach the bona fides of the purchase by Mr. Boak, and no doubt exists in my mind from the evidence that when he acquired the title he had no notice of any adverse claim or that the title was questionable. The only witness who asserts that notice was given to Robert Burns Boak is Neil Stewart, and he is contradicted by him. And Mr. Worrall, in whose office he says he informed Boak of the objection to the mortgage just before the sale, testifies that EQUITY. 471 Boak was not present at the conversation he had with him. He also says he informed Mr. Robert Boak of the objection before the purchase. This is positively denied by Mr. Boak, who asserts that, till after his purchase, he knew of no such objection. Neil Stewart does not deny that he was present when the vessel was sold, and then made no objection, and he admits that after Mr. Boak had become the purchaser he accepted from him the situation of master, and took charge of her and brought her to Halifax, and at the instance of Mr. Boak endeavoured to sell her at Newfoundland, for his, (Boak's,) benefit. Neil Stewart is contradicted by other entirely disinterested witnesses on other points. As regards the agreement between him and E. Albro & Co. as to the number of shares to be inserted in the mortgage, his testimony is directly at variance with that of Austen and Twining, and is not consistent with his own letters to that firm, particularly those of the 28th March, and 16th May, 1877, and no doubt is left on my mind that Mr. Robert Boak is a bona fide purchaser of the vessel in question for valuable consideration, without notice, and that the plaintiffs have failed to shew that they are entitled to the relief they seek, and the defendants are therefore entitled to a decree in their favor, with costs. WHITMAN et al. v. COLP. B. & E. CoLP, being the owners of certain lands, subject a to mortgage of $2,666, and indebted to other parties in the sum of $691, entered into an agreement with J. Hubley and C. A. Whitman, whereby, in consideration of the latter agreeing to liquidate the mortgage and the other debts, the parties first mentioned agreed to deed to them the real estate mentioned in the mortgage. It was further agreed that Hubley, Whitman and B. Colp, the defendant, should carry on a lumbering business on the property. The debts were accordingly paid, and the plaintiffs and defendant conducted the business, but defendant refused to sign the deed of the property, denied that a partnership had been entered into as alleged, and claimed that the agreement had been procured by misrepresentation, which he failed to prove. Held, that the plaintiffs were entitled to specific performance of the agreement. Ritchie, E. J., delivered the judgment of the Court : — The plaintiffs, in their writ, set out that the defendant and one Edmund Colp were the owners of certain lands described 472 WHITMAN et al. v. COLP. therein, subject to a mortgage held by one Francis Mumford and others, upon which there was then due $2,666.66, which was under foreclosure ; and the defendant and Edmund Oolp, carrying on business as lumberers and millers, under the firm of B. & E. Colp, were also indebted to other parties in the sum of $691.34 ; that they, on the 3rd April, 1879, entered into the following agreement with the plaintiffs : — " This Indenture, made this third day of April, 1879, between Benjamin Colp and Edmund Colp, of St. Margaret's Bay, in the County of Halifax, and Province of Nova Scotia of the one part, and James Hubley and C. A. Whitman, of St. Margaret's Bay, in the county and province aforesaid, of the other part, witnesseth that the said B. & E. Colp, for and in consideration of the sum of three thousand, three hundred and fifty-eight dollars of lawful money of the Dominion of Canada> to be paid for them, as follows, in liquidating debts, viz. ; — 1st. The present claim of F. Mumford & Sons against them of $2,666.66. 2nd. Several other bills to the amount of $691.34, — by the said James Hubley and Charles A. Whitman, when demanded by their creditors, do hereby agree to deed to the said James Hubley and C. A. Whitman all the property and real estate included in the mortgage now held by F. Mumford & Sons subject to said mortgage, together with all the logs which are now on the lakes or in the river claimed by them. It is further agreed by the said James Hubley and C. A. Whitman to admit the aforementioned Benjamin Colp to an equal possession with themselves severally of the above- mentioned property, on condition of his assuming with them an equal share in the above payment of $3,358 for the late firm of B. & E. Colp, or, in other words, the three parties last mentioned are each to hold one-third of the property by paying equal shares of its cost. Benjamin Colp, Edmund Colp, James Hubley, C. H. Whitman." They further allege that it was agreed that the plaintiffs and defendant should enter into a co-partnership under the style of Whitman, Hubley & Co., for the manufacture EQUITY. 473 and sale of lumber, and that each partner should have one-third of the profits resulting from the business ; that immediately on the agreement being entered into, the plaintiffs went into the possession of the lands in con- junction with the defendant, and expended a large sum of money, (about $1,500,) in the erection of a lumber mill upon the premises, and satisfied the claim of the Mumfords against the defendant and Edmund Colp, and paid and satisfied the claims against them specified in the agreement, amounting to $691.34, and expended a large sum of money in the business, but the defendant never assumed his share of the payments referred to in the agreement, or paid any part thereof ; that the plaintiffs tendered to the defendant and Edmund Colp all necessary receipts and releases of the debts to be paid by them, and at the same time tendered to them for execution a deed of the said lands, which was executed by Edmund Colp, but the defendant refused and still refuses to do so ; notwith- standing this the plaintiffs took him in partnership, and permitted him to participate in the profits, and such partner- ship continued till the commencement of this suit ; that the defendant has violated the terms of the partnership, and has attempted to sell, and is in treaty for the sale of logs cut on the lands for his own private use and benefit, and threatens to sell his interest in the lands irrespective of the rights of the plaintiffs, and the plaintiffs pray for a specific performance of the agreement, and that the defendant may be restrained from selling the lands and selling or disposing of the logs cut thereon, or any assets of the firm of Whitman, Hubley & Co., for his own use ; that he may be decreed to convey his interest in the lands to the plaintiffs ; that the partnership may be declared to be dissolved, and that an account may be taken of the business, and that whatever may be found to be due from the defendant may be decreed to be paid to them. The defendant, in his answer, asserts that when he signed the agreement set out in the plaintiffs' writ he did not know its contents ; that he did not read it, and trusted to the assertion of the plaintiffs that it was a paper wanted to satisfy the Mumfords; that he was willing the plaintiffs should 10 it 474 WHITMAN et al. v. COLP. arrange the mortgage matter for himself and his brother Edmund, and they both signed the paper, believing this to be the case ; that he never intended or agreed to sell his interest in the property, and if the plaintiffs have obtained his signature to an agreement such as that set out in the writ, it was obtained by fraud and misrepresentation on the part of the plaintiffs ; that he never entered into co-partnership with the plaintiffs under the name of Hubley, Whitman & Co., upon the terms and for the purposes stated in the writ. He admits that the plaintiffs have put a small addition to the mill, but not of the value stated by them, and have paid off a portion of the claims against the property, but have not, as he believes, paid off the mortgage on it, and they have received a large amount from the proceeds of the lumber manufactured, and the defendant claims that he is entitled to one-half of the logs cut during the past winter, subject to one-half of the charges, and the same do not belong to any firm composed of the plaintiffs and the defendant; and he claims a right to dispose of them in any way he pleases, subject to the charges ; that he has always contended that the agreement was inoperative and of no effect ; that he has expended a much larger sum in connection with the mill and property than the plaintiffs, and he denies their right to have the agreement specifically performed, but is willing that the accounts between them should be settled and adjusted, and as regards the logs cut during the last winter, he claims that one-half of them belong to him, and he is prepared to pay his share of the expenses connected therewith as soon as the same is adjusted. After careful consideration of the evidence I have come to the conclusion that the agreement set out in the plaintiffs' writ was entered into by the defendant with a full knowledge of its contents, and that there is no foundation for his state- ment that he was induced to execute it by fraud and misrepresentation on the part of the plaintiffs, and that the partnership referred to in the writ was entered into and carried out for a considerable time by the parties ; and as it appears from the evideucfc-.\hat the plaintiffs have, on their part, fulfilled the terms of the agreement, they are entitled to EQUITY. 475 have them carried out by the defendant by his conveying to them the real estate included in the mortgage to the Mumfords, whereupon the plaintiffs shall convey to the defendant one-third thereof, on its being made to appear that he has fulfilled the terms of the agreement which entitle him to such conveyance ; but in the first instance it will be referred to a Master to report thereon, who shall take an account of all matters in controversy between the parties in the suit, and of all the dealings and transactions of the partnership, which is declared to be dissolved, — all parties to be at liberty to apply to the Court as there may be occasion. Costs reserved. In Re THE HALIFAX YACHT CLUB. The petitioner, as administratrix, recovered judgment against the Halifax Yacht Club, and issued execution, which was returned unsatisfied, there being no assets. She then resorted to the individual liability of the corporators under Revised Statutes, chapter 53, section 13, but the Supreme Court decided that the section did not apply to such a corporation. Petitioner then applied to have the affairs of the company wound up. Held, that the Provincial Act in reference to winding up of companies differing from the English Act in that it was expressly made applicable to clubs, could be invoked for the purpose of winding up the Halifax Yacht Club, but that, as there was no individual liability, and it was admitted there were no assets, the prayer of the petition should not be granted, as it would only create needless litigation. • Ritchie, E. J., delivered the judgment of the Court : — The petitioner, Jane Scott, the widow and administratrix of Alexander W. Scott, deceased, alleges that Alexander W. Scott, for many years preceding and at the time of his decease, was a member of the club, which was incorporated by an Act of this Province, and was then and had been for several years previously the secretary of the club ; that about a year after his death she commenced an action against the club for an amount due to her as administratrix, and subsequently obtained judgment on an award made in her favor for $2,464.16 ; that she caused execution to be issued against the club which has been returned unsatisfied, no assets being found on which to levy ; that John Pugh, Esquire, is commodore, and Cuthbert C. Vaux is the secretary, and both are members of the club ; 476 In Ee THE HALIFAX TAGHT CLUB. that it has ceased to carry on its operations, and it is not intended, as she believes, to resume them ; that -when the debt was contracted and the judgment obtained there was and continues to be a large number of members, as she was informed, but she is unable to give the number or state the names ; and she prays that an order may pass for the winding up of the affairs of the club. The prayer of the petition is opposed on several grounds ; 1st. That the Provincial Act respecting the winding up of incorporated companies does not apply to such a corporation as this ; 2nd. That the petitioner is not entitled under the terms of the act to apply for the winding up of the corporation ; 3rd. That the members of the corporation, as such, are not liable, to contribute towards the payment of the debt due to the petitioner, and it is admitted it has no funds. Such a corporation as this would not come under the operation of the English winding-up act, and neither that act nor ours seems as applicable to clubs such as this as to corporations in general ; but the wording of our act differs from the English, and in terms seems to embrace this club. The second section is; "This Act shall apply to all incorporated companies, associations, or clubs incorporated by the Legislature of the Province of Nova Scotia, or under the authority of any Act of this Province," &c, &c. I do not see how, under an act so worded, I could say that this club cannot come within its provisions. In the English act the word " clubs " is omitted. It does not follow because such a corporation may be ordered to be wound up, that it necessarily must be. The order to that effect will be made on the application of a contributor, only when, in the opinion of the Court, such a course is just and equitable ; and the act contemplates that the application shall only be made by the company or by a contributory or contributories, and it by no means follows that- all the provisions of the act apply alike to all corporations In winding up a company the liability of members as con- tributories is to be established, or their freedom from liability ascertained from the constitution conferred upon it, and to certain classes of corporations the act, notwithstanding the comprehensiveness of its terms, is wholly inapplicable. EQUITY. 477 It is objected that the petitioner here is not a member of the corporation or a contributor, and has no right to make the present application. Whether she can be deemed a contributor or not under the act, it is not really in that character that she applies, but as a creditor seeking by this mode to obtain payment of her debt from the members of the club. This is avowedly the object of the application. Now, if the members are really liable to pay this judgment, a very easy mode is pointed out by which payment may be obtained, for by the 13th section of chapter 53 of the Revised Statutes, " in case any execution on any judgment against a corporation shall be returned unsatisfied, the individual property of each member shall be liable to respond the judgment under execution thereon, as if it were a private debt due by the member." This simple course has been resorted to by petitioner, and the Supreme Court has decided that no personal liability exists on the members composing the yacht club to pay this judg- ment .; that is, that, on general principles, no such liability exists on corporators for the debts of the corporation, and that the provisions of chapter 53 of the Revised Statutes, imposing such liability in certain cases, do not apply to such a corpora- tion as this, and to that decision I feel myself bound to conform. It cannot be questioned that without express provisions to the contrary no member of a corporate body is individually liable for its debts, and as it has been thus decided that chapter .53 of the Revised Statutes, by which alone personal liability is imposed on corporators where charters or acts of incorporation are silent on the subject, has no application to this club, and it is admitted by the petitioner that there is no corporate property, and that, in faet, it has ceased to exist, having for some time past ceased operations as a club, with no intention of resuming them, to grant the prayer of the petition and make an order for winding up its affairs would have no other effect than to create a needless expense and be attended with no beneficial result to the petitioner, 478 MASON et al. v. SHEDD et al. MASON et al. v. SHEDD et al. The owner of land leased a parcel to plaintiff, for the purpose of erecting a lobster factory, for the term of five years. About ■*■ twelvemonth afterwards the defendant, Shedd, applied for a lease of the same land for a similar purpose. Defendant admitted that when he had part of the materials on the ground for the erection of his building plaintiff forbade him to proceed, and asserted his right to the land, and, althoagh it was alleged in the answer, the evidence did not justify the conclusion that plaintiff had ever abandoned his right under the lease or contemplated doing so. Held, that plaintiff was entitled to have an injunction to restrain defendant from proceeding with the erection of the building, as the remedy at common law was not full and adequate, and it would be impossible for a jury to estimate the damages with accuracy. Kitchie, E. J., delivered the judgment of the Court : — The plaintiffs in this suit seek to restrain the defendants from erecting a lobster factory on land of which they have a lease, and from committing further trespasses upon it. In December, 1879, William Henderson leased to the plaintiff, Mason, one-half acre on the north side of Savage Beach, so called, and also his interest in Savage Beach for the term of five years, for the sum of $20, to be paid annually, which if not paid the agreement was to be void. In his answer, the defendant, Shedd, says that, being desirous of obtaining a suitable site for a lobster factory, he applied to Henderson for a lease of Savage Point, and an additional half -acre on the further (i. e., on the north side of Savage Beach,) side of the road from Savage Point, (the two leases were obviously intended to convey the same premises,) and obtained it. This was in September, 1880. He admits that he knew of the lease to Mason and of its terms, but he says he was told by Henderson that he had abandoned and rescinded the agreement, and had no notice that he claimed under it till a month after, and after he commenced building. It also appears from his answer that Mason's object in obtaining his lease had been to erect a lobster factory on the premises ; that he, Shedd, entered into his agreement, and was induced to do so not only because the previous agreement with Mason had been abandoned, but because there was a failure of consideration on his part in not having proceeded in the EQUITY. 479 ensuing spring with the erection of a lohster factory on the premises, as he had promised to do ; and he alleges that the plaintiffs are not entitled to the relief they seek in this Court, as they can obtain a suitable site for erecting a lobster factory elsewhere in the neighbourhood, and that therefore the injury is not irreparable. The only defence that can avail the defendant is that previous to the lease to him Mason had surrendered his right to the land to Henderson, and that, whether he had done so or not, he has no right to the relief he now seeks in this Court, his only recourse, if any, being at common law ; for even if he had promised to erect a lobster factory by a verbal agreement, as stated, the lease would not be invalidated by his not having done so. In his evidence Shedd says that he was aware of Mason's assertion of right by notice given before he commenced building. He had part of the materials on the ground and part in transit when Mason forbade him from interfering with him. After carefully considering the whole evidence, there is nothing, in my opinion, to justify the conclusion that Mason ever abandoned his rights under his lease, or contemplated doing so. Mason himself denies that he did so, either verbally or in writing, and says that when he went to forbid Shedd trespassing on the land, on Henderson being asked what all this meant, instead of saying that Mason had abandoned all right under his agreement, Shedd's reply was, " he had nothing to do with it ; that he was clear of it." And when on that occasion he was asked whether he, (Mason,) should take his half -acre along the road or square, he said : " You had better take it square," and it was then surveyed by Mr. Dawson, without remonstrance from him, but with his assent, and on the New Year's Day following Henderson proposed that if he would give up the lease and go in with him they would make a good thing of it, as there would be no trouble in getting two or three hundred dollars each out of Shedd. William McLean was present when Shedd was notified by Mason of his claim. He had gone on the premises with the surveyor to lay off the half -acre lot. He said to Henderson he was surprised, — why 480 MASON et al. v. SHEDD et al. did he not wait till the lease expired ? His answer was, not that Mason had given up his claim under it, but that he had nothing to do with it ; he had secured himself. Mason told him he had come to survey his half -acre. Henderson made no objection. Mason asked which way he preferred, length- ways or square. Henderson said he preferred the square. The surveyor then proceeded. Witness told the surveyor and chainman to take care and destroy as little of the grain as possible. Henderson said it was all right. And he goes on to say that from the time they first met Henderson on the beach until the survey was completed not a word was said by him or by any other person about the abandonment of the lease. Mr. Dawson, the surveyor, was employed by Mason, and went with him and McLean to make the survey. He says Henderson was there ; McLean or Mason said they had come to survey the lot they had leased for a lobster factory ; he said he had nothing to do with it now, he had leased it to another company ; McLean asked him how he could do that when he had leased it to Mason ; he replied : " The other company know all about your lease, and you must fight it out with them; they know all about Mason's lease, and have taken a lawyer's advice on it." He said it was not his fault, that he told them everything about it ; they pointed out the half-acre supposed to be leased ; " Henderson told me it was bounded on the road ; they told me to lay it off according to the road and the shore. From the time we landed on the beach till the survey was completed we did not hear Henderson say one word about abandoning, on the contrary, he admitted that Mason had paid all he agreed. Before beginning the survey he said : ' I'll go with you, but I have nothing to do with it ; you must settle it among yourselves.' " The only evidence of Mason having relinquished his right under the lease is that given by Henderson himself, Alice Henderson, his wife, and Margaret Henderson, his mother. The former says ; " I remember one conversation about the lobster factory when my wife and my mother were present ; Mason said there was a, company of four or five, and the one with the most coppers had gone away, the company scattered, and they would not go ahead with it ; Mr. Mason told me the same thing afterwards, EQUITY. 481 once at least ; Shedd then came along, and I entered into negotiations -with him." On cross-examination ; " When Mason told me that his company broke up, he said he could not go on next spring." Alice Henderson, in her evidence, says ; " I remember Mason being down in the spring several times ; he was talking different times to me and my husband about the factory ; one time we asked him if the factory was. going on in the spring ; he said, ' No, (he company is burst up, we have not coppers enough to go on with it this spring ; I guess we will have to give it up ;' and after that I do not think he was down till they made the survey." Margaret Henderson, referring to the same conversation, says ; " William, (i. e., her son,) asked Mason if he was going on with the factory ; he said the coppers were too scarce, and the company was scattered, and he did not think the factory would go on ; this was the only conversation between them that I picked It is obvious that no legal surrender of Mason's lease had taken place when the lease was given to Shedd. That would not be effected by any such conversation between the parties ; but independently of the positive denial of Mason I see nothing in the evidence of the Hendersons to lead me to believe that he ever expressed to them any intention of abandoning his right under his lease. Their evidence, in my opinion, merely shews that he was not able to commence operations on the land that spring, and I cannot help coming to the conclusion that Henderson well knew that ■ such was his meaning. His whole conduct with reference to the transaction shews it ; and it is singular that in the conversations referred to he should not have ascertained distinctly from him whether he did wish to surrender his lease. The only time he did make any application on the ground that there were other appli- cants, the answer of Mason was, " Send them to me." So, too, Mr. Shedd, one would suppose, would have ascertained from Mason whether he had or had not surrendered, especially as he went to a lawyer, who would have told him that to destroy the effect of the former lease there must have been a distinct and unequivocal surrender, and that, too, in writing. I cannot say I have been impressed favorably with the conduct of 482 MASON et al. v. SHEDD et al. Henderson in the transaction, nor with the evidence he has given. I need not refer now to the latter, for, assuming it all to be true, I must have arrived at the conclusion that the granting of the lease to Shedd was unjustifiable, and that it conveyed no title to him of any of the land comprised in that to Mason. It only remains to be considered whether relief is to be denied to the plaintiffs on the ground that full and adequate relief could be obtained at common law. Mr. Henry contended that this Court would not interfere and grant relief in case of trespass unless the injury done was irreparable, and such as could not be compensated by damages. It is no objection to the exercise of its jurisdiction that a remedy at law exists ; the question is, can the remedy be as effectual there as here ? What the Court deems irreparable injury is, not merely that which cannot possibly be repaired, but such as cannot be fully and adequately repaired by damages, and this Court will give redress when the amount of damage cannot be accurately ascertained in a court of law. In this case the plaintiffs have the property for a limited time ; the defendants, by taking possession and erecting buildings on it, may so restrict them in the enjoyment of the term as to render it imprudent for them to expend money in the erection of buildings, for it may be that but a short balance of the unexpired term may remain after they are enabled to get possession. If recourse should be had to an action of ejectment, and if no action of trespass should be brought, how could a jury estimate the injury done to the plaintiffs? If prospective losses or damages could be given, which they could not, in my opinion, in such a case as this, there would be no means of accurately estimating them. The plaintiffs are prevented from erecting their factory and carrying on the business of canning lobsters, for which they obtained the lease, which might or might not be profitable, and if profitable to a greater or less extent. The defendent, indeed, suggests that they might go elsewhere and seek a site in the neighbour- hood, while he is left in possession of their property, whereon to erect a rival and competing factory, — a cool proposition, under the circumstances. It would, I think, be utterly EQUITY. 483 impossible for a jury to estimate the amount with any degree of accuracy, and in my opinion this Court alone can give the plaintiffs the relief to which they are entitled. I had some doubt with respect to the half-acre lot, but, on consideration. I think that defendants should be enjoined from building on that or the Savage Beach, and that the prayer of the writ, so far as the injunction is asked for, should be granted with costs, and a decree to that effect will pass. SMITHERS et al. v. SMITHERS. Interlocutory order, to compel executorto pay in to Court the proceeds of sales, in a suit brought to remove the executor from office, refused, the affidavits on which it was founded being answered in every essential particular. Summary remedy provided by Probate Act recommended. Ritchie, E. J., delivered the judgment of the Court : — In this suit, which was instituted by the plaintiffs, legatees under the will of the late George Smithers, deceased, against the surviving executor of his will, they seek to remove him from that office, and that he be restrained from selling, or attempting to sell, or disposing of, or intermeddling with the assets of the estate, and that a trustee be appointed in his place, and that in the meantime a receiver be appointed to manage the estate. An order nisi was obtained, calling on the defendant to shew cause why he should not pay into Court the proceeds of the sale of any property, real or personal, of the estate, which might then or thereafter be sold by him, and that in the meantime he should not appropriate or use any part of such proceeds to any purpose whatever. In order to sustain an application for such an interlocutory order in such a suit as this, it is incumbent on the parties applying to make it appear that there has been misconduct on the part of the executor, or that the assets of the estate are in danger of being wasted. This has not been done to my satisfaction in the present instance. The case presented by the affidavits ' on the part of the plaintiffs was not a very strong one, and it has been answered by the defendant in 484 NEWCOMB v. SIMMONDS et al. every essential particular. If the plaintiffs considered they had grounds for removing the defendant from the executorship, I cannot help thinking that their more obvious course of proceeding, the whole estate being before the Probate Court, ■would have been to have applied there, the Judge of that Court having power, on a summary application, if he should think it for the interest of the estate, to order an executor to pay the money of the estate coming into his hands into a chartered bank to the credit of the estate, and, upon due proof that he is wasting the estate, to require him to give security for the due performance of his duty ; and if such order be not obeyed, he may cancel the authority and appoint another in his place. Thus all the relief sought for in this suit would be afforded in the mode pointed out by the legislature at com- paratively little expense. Without deciding that this Court might not exercise jurisdiction in such a case as this, I do not think that the plaintiff's have shewn sufficient grounds for the interlocutory order they have asked for, as, in my opinion, none of the charges against the defendant have been established. The order nisi, therefore, must be discharged with costs. NEWCOMB v. SIMMONDS et al. Defendant, being indebted to various parties, and fearing lest his creditors should resort to his property to obtain payment, conveyed all his land to his son, the other defendant, while at the same time he and his family were to continue to enjoy the benefit of it. In their answer the defendants alleged a debt due by the father to the son, and an agreement by the latter to support his father, but the defendants gave no evidence. Held, that the answer of the defendants could not be used as evidence at the hearing, and that plaintiff, as creditor of the father, had a right to a decree to set aside the deed. Ritchie, E. J., delivered the judgment of the Court : — The deed sought to be set aside in this case was made and registered on the 17th December, 1878, and by it the defendant, Christopher Simmonds, conveyed to his son, the other defendant, all his real and personal property. The consideration mentioned in the deed is $5,700. No money was in fact paid. EQUITY. 485 In their answer the defendants allege that the real considera- tion was wages due to the son by the father and an undertaking on the part of the son to maintain the father and his family, and to supply the funds to pay his debts. They have,however, not been examined themselves, nor have they produced any evidence in support of their case. The deed is absolute and unconditional in its terms. The plaintiff has shewn that, previous to the execution of the deed, the defendant, Christopher Simmonds, was indebted to him, for the amount of which he subsequently obtained a judgment. It also appears from the evidence that Christopher was indebted to other persons, in all to the extent of about $1,000. Having heard that the deed had been made whereby he had divested himself of all his property to his son, the plaintiff asked him for security by a joint note of himself and his son. He said he would see his son, and that he and his son would pay the debt as fast as they could. North, a witness, testified that Christopher was indebted to him. He, also, offered to give time for payment if his son would be responsible to him. He replied that if his son became responsible to him he would have to become responsible to others, and would be torn in pieces. He made the same proposal to William, the son, who said he would be willing to do anything his father said. Riley, another witness, who was a tenant of part of the property, says that in June, 1879, he had a settlement of rent with Christopher up to August, 1879, who then said that he expected to go to gaol in a few days, and he wanted things straightened up before he went. And he also said that shortly after he had given the deed to his son, he sent for him and told him his son was sole proprietor there now, and asked if he knew how long a deed had to be on record before it would stand law. He replied he did not know. Christopher said it used to be thirty days. Witness said he heard it ought to be three months. He then said he would try and keep out of sight for three months. If he had to go to gaol he would make a gaol of his own house ; that he was afraid his creditors were going to tear him to pieces. Witness told him the plaintiff had said that he would take his and his son's note for 486 NEWCOMB v. SIMMONDS et al. the debt. He said he would not do it, that he had begun and would carry it through. Witness said plaintiff had told him he would not wait five years ; he got angry and said it was only a trap to get his marsh out of him ; he would stay in the house three months to make the deed good. He said he owed about $1,000 except the mortgage. (There was a mortgage on the real estate for $400.) He asked if he could put into a promissory note for his son to support the family, pay the bills, and pay the balance to him. Witness replied that he did not think that would be a note of hand, it would be an agreement. He said he intended to swear out ; they could not keep him, as he had nothing. Witness asked him how he could keep the notes of hand and swear out. He said he would not give the notes up. His wife was present. The only other witness produced was the sister of Mrs. Simmonds. She was only called to prove the age of William, her son, in case an attempt should be made to prove that wages were due by him to his father. His age, according to her statement, was twenty-one on the 24th of October last. All this evidence is entirely uncontradicted, and from it the only conclusion to be drawn is that Christopher, finding himself indebted, and fearing lest his creditors should resort to his property to obtain payment, conveyed it all to his son, in the hope of preventing this being done, while at the same time he and his family were to continue to enjoy the benefit of it. I can characterize his conduct as no other than fraudulent, and the plaintiff is therefore entitled to have the prayer of his writ granted, with costs. Mr. King, on the part of the defendants, seemed to think he was entitled to use the statements in their answers as evidence on the hearing. That, of course, could not be done ; but it does appear to me that the statements made there were such as to lead to the same conclusion as that to which I have arrived from the evidence adduced. EQUITY. 487 OAKES et al. v. RYERSON et al. Plaintiffs claimed to be entitled to a sum paid into Court by Messrs. Eyerson & Co. , under an assignment of it from H. M. Oakes. Previously to this assignment Oakes had given an order to Dunn & Vaughan on Eyerson for the amoant, which had been presented, and to which no objection was taken. The order was given to Dunn & Vaughan for supplies furnished by them for a vessel, the sale of which by Eyersons had created the fund, and was given in pursuance of a promise when the supplies were furnished, that they should be paid for out of the proceeds of the sale. Beld, that Dunn & Vaughan were entitled to o, decree for the amount of the order, with costs against the plaintiffs. Ritchie, E. J., delivered the judgment of the Court : — The plaintiffs claim to be entitled to a certain sum of money paid into Court by the defendants, Ryersons, to which the defendant, H. Melville Oakes, was originally entitled, under an assignment from him made the 16th November, 1874. Messrs. Ryerson declined to pay the money to them under the assignment, assigning as a reason previous claims of others, and referring particularly to that of the defendants, Dunn & Vaughan, who had previously presented to them an order for $2,170.80 from H. Melville Oakes in their favor. This last-mentioned order was given on the 13th November, 1874, and presented to Samuel L. Ryerson the same day, who made no objection. This order had been given to Messrs. Dunn & Vaughan for supplies furnished towards the building of the vessel, the proceeds of the sale of which created the fund in the hands of Messrs. Ryerson, and was given in accordance with a promise made to them when the supplies were given that they should be paid out of the proceeds of her sale. Though the giving of the assignment to the plaintiffs by H. Melville Oakes, after having given the order in favor of the defendants, Dunn & Vaughan, was a fraud on his part, there is no evidence that the plaintiffs, when they took the assignment, were aware of the existence of the order, and they now contend that the order previously given cannot have the effect of transferring the money to Dunn & Vaughan, and that they are entitled to it under their assignment. This contention cannot, in my opinion, be sustained. Numerous 488 KINNEY v. RYERSON et al. cases have established the principle that an agreement, even a verbal one, if clearly proved, between a debtor and a creditor, that the debt owing shall be paid out of a particular fund coming to the debtor will create an equitable assignment of the money. It is not too much to say that anything done in pursuance of an agreement for valuable consideration, or in consideration of an antecedent debt, to place a fund out of the control of the owner in favor of another amounts to an equitable assignment. Of the numerous cases in which this doctrine is recognized I will only refer to that of Burr v. Carvalto, 4 My. & Cr., 702, which is strikingly like the present. There an order was given by a debtor to his creditor upon a third person, having in his hands funds of the debtor, to pay the creditor out of those funds, and it was held to operate as a binding equitable assignment, and that it was not necessary in equity that the party receiving the order should agree or consent to hold the funds for the equitable assignee. In Yates v. Groves, 1 Ves. Jr., 281, the Court held that the order fixed the money the moment it was shewn to the party on whom it was drawn. The decree in this case must be in favor of Dunn & Vaughan for the amount of their order on Messrs. Eyerson out of the funds in Court, and their costs against the plaintiffs. KINNEY v. EYERSON et al. Plaintiff sought to set aside a judgment entered on a confession as made in contemplation of insolvency ; but the judgment creditor alleged and it appeared in evidence that the confession was taken only to indemnify the judgment creditor against loss on accommodation endorsements to be thereafter given, which were given. Held, that, although the judgment debtor was in insolvent circumstances at the time of giving the confession, the judgment could not be impeached, section 89 of the Insolvent Act of 1 875 referring only to securities given for pre-existing debts or liabilities. Ritchie, E. J., delivered the judgment of the Court : — The plaintiff seeks to have a judgment entered by the defendants, John K. Ryerson, Nathan Moses, and Samuel M. Ryerson, doing business at Yarmouth, under the name of EQUITY. 489 Ryerson, Moses & Co. against John T. Hutchinson, for the sum of $6,000 debt, and $15.80 costs of suit, set aside, as having been taken in violation of the Insolvent Act of 1809. A confession was given to the firm hy Hutchinson for $6000 and judgment was entered on the 30th April, 1874, which was registered to bind his real estate on the following day. On the 15th September following proceedings were taken under the Insolvent Act and he was placed in insol- vency. The plaintiff alleges in his writ that Hutchinson was in- solvent when he gave the confession, that it was given in contemplation of insolvency with intent to defraud his creditors, and was so done in collusion with Byerson, Moses & Co. ; that he was not indebted to them in $6000, his in- debtedness, if any, not exceeding the sum of $400 ; that the judgment was obtained and registered by them collusively and in fraud of the just rights of the creditors of the insol- vent and with the knowledge that Hutchinson was insolvent, with intent fraudulently to defeat, impede, and delay his creditors in their remedies against him, and to deprive them and the plaintiff, as assignee of the insolvent, of every claim on him or his real estate. The defendants in their answer deny that Hutchinson was insolvent and unable to meet his engagements when he gave the confession, and say that previously to his giving it he applied to thefirm to become accommodation endorsersforhim to theextent of £6000, and the firm consented to do so, provided he would give the security of a judgment for that amount to indemnify them for any amount they might be obliged to pay on account of such indorsement ; that in pursuance of this agreement the confession was given and the judgment entered and recorded, and on the faith and security of the judgment the firm carried out the agreement and became accommodation endorsers on certain bills of exchange and promissory notes, and became liable to pay and have paid as such endorsers large sums of money, and that at the commencement of this suit there was due the firm the sum of $3875.72 after credit- ing the sum of $2236 on account of the judgment. 10 v 490 KINNEY v. RYERSON et al. That Hutchinson was in insolvent circumstances and unable to meet his liabilities when he gave the confession is evident from his own testimony. He then owed money the payment of which was repeatedly demanded which he could not then pay and has not since paid. He had been sustained in his business up to that time by the use of accommodation notes, and the firm on whom he relied having failed, he was compelled to resort to other parties to afford him accommodation to enable him, as he says, to continue his business, and it was on that account that he applied to Ryerson, Moses & Co. Though Hutchinson was at the time unable to meet his engagements there is no evidence leading to the inference that this was known to Ryerson, Moses & Co. or that the arrangement en- tered into was made otherwise than in good faith on their part. Under these circumstances I fail to see that any of the provisions of the Insolvent Act have been violated. The only section which can be relied on by the plaintiff is the 89th, but that section has reference to the pledge of property made in contemplation of insolvency by way of security for 'payment to any creditor, or to the giving of property by way of payment to any creditor whereby such creditor will obtain an unjust preference, etc. Now, without determining whether Hutchinson gave the confession in contemplation of insolvency or not, it was not given to secure a debt due at the time to Ryerson, Moses & Co. or by way of payment of a debt due to them, and if he had been indebted to them or they were liable as indorsers of his paper the judgment according to the testimony of himself and Samuel M. Ryerson, the only mem- ber of the firm who was cognizant of the transaction, was only to have a prospective operation and be a security for liabilities which the firm should thereafter incur on his behalf. It is true that Eakins says that Ryerson told him he would indorse for Hutchinson if he would give security for liabilities already incurred and for future liabilities, but it is not alleged that this was communicated to Hutchinson, and both he and Ryerson assert that the security was given to cover liabilities subsequently to be incurred. The whole tenor of the evidence goes to show that the object Hutchinson had in view was obtaining future accommodation and this was the EQUITY. 491 substantial inducement for him to give the confession. The section I have reference to could only have been applied, if, assuming the judgment to have been given in contemplation of insolvency, it had been given to secure a pre-existing debt or liability, and Ryerson, Moses & Co. stand in no worse position than they would if, instead of undertaking to incur liability by indorsing the bills and notes of Hutchinson, they had agreed, as a consideration for giving the judgment to advance money to him from time to time thereafter and had subsequently made the advances in good faith on their part to enable him to carry on his business. BROWN v. PEARMAN. Plaintiff, as creditors' assignee, sought to set aside » judgment given by confession by two alleged co-partners, as made in contemplation of insolvency. Defendant denied that plaintiff was assignee, and it appeared that at the meeting of creditors there was only one person who had filed a claim, and his claim was with- out a voucher, yet, instead of abandoning the meeting as a failure and calling another, giving due notice, the meeting adjourned to another day, on which the plaintiff was appointed assignee. Held, that the appointment was invalid, that the proceedings could be impugned without going into the Insolvency Court, and that the defendant's denial that plaintiff was assignee as alleged obliged him to prove it,* Beulair v. Gilliolt, (referred to in 1 B. & C. 264,) questioned. Ritchie, E. J., delivered the judgment of the Court :— The object of this suit is to set aside a judgment entered by the defendant against Wm. A. and Joshua Reed, insolvents, as having been obtained in violation of the provisions of the Insolvent Act of 1875. The insolvent, Joshua Reed, on the 10th December, 1878, gave to the defendant a warrant of confession for $1400 on which judgment was entered for $1109.69 debt and costs, which was recorded on the following day and became a lien on certain real estate belonging to him in the County of Kings ; and at the same time William A. Reed, the other insolvent, gave him a warrant of confession on which judgment was entered for $1109.75 and recorded * There was also a question whether a partnership existed, the decision of which turned on the evidence. 492 BROWN v. PEARMAN. so as to become a lien on certain property owned by him in the same county. On the day on which these judgments were recorded, viz., the 11th December, 1878, a writ of attachment under the Insolvent Act was issued against both the Reeds and recorded the same day. The plaintiff alleges in his writ that on the 1st February, 1879, he was duly appointed assignee at a meeting of the creditors of the insolvents, and that the warrants of confession were given by the insolvents in contemplation of insolvency and were so given voluntarily and gratuitously with the in- tention of defrauding other creditors, and that this was done with the knowledge of the defendant who knew that they Avere insolvent and had probable cause for believing such to be the case. The defendant in his answer alleges that Joshua and William A. Reed were never partners in business, and that the former was not a trader within the meaning of the Insolvent Act and was not liable to have his estate placed in liquidation, and that so far as his estate is concerned the pro- ceedings in the insolvent court' are inoperative; that the plaintiff was never duly appointed assignee under the Insol- vent Act. And, as regards Joshua Reed, he contends that his judgment is valid and binding and forms a legal lien on his land in Kings County, but as regards William A. Reed, as he believes he was a trader liable to the provisions of the Insol- vent Act, he is willing to release his judgment for the general benefit of his creditors. Unless Joshua Reed were a partner in the business carried on by William A. Reed there is no pretence for making him liable as a trader under the terms of the Insolvent Act. The plaintiff in his writ does not assert that the insolvents were partners and up to the time of the issuing of the attachment and while the business was being carried on he had no reason to suppose that any partnership existed between them unless from the fact that Joshua, the father of William A. Reed, was occasionally at the brickyard where the business was carried on, took an interest in what was going on, and occasionally gave instructions to the men employed, and in one or two instances gave assistance. Brown, the plaintiff, says that he EQUITY. 493 had a conversation with Joshua just before the attachment was taken out when he said to him, referring to the brick- making business, " you know that you expected to share in the profits of that concern ;" he said he could not deny it that he expected to share in the profits and expected to make money. But though these parties both owed the plaintiff he never saw any note or paper or other document signed by William A. and Joshua Reed and never heard of the name of the firm till after the insolvency. That Joshua was interested in the brick-making business is clear ; he was so as the father of William in whose name it was carried on. He was also as assisting him by endorsing his paper to enable him to carry it on, and he was also interested as the lessor of the brick-yard, under the lease of which he was to receive a sum for every thousand of brick he manu- factured there. This accounts in my opinion for all the interest he took in what was going on there, and after the most care- ful consideration I cannot infer from the evidence that any partnership ever existed between the two. There is another objection taken by the defendant that, even if the partnership had been established, the plaintiff was not in a position to institute this suit inasmuch as he had never been legally appointed assignee. A meeting of the creditors was called for the 27th Jan'y., 1879. From the minutes of that meeting, signed by the plaintiff as chairman and Edward J. Cogswell the official assignee, acting as secretary, the only person present who had filed a claim was Trad Benjamin and his claim was without a voucher so that neither the chairman nor any other person was qualified to take part in the proceedings ; but instead of considering the meeting a failure and calling another by giving the notices required by the Insolvent Act, a motion was made and carried to adjourn that meeting till the follow- ing Saturday, February 1st, when the plaintiff was elected creditors' assignee. It is clear that this meeting was not constituted under the terms of the Insolvent Act, but it is contended on behalf of the plaintiff that the validity of the meeting and its proceedings cannot be called in question in this court and could only be impugned in the Insolvent 494 BROWN v. PEARMAN. Court, or by appeal, and the case of Beulair v. Giiliott* decided on the common law side of the court was cited, which certainly would seem somewhat to sustain that contention- There, however, what was in controversy was the validity of the discharge of the insolvent, a subject specially within the jurisdiction of the Insolvent Court, though the court went a long way in holding that it could not be shewn that it had no juris- diction on account of the party not having been a trader. Here the action is brought by the plaintiff against a defendant, no party to the insolvency proceedings, to set aside a judgment entered against the alleged insolvent. Had no creditors' assignee been appointed the official assignee could have done so, but a creditors' assignee must, where his appointment is denied, shew that he has been duly appointed. This is estab- lished by both English and Canadian cases. In Butler v. Hobson, 4 Bing., N. C. 290, which was trover by the assignee of a bankrupt it was held that a plea that he was not assignee put in issue that fact and required the plaintiff to show that he was regularly appointed So in Buckton v. Frost, 5 A. & E., 844 ; also trover by assignee of a bankrupt, a plea denying that they were such. In Grove v. McArdle, 33 U. C. Q. B. 252, the same view is taken and the very terms of the Act indicate the same, for the 144th section declares that the authenticated copy of the record of the appointment of the assignee shall be but prima facie evidence of the appointment and of the regularity of the proceedings. The plaintiff in this case has given evidence of his appoint- ment, but from that evidence it is manifest that the appoint- ment took place at a meeting called without the notice required by the Insolvent Act, and is, therefore, invalid. * This case is referred to by McDonald, J., in GodHn v. Bosch, 1 R. & C, 264. EQUITY. 495 BIGELOW et al. v. RAND et al. A vessel was built and registered, — twenty shares iu the name of E. V. Crandall, a plaintiff, twenty in the name of H. T. Crandall, a defendant, twelve in the joint names of E. Bigelow, Sons & Co., plaintiffs. The outfits were purchased by E. Bigelow, Sons & Co., and E. V. and H. V. Crandall, composing the firm of Crandall Bros., under an alleged agreement that they should be paid for out of the first earnings, before any division was made among the owners. The shares of Crandall Bros, were afterwards transferred to J. E. & E. Rand, who claimed a right to divide the earnings before paying for the outfits. The evidence was contradictory, both as to the original agreement and as to the knowledge of it on the part of the Bands, but the Court drew from the evidence the inference that there was such an agreement, and that the Bands were aware of it, and decreed an accounting as prayed for. Ritchie, E. J., delivered the judgment of the Court : — A vessel called the Canning was built in or about the year 1874, and was registered, twenty shares in the name of the plaintiff, Ebenezer V. Crandall, twelve shares in the joint names of the plaintiffs, members of the firm of E. Bigelow, Sons & Co., twelve shares in the name of Thomas E. Kenny, and twenty shares in the name of the defendant, Henry V. Crandall. Soon after Thomas E. Kenny transferred his shares to E. Bigelow, Sons & Co. The outfits of the vessel were purchased by the plaintiffs, E. Bigelow, Sons & Co. and Crandall Brothers, of which latter firm the two Crandalls were the members, from the firm of T. & E. Kenny. These amounted to $13,000, for which they gave promissory notes. Subsequently the plaintiff, Alonzo Michner, purchased from Ebenezer V. Crandall two shares of the vessel, and from Henry V. Crandall two shares, and was appointed master of her. Henry V. Crandall was appointed managing owner and ship's husband. On the part of the plaintiffs it is asserted that an agreement was entered into by and between these owners that the whole of the earnings of the vessel should be applied in the first instance to the payment of her outfits, for which some of them had made themselves liable, and that no part should be divided till they were actually paid for. That any such agreement was entered into is denied on the part of the defendants. 496 BIGELOW et al. v. RAND et al. The plaintiffs allege that the firm of Orandall Brothers became indebted to the firm of J. E. & E. Rand, of which the defendants, Rands, were the members, in the sum of $3,100, and in order to secure the payment of the amount, Ebenezer V. Crandall conveyed his remaining eighteen shares to James E. Rand, and Henry V. Crandall conveyed his eighteen shares to Ebenezer Rand, the thirty-six shares to be held in trust until the earnings of the vessel should, in the first place, pay off the balance due T. & E. Kenny for her outfits, which then amounted to $7,600, and in the next place should pay the indebtedness of Crandall Brothers to J. E. & E. Rand, and that until then the earnings of the vessel should be applied to no other purpose. The defendants, Rands, deny that they knew of the indebtedness to T. & E. Kenny, for outfits, until after the thirty- six shares had been transferred to them,, and say they knew nothing of the alleged agreement between the original owners till they saw the statement to that effect in the plaintiffs' writ. They allege that the firm of J. E. & E. Rand had endorsed notes for Crandall Brothers, which were outstanding when the transfers were made, and that Ebenezer Crandall, for the purpose of securing the firm of J. & E. Rand, by bill of sale dated 7th December, 1874, transferred to James E. Rand his eighteen shares, in trust to secure them, and for no other purpose, and that Henry V. Crandall, on or about the 9th September, 1875, by bill of sale, transferred his eighteen shares to Ebenezer Rand, to secure to him the payment of a debt due to him personally from Henry V. Crandall, and upon no other trust, and that about the end of the year 1876 Henry V. Crandall, finding himself unable to pay the debt, requested him to accept the shares absolutely, which he agreed to do. This was a verbal arrangement. The defendant, Henry V. Crandall, has not appeared or answered. He has, however, been tendered by the defendants, Rands, as a witness. On all the essential points of the case the only witnesses examined are parties to the suit, and I regret to say that upon all these points there is a direct conflict between the evidence of the plaintiffs and that of the defendants, and on this account the case requires the most careful consideration. EQUITY. 497 That such an agreement as I have referred to was entered into by the original owners of the vessel is proved by Ebenezer Bigelow, John E. Bigelow, and Ebenezer Crandall ; and Michner says that when he purchased his shares from the Crandalls, he did so subject to that agreement. The only evidence at variance with it is that of Henry V. Crandall, and his evidence, at variance as it is with his utterances and conduct, is not entitled to much consideration. In his direct evidence he says ; " There was not any positive agreement made with my consent that the earnings of the Canning should go first to pay for her outfits." In his cross-examination he is more guarded. He then says ; " I do not think there was any agreement to that effect." But in a letter from Crandall Brothers to E. Bigelow, Sons & Co., under date 31st January, 1874, in the handwriting of this Henry V. Crandall, they say ; " We would like the outfits procured on as long time as can be reasonably had, and insured down there, for one year at least, on our proportion, and then if we want to pay cash we can do so, and take any advantages of discount, so that we can have a choice. Sometimes it is best for a vessel to pay her own outfits in this way." On the 4th March of the same year E. Bigelow, Sons & Co. wrote to Crandall Brothers ; " We have been some time answering yours of the 13th January, on account of an arrangement for outfits for the barquentine with parties in Halifax by the name of T. & E. Kenny, who take an interest of three-sixteenths, and agree to furnish the outfits at cash first cost, including expenses from England in a vessel direct, &c, &c, for which we have agreed to allow them five per cent, on their money so advanced when they shall have received their money from the first earnings of the vessel. This agreement fulfilled must certainly lessen the cost of outfits very much, instead of getting them from parties in St. John or in Halifax, who expect their pay from the first earnings of the vessel on the back of their profits." To this letter Crandall Brothers, on the 27th of the same month, reply ; " Yours of the 21st is to hand, and contents noted. The arrangement that you have made about the outfits we think a. very good one and satisfactory ; the firm of T. & E. Kenny is a very good house, and it will be our policy 498 BIGELOW et al. v. RAND et al. to keep the vessel free of all encumbrances. It will be our object to first apply all the vessel's earnings to pay for her outfits. This is always understood when outfits are procured on time, and also to be insured for the parties furnishing." This letter also is in the handwriting of Henry V. Crandall. And in August, 1876, after the tranfers had been made to the Rands, Henry V. Crandall, who had been appointed to act as agent in the management of the vessel, in writing to the master, says ; " Crandall Brothers used about $8,000 of the Cannings money which should have gone to pay her outfits." And again in the same letter ; " All the money that you remit to Messrs. Rand will go to pay outfits and insurance, which will be due soon. The firm of Crandall Brothers is dissolved." On the 19th September following he writes ; " I stated before all the money that you remit them, (the Rands,) goes to pay insurance and note due on outfits next month." And on the 30th October he writes ; " Want you to send every dollar you can to J. E. & E. Rand to pay note on outfits due November 4th, $3,745, and insurance note in Halifax, $1,201, part due October 28." This language of Henry V. Crandall,so consistent with the testimony of the Bigelows, his brother, Ebenezer V. Crandall, and Michner, and so inconsistent with his denial of the agreement, leads me to put full confidence in the evidence of the existence of such an agreement. In order to shew how little the evidence of Henry V. Crandall could be relied on, the plaintiffs produced an affidavit made by him in this cause on the 26th February, 1878, in which is this passage ; " I say it is not true, as stated in the plaintiffs' bill herein, that the firm of E. Bigelow, Sons & Co. and the said plaintiff, Crandall, and the said defendant, Crandall, purchased the outfits for said ship or vessel, the Canning, from the firm of T. & E. Kenny ; that I had nothing to do with the purchase of said outfits, which were purchased, I believe, solely by said firm of E. Bigelow, Sons & Co. ; that no agreement was at any time made by and between all the owners of said vessel that the whole of her earnings should be appropriated in the first instance to the payment of her outfits; and that no part of their earnings or income should be divided until said outfits were wholly paid for, as alleged in said bill EQUITY. 499 that if any such agreement was ever made, I had no notice or knowledge thereof, nor was the same made with my consent." One cannot, under the circumstances, but feel surprised that such a statement should have been made under oath, especially when we find, among the vouchers in evidence, a promissory note dated the 31st December, 1874, to the firm of T. & E. Kenny, for $3,300, "for outfits of Canning," signed by E. Bigelow, Sons & Co. and Crandall Brothers, the latter signature in the handwriting of Henry V. Crandall. This was one of the original notes given. The four notes then given all were dated 31st December, 1874, and were all signed in the same way, as testified to by Ebenezer Bigelow, and his statement on this point is not denied. It still remains to be seen whether this agreement relative to the payments of the outfits was known to the defendants, Rands, when they took the transfers or was recognized or adopted by them. In this respect also the evidence is contra- dictory. Ebenezer V. Crandall says that he came to Nova Scotia in 1874 relative to the building of the vessel, when the agreement was first talked over as to the mode of payment for the outfits, that he then saw and conversed with the Bands on the subject. He told James E. Rand, the father-in- law of Henry V. Crandall, the circumstances under which the outfits were to be purchased ; that they were bought at eighteen months from T. & E. Kenny, and were to be paid for in the usual way by the first earnings of the vessel ; that he had also a conversation with Ebenezer Rand to the same effect. Though all knowledge of this agreement is denied by the Rands and Henry V. Crandall, it is clear from the letter of the latter to the master, a year after the transfers had been made, that an arrangement to that effect then existed, which the Rands recognized and were carrying out, Henrj* V. Crandall then acting as agent and ship's husband, under the appointment of the Rands, as holding a majority interest in the vessel, and that the Rands themselves were* cognizant of this, for in February, 1877, we find the signatures, " J. E. & E. Rand," and " H. V. Crandall, Agent," to the following note ; " Capt. A, Michner, — Sir, — You will please remit all your freight, after deducting disbursements, to Messrs. E. Bigelow, 500 BIGELOW et al v. BAND et al. Sons & Co., or to their order, the same to apply to outfits and bills against the Canning until said outfits are paid up and you receive further notice." And on the 11th May of the same year we find the signature of the firm of J. E. & E. Rand in conjunction with that of E. Bigelow, Sons & Co. to a note for $2,000 in favor of T. & E. Kenny, on the face of which is " Barlct. Canning." Before this note was shown to him, J. E. Band, who had signed the name of the firm to it, had said that he had endorsed notes for the accommodation of the Bigelows, but he did not know that they were used in connection with the vessel. He would not at first admit the signature to be his, or rather refused to say whether he had signed it or not. The signature, he said, resembled his ; it might possibly be his ; he had no recollection of having given such a note ; did not keep an account of all the notes he signed for the Bigelows ; if the signature is his, he does not think it is one of the accommodation notes that he had referred to. It is not disputed but that the shares of the Crandalls in the vessel, though conveyed to them in severalty, were part- nership property, and, this being the case, Henry V. Crandall had no right to convey the eighteen shares held by him, being assets of the firm, to his father-in-law, J. E. Band, to pay a debt due by himself, nor do I think, in view of the whole evidence on the subject, that he did so. It is evident that these parties were on the most confidential terms. James E. Band says he did not keep books himself, but is willing to be bound by the entries of Henry V. Crandall in his books ; and, on turning to his entries in the books of Crandall Brothers, we find in the journal C, this entry, June, 1876 ; " J. & E. Band, Dr. to cost account barqt. Canning for thirty-six sixty-fourth shares of said vessel, sold them Sept. 9th, 1875, and"other debts, for $9,463.63." In ledger A., page 58, is the cost account of the Canning, and at the close of it the following entries were made by Henry Crandall ; " 1875. Sept. 9. By J. E. & E. Rand, for thirty-six sixty-fourth shares, sold them for $9,463.61, and other debts." And on page 432 is the entry of the Bands' account with Crandall Brothers, thus : — EQUITY. 501 J. E. & E. Rand, Dr. 1876. May 31. To Capt. Michner $ 336 51 June 30. To cost account barqt. Canning 9463 61 $9830 12 Or. 1876. March 31. By cash $3220 50 June 30. H. V. Crandall 757 40 Vaughan Bros 5713 63 Barqt. Canning 130 53 $9830 12 From these books we find the Crandall Brothers, as a firm, treating their interest in the vessel as partnership property, and dealing with it as such, and transferring it to the Bands as 'property of the firm of J. E. da E. Rand. In his evidence, H. V. Crandall says he " made the above entries in the spring of 1876 ; cannot say whether before or after 6th June ; the credit of March 31, 1876, $3,220.50, represented the endorse- ments that Rand had to take up ; the same entry on page 341 of the journal was made in June ; the debit entry of May 31, 1876, $366.51, represents the balance of Captain Mitchner's shares in the vessel, which we paid Rands ; the next debt, 30th June, 1876, cost account, $9463.61, represents the cost account of the thirty-six shares of the Canning ; it is entered in page 350 of the journal, and was made in June, 1876.' These entries are utterly at variance with the account given of the transaction by the defendants, and though Henry V. Crandall had every opportunity to explain these entries he fails to give any account of them consistent with the evidence he had given. That the bill of sale to James E. Rand was an invalid instrument at the time it was recorded cannot, I think, be questioned. There is said to have been the signature of Ebenezer V. Crandall to the paper, but Henry V. Crandall made it a bill of sale by filling up the blanks, and either he or Ebenezer Rand, being aware that it required to be executed in 502 BIGELOW et al. v. RAND ET At. the presence of a subscribing witness, the latter was induced to put his name to the paper, though he admits he never saw it executed. Henry V. Crandall says he did this in consequence of a telegram and letter he received from his brother. The telegram was on the 6th September, 1875, to this effect : — " Sent bill of sale Saturday. Act quick. Impossible to go further. Two Howards gone back, Don't ship plaster. No sale. Crandall Bros." He says the letter enclosed the blank bill of sale, and requested him to fill it up and give it to J. E. Rand. This letter, unfortunately, is not forthcoming, but it is obvious that when Ebenezer Crandall heard from his brother what had been done, he did not consider his instructions had been complied with. Henry V. Crandall, on the same day that he filled up the bill of sale from Ebenezer V. Crandall to James E. Rand, made the bill of sale from himself to Ebenezer Rand, and both were registered on the same day and hour, and Henry V. Crandall says he gave his bill of sale in consequence of the telegram and letter, as then he first became aware that they Could not go on in business. It is somewhat remarkable that Ebenezer Rand should in his evidence assert that when he sent his bill of sale to be registered, with a declaration of ownership, he did not send his brother's, and did not know whether his brother had got his bill of sale or not at that time, and yet they were both executed the same day, the 9th September, 1875, and were both entered for registry at the same time, nine o'clock A. M. of the 10th September, he himself having put his name to his brother's as a witness in order that it might be registered. In December, 1876, the Rands, having reason to believe that Ebenezer V. Crandall intended to dispute the validity of the bill of sale to James E. Rand, Ebenezer Rand, at his request, met Ebenezer V. Crandall and Henry V. Crandall, at St. John, and a negotiation took place which resulted in an agreement on the part of Ebenezer V. Crandall to confirm the bill of sale on receiving from Ebenezer Rand a bond which was given, the condition of which was that Ebenezer Rand should re-convey to Ebenezer V. Crandall the eighteen shares when and after the ship should, after deducting all necessary disbursements, have EQUITY. 503 by her earnings paid off the two notes for $7,600, and when the thirty-six shares should have paid off the indebtedness of $3,100 ; the earnings of the ship would not be appropriated to any other purpose in the meantime. This arrangement must be considered that of all the parties interested, and yet a month after the Rands insisted on dividing the freight received instead of applying it or any part of it to the payment for the outfits. It was urged that the Bigelows had received, without objection or protest, their share of the earnings when offered to them. This they positively deny, and the two plaintiffs, who were present, assert in their evidence that they protested and remonstrated against the money being divided, claiming that it should be applied to the payment of the outfits ; and here again, as has been so often the case, there is corroborative evidence of the correctness of the plaintiffs' statements and none of those of the defendants. In James E. Rand's letter to Ebenezer Orandall, under date of August, 1877, he says ; " At the rate of the Canning's earnings for the past year, it will take all of her earnings for ten years to pay those bills, referring to the outfits, &c, with interest and premiums of insurance. The Messrs. Bigelow were not satisfied with their proportion of the balance my brother received of the charter up the Mediterranean, but wanted the whole of it!' Now there is no pretence that the Bigelows ever claimed the whole, or ever made any claim whatever for the whole or any part of the earnings of the vessel for their own use. When they claimed the whole of the freight which had been received by Ebenezer Rand, it was that the whole should go towards payment of the outfits, as they stated in their evidence. After having given the most careful consideration to the whole evidence, replete as it is with contradictory statements, and taken into account the conduct of the parties, both before and after the transfers to the defendants, Rands, and the documents produced, I can draw no other inference from them than that the Canning was partnership property of Crandall Brothers, and that the transfer of her was made by the members of the firm to the members of the firm of J. E. & E. Rand, to secure that firm for liabilities incurred for them at a time when their insolvency was anticipated or 504 KNOWLA.N v. DUNN et al. feared, and that the Messrs. Rand were aware of and recognized the agreement which originally existed that the liability incurred for the outfits of the vessel should be paid out of her first earnings, and took subject to the agreement. I have avoided expressing any opinion on the accounts. They will be for future consideration, and in case additional evidence is offered, it can be heard by the Court, or there can be a reference to a Master. The plaintiffs, in their bill, ask that an account may be taken of all dealings and transactions between the parties touching the vessel, and the defendants, Rands, in their several answers also pray that an account may be taken, and they also pray that the shares in the vessel registered in their respective names may be sold, and the- proceeds appropriated to the payment of the liabilities on them in their regular order. In taking the account reference will be had to the suits at common law brought by James E. and Ebenezer Rand against Bigelow and others, which, by an order of that Court, have been transferred to this Court, and the subject matter of them brought into the accounting. KNOLAN v. DUNN et al. Plaintiff, being indebted to several persons, conveyed property to his son, under an agreement that the son should liquidate the debts, and the plaintiff should have six years to pay him such amounts as he should advance, plaintiff to remain in possession in the meantime ; and if he failed to re-pay the amounts, the land should become absolutely the property of the son, who, contemporaneously with the execution of the deed, delivered a bond conditioned for the fulfilment of the agreement. The son afterwards conveyed the property to Dunn, who was aware of the terms of the agreement. Held, that the transaction was in effect a. mortgage, and that Dunn could not claim to hold the land as security for an alleged claim against the plaintiff which he had discharged, and which was not mentioned in the original agreement, but should re-convey the land on payment of the amount due on the agreement between plaintiff and his son, less any income derived by Dunn from the land. Ritchie, E. J, delivered the judgment of the Court : — The plaintiff, in his writ, sets out that, being indebted to several persons, he agreed with his son, the defendant, John E. Knolan, that if he would assume the payment of these debts, he would convey to him the land described in the writ, EQUITY. 505 on the special agreement that he should have six years to re-pay to him such sums of money as he should expend in paying such debts, and that he, the plaintiff, should remain in possession of such land during that period, and if he failed in re-payment during the period the land should become the property of the son ; and that in accordance with that agree- ment, he executed and delivered to him a deed of the land ; that though the deed was absolute in its terms, it was to operate only as a mortgage, and that, contemporaneously with the execution of the deed by the plaintiff, John E. Knolan executed and delivered to the plaintiff a bond binding himself to fulfil the terms of the agreement. The bill also sets out that the other defendant, Daniel Dunn, was well aware of the agreement at the time it was entered into, and was a subscribing witness to the deed, yet he has taken an absolute deed of the land from his co-defendant, and, though the plaintiff was then in possession, and John E. Knolan had failed in the payment of the debts of the plaintiff, which he under- took to pay, the defendant, Dunn, during the temporary absence of the plaintiff, fraudulently entered upon the land and took possession, and has since withheld from him the possession of it ; and he prays that Dunn may be decreed to convey the land to him on his paying all that may be due by him on the agreement entered into with his son, John E. Knolan, and that an account may be taken of the profits of the land received by Dunn since he entered into possession of it. Dunn alone has appeared and made defence. In his answer he admits in effect the agreement set out in the plaintiff's writ, and his knowledge of it ; he specifies the debts which John E. Knolan agreed to pay for his father, amounting together to $220, and that John E. Knolan agreed with the plaintiff that if the latter should re-pay him that sum within six years, together with interest, yearly, he would then re-convey the land to the plaintiff, otherwise he should be released from the ageeement. In his evidence he values the land at $400. He states that the deed to John E. Knolan was executed in his store and that he was a subscribing witness to it, that it was given to him to be recorded, and that he was also witness to the bond which was given at the same 10 w 506 KNOLAN v. DUNN et al. time, and that he then understood from the conversation between the parties, and it was in the bond, that the plaintiff was to have six years to pay the principal, $220, and the annual interest, as it grew due thereon. And further on in his evidence he says ; " In addition to what I have stated about the bond, the land was to become John's if plaintiff did not pay the principal at the end of ten years and the annual interest as it grew due thereon ;" that on the 18th August, 1877, he purchased the land from John E. Knolan, and paid him, and took a receipt, which is produced, and is in the following terms : — "Kennetcook, the 18th August, 1877. " Received in full of all dues, debis, and demands up to this date from Daniel Dunn, Senr., but twenty dollars, which he agrees to pay to my mother, in goods out of his store, whenever she calls upon him for the same. John Knolan. " Signed in presence of W. J. Dunn." At this time one of the debts which John E. Knolan had agreed to pay, that of Patterson, who held a mortgage on the land, was unpaid, though a release of the mortgage had been obtained. He had previously said that on the execution of the deed by the plaintiff to his son, the release of Cochran's judgment and that of Patterson's mortgage was handed to him to be recorded. Now, at that time, Cochran had given no release, nor did he execute any till several months after, and while the deed was registered in February, 1876, Cochran's release was not recorded till the following June. Notes were given by John E. Knolan for these debts, and when the note to Patterson became due he was arrested under a capias, and his father having become bail for him, and he having absconded, the latter was compelled to pay the debt by giving him a pair of oxen valued at $80. John E. Knolan gave to Cochran a joint note of himself and one McLean for the amount of his debt, and about a year after, Knolan, not being able to pay it, plaintiff gave his son a pair of cattle to pay it, and $14 he owed his son. The value of the cattle was $60. With reference to the conveyance of the plaintiff to his son, and the agreement on which it was given, I have confined EQUITY. 507 myself to the evidence of the defendant, Dunn, as that which is the least favorable to the plaintiff, whose case is established satisfactorily by that of this defendant. The contention on the part of Dunn is that the conveyance to John E. Knolan vested the land in him absolutely, and that all the right his father had was the privilege of re-purchasing it at the expiration of six years, on his paying the money which had been advanced for him, and the interest annually in the meantime. If this were the effect of the agreement entered into between the parties, and the plaintiff had failed to fulfil the terms of it, the Court could give him no redress, but I cannot see that he has failed in any respect. The term limited for the re-payment of the principal has not yet expired, and the payments he has made on account of his son have far exceeded the interest which has accrued on it. I cannot, however, view the deed and agreement as operating otherwise than as a mortgage. All the circumstances connected with the transaction, it appears to me, go to shew that the convey- ance was intended merely as a security, and are inconsistent with the idea of its being intended to operate as an absolute conveyance. The plaintiff remained in possession after the conveyance as before, John E. Knolan never pretending to have a right to it, and according to Dunn's estimate, the amount agreed to be advanced to John E. Knolan was little more than half the value of the land. What Dunn gave on his obtaining a deed of it his own evidence leaves in doubt. The question involved is, did the parties contemplate a sale and purchase of the land with the right of the plaintiff to re-purchase, or was the deed given merely as a security for the re-payment of money ? And Dunn, in his evidence, clearly indicates that they looked upon the transaction as a security for a sum of money advanced, or to be advanced. His language is ; " John E. Knolan agreed to pay for his father debts amounting to $220, and if the latter should re-pay him that sum with yearly interest within six years, he would re-convey the land, otherwise not." And again ; " The plaintiff was to have six years to pay the principal and the annual interest as it grew due ;" and " the land was to become John's if the plaintiff did not pay the principal at the end of six years, 508 KNOLAN v. DUNN et al. and the annual interest." Now, it is a recognized principle that where two instruments are made and delivered at the same time by the parties relating to the same matter, they will be regarded as parts of one instrument and be construed together, and in that view the usual proviso contained in a mortgage expresses the terms of the agreement in this case ; " Provided, nevertheless, that if the plaintiff shall pay to John E. Knolan $220, with interest, in six years, the deed to be void." It was contended that there was no undertaking on the part of the plaintiff to re-pay the money to John E- Knolan, and that in the absence of such an undertaking the conveyance to the latter could not be held to be a mortgage. This circumstance, no doubt, is an important element in the consideration of the question, yet it does not follow that it is essential to constitute it a mortgage that there should be such an undertaking if the evidence satisfies the Court that the parties only intended a mortgage security. There must, indeed, be the evidence of the existence of a debt between the grantor and grantee. Here the language used by all the witnesses refers to the existence of a debt between them. They speak of principal to be re-paid, and interest till so re-paid, and Dunn says it was distinctly agreed that the interestshouldbepaidannually. And though the non-existence of an obligation to re-pay the money in many of the English cases is a circumstance much dwelt upon by the Court, as leading to the inference that the conveyance was not intended to operate as a mortgage, it is by no means conclusive. Goodman v. Grierson, 2 Ball & R, 274 ; King v. King, 3 P. Wm„ 358 ; Floyer v. Lavington, 1 P. Wm, 268 ; Eaton v. Graves, 1 Ven., 138. The case of Murphy v. Colley, 1 Allen, 107, is almost identical with this, except that there there was no special reference to re-payment of principal and interest as such. That was a suit to redeem mortgaged premises. An absolute deed was taken, and an agreement from the grantee binding himself to re-convey the premises to the grantor whenever within five years, he should re-pay $1,000 to him, and if he should not do so the agreement to be void and the deed to be absolute. The Chief Justice, in giving the judgment of the EQUITY. 509 Court, said; "The terms of the agreement clearly indicate that the parties only intended to create a mortgage interest. It was urged by the counsel that there was no collateral undertaking to pay the money, but this is by no means conclusive of the nature of the transaction ; it is only one circumstance to be regarded, but it cannot operate with any force where, as in the present case, the intent of the parties to make a mortgage is clear." Whether, therefore, the deed given by the plaintiff to his son, in the case before us, be considered as a mortgage or as an absolute sale and conveyance, with a collateral agreement for a re-purchase on the payment of the amount advanced for him by the latter, he is now entitled to a re-conveyance on his paying such amount. Dunn, in his answer, states his willingness to give such re-conveyance upon payment to him of $220, and interest thereon since the date of the release of the mortgage of Patterson and the judgment of Cochran, and a further sum of $192.35, and interest thereon since September, 1877, which last-mentioned sum was, as he alleged, due on a judgment of Thomas C. Haliburton against the plaintiff, and formed a lien on the property, which he had paid. There was, in fact, no such judgment, or none of any validity. A docket was produced signed by the Prothonotary, bearing date the 13th June, 18(54, for $92.45 debt, and $15.60 costs, of which a certificate was recorded on the 16th June of the same year, but there is no record of any such judgment, nor can any record ever be made of it, nor anything be now done to give it validity, as no writ was ever taken out in the case, nor any bill of costs taxed ; no execution was ever issued, nor any attempt ever made to enforce it, and the plaintiff is now dead. Dunn alleges that he made some settlement with Mr. Blanchard, who had been Mr. Haliburton's attorney. What that settle- ment was Dunn is unwilling to tell. He must have known, and if he had not recollected, Mr. Blanchard, who is now his attorney, could have informed him if he had desired to tell. The receipt given by Mr. Blanchard would lead to the inference, and Dunn intended that the inference should be drawn, that $192.30 was paid, that is $108.05, and thirteen years' interest, (six years' only could be claimed,) $84.28 ; and this sum of 510 KNOLAN v. DUNN et al. $192.30, with interest from the day of the alleged settlement, is what he claims in his answer he is entitled to in addition to the $220. In his answer Dunn says he settled and paid this judgment. In his evidence,, after much prevarication, he admits that he paid less than $90. This judgment, or what purports to be a judgment, has not been assigned, but Mr. Blanchard has undertaken to procure for Dunn an assignment if possible. Mr. Blanchard does not appear to have possessed the least authority to receive money on account, or to make any settlement of it. Dunn says he was authorized by the plaintiff to make the settlement. I give credit to the state- ment of the plaintiff that he never requested or authorized hfm to pay or settle it. If he had acted as the agent of the plaintiff all he could have asked to be paid him would have been the $80 or thereabouts that he now says he paid Blanchard, instead of the $192.30 which he claims from him. The inference that I am led to is that he made the settlement and obtained the promise of an assignment; of the judgment to strengthen his elaim on the property, on which, from all I can gather, even from his own evidence, he had previously paid but $50, thirty to John E. Knolan, and twenty to his mother. At any rate, however, whatever his claim may be on the plaintiff in respect of the payment made to Mr. Blanchard, he has no right to insist on requiring that the plaintiff shall pay him as a condition of his getting a re-eonveyance of the property conveyed by him to his son, as it formed no element of the agreement entered into between them when the deed was given. The defendant, Dunn, will be decreed to re-convey the land to the plaintiff on payment by the latter of the amount due by him on the agreement entered into between him and his son, John E. Knolan, less any income and profits derived by Dunn from the property during the time he has been in possession of it, and that an account be taken of the amount so due by the plaintiff under the agreement, and of the income and profits so derived by Dunn from the possession of the land, as prayed for by the plaintiff in his writ. The question of costs is reserved. EQUITY. 511 METZLER v. SPENCEK et al. Plaintiff, as administrator, complained in his writ that defendant wrongfully caused a vessel to be condemned and sold, and received the proceeds, and appro- priated them to his own use, refusing to account to him therefor. The bill was dismissed with costs, as to two of the defendants, as there was no evidence of their .having received anything. As to another defendant, the Master reported that he had received upwards of $400, but that he bad disbursed a greater amount. Exceptions were taken by plaintiff to this report, which the Court held to be sustained by the evidence, and the decree was for plaintiff, with costs. Ritchie, E. J., delivered the judgment of the Court : — The defendants in this suit are Samuel Spencer, George McLellan, James Loughead, William Watt, and Robert Hunter, who, with Edwin Metzler, deceased, were owners of a vessel called the W. A. Bluck, Spencer being the owner of sixteen sixty-fourth shares, McLellan of twenty-four sixty- fourths, Loughead, Watt and Hunter each of four sixty- fourths, and Edwin Metzler of twelve sixty -fourth shares ; and the plaintiff sues as administrator of the last-named, who died in November, 1867. The plaintiff complains that the defendants wrongfully and contrary to equity and good faith caused the vessel to be condemned and sold in the port of St. Thomas, and received the proceeds, and converted them to their own use, and have refused to account to him therefor, and he prays that each of them may be ordered to account for the money so received by him. There is no foundation whatever for the allegation that the defendants had caused the vessel to be wrongfully condemned at St. Thomas. It was the act of the person acting as master, with which they had nothing whatever to do. The only defendants who have appeared and answered are Spencer, Loughead, and McLellan, and there is no evidence whatever that either of the two former has received any part of the money arising from the sale of the vessel or from the insurance that was on her, and it is admitted that the plaintiff can have no decree against them. As to them, therefore, the bill must be dismissed with costs. There was no reason that they should be made parties, assuming that the other defendants 512 METZLER v. SPENCER et al. had received money to which the plaintiff was entitled as administrator, and for which they were bound to account. It is in evidence that $394.35 were received by McLellan from the proceeds of the sale of the vessel, and that $80 were received by him from the insurance which was on her, and the Master has so reported ; but he has also reported that at the time of the sale of the vessel at St. Thomas, McLellan had made payments and disbursements on account of her to such an amount that nothing was coming to the plaintiff on account of Edwin Metzler's share. The plaintiff excepts to the report of the Master on the ground that, since the receipt of the $394.35, McLellan made no disbursements on account of the vessel out of it, and that his previous disbursements had been more than re-paid by his previous receipts. 2nd. That by his admission, and that of Spencer and Loughead, $100 at least was due him. 3rd. That, as Watt had been paid $100 as his share, the plaintiff was entitled to a proportionate share. 4th. Because McLellan has not been debited with the money received by him on account of the vessel. There is no evidence of any admission that $100 or any amount was due the plaintiff by McLellan. The plaintiff himself admits that. What is relied on is that Spencer, who it is admitted received none of the money arising from the sale of the vessel or her insurance, said he would give $100 to stop the suit. The offer was not accepted, and it was withdrawn. This offer, if it -had been made by McLellan, could only be considered an offer to buy his peace, and not as an acknow- ledgement of a debt, especially as he, at the very time, was repudiating all liability. A large part of the evidence taken before the Master was objected to, and is not receivable to affect the defendants who have appeared and answered, as, for instance, all that Watt told the witness, John W. Metzler, and the plaintiff ; also the whole of the evidence of Dimock. This evidence must, there- fore, be eliminated from the case. As regards the payment to Watt, it was not made by McLellan. He received the amount from Spencer, who says he received nothing from the vessel since 1865 ; that the $100 paid to Watt was paid out of his own pocket ; that, as Watt had purchased his shares in EQUITY. 513 the vessel from him, and as the insurance money had been expended to pay previous claims against her, Watt made a claim on her, and he paid him that sum in settlement; that the claim was not against the owners, only against him. The only money shewn to have been received by McLellan in respect of the last voyage of the vessel, or the proceeds of the sale of her, or from her insurance, for which alone this suit is brought, are the two sums of $394.35 and $80 referred to in the Master's report. The reception of the evidence of McLellan, as against the estate of Edwin Metzler, deceased, might have been open to objection, but as no objection was made, either before the Master or at the hearing, and he was cross-examined on the part of the plaintiff, if the evidence was open to objection it has been received. He allows that, instead of his owing anything to the other part-owners, they are indebted to him about $1,300. He was the first managing owner, then Spencer, and then he again became so. Watt says that he was master from 1864 to 1866, and while he sailed the vessel the earnings were all paid to Spencer. McLellan, when he first ceased to be managing owner and Spencer took charge, closed his account. The last item on the credit side is £74 or $296 cash from the insurance office. This would make the balance against him, but for the last entries on the debit side of last-paid dividends to the several owners, including himself, amounting to £79 19s. 4Jd. It is unaccountable that, at the time of his ceasing to have the management of the vessel, after which her earnings were to be paid to another, he should have divided among the owners upwards of $160 more than he had received, and never called on them to refund. The balance then due him was largely increased, he says, so that in 1867 or 1868 it amounted to about $1,300, for which, from that time to this, he has never presented an account to the other owners, Spencer, Loughead, Watt, and Hunter, nor required payment, nor ever pretended to have a claim against the estate of Metzler, till threatened with this suit years after. Though he has now produced an account, he has adduced no proof of the several items. The account itself is unsatisfactory, and when asked for explana- 514 METZLER v. SPENCER et al. tions, they are equally so. Some of his statements are inconsistent with others, and are vague and uncertain. He says the $296 received in 1864 was the last money he received on account of the vessel ; he has since made disbursements for the vessel ; he cannot tell how much ; the money he sent to Watt for the vessel's use in 1866, £125 3s. 9d., must have been sent out of insurance money, at least he believes so ; if he got the money it would be credited in his account ; he did not recollect whether he got the money or not ; it is a long time ago ; he knew he paid premium notes, but he would not swear that he paid them except from his books. Referring to a charge in his account of £100 paid to Black Bros., he says ; " I won't swear it was not $100 instead of £100 ; if £100 is marked in my book as paid, then I paid it ; I don't recollect the date at which I made the charge in my book ; I won't swear that Black Bros.' account, now shewn to me, is wrong ; I might have paid $100 on the 27th January, 1865 ; I won't swear that I did not receive, on 30th April, 1867, $60 from Black Bros. ; if I had received it I should likely enter it in my account ; if I marked the materials for sheathing the vessel in my book, I must have paid it somehow." Mr. Allison, the secretary of the Avon Insurance Company, says that on the 12th May, 1876, he paid MeLellan $500.75, the exact sum charged as remitted to Watt by MeLellan at that date, and Spencer, in his account, charges against the vessel in 1865 cash paid to MeLellan $200 to pay insurance premiums, and $220 retained by Sprague, Lowe & Co. on account of MeLellan. No credit is given by MeLellan nor explanation afforded, but in July of that year $205.30 is charged as paid to the insurance company. After the total loss of the vessel, Mr. Allison says that on the 24th March, 1868, among other payments on account of the insurance, he paid $80 to MeLellan. The evidence of MeLellan, so far from establishing his claim, is more calculated to throw discredit on his account. Giving every consideration to the evidence adduced before the Master, I think that it does not justify the conclusion he arrived at, that at the time of the sale of the vessel at St. Thomas, she was indebted for payments and disbursements to MeLellan, and therefore that he is accountable to the plaintiff EQUITY. 515 as administrator of Edwin Metzler for his proportion of the two sums received by him since her sale, viz., $394.35 and $80 against him. The plaintiff will be entitled to costs. HARVIE v. WYLDE et al. Dodge & Co. , being largely indebted to various creditors, and having notes lying overdue at the bank to the amount of $7,000, with others maturing, took from one McPherson four promissory notes, dated October 26th, 1870, for lumber sold to him, three of which notes, to the aggregate amount of about $4,800, they endorsed to defendants, to meet a note for $3,000, endorsed by defendants, dated July 26th, 1870. The notes so transferred were discounted, and the proceeds applied to the payment of the $3,000 note, leaving a balance of $835, which was retained by defendants, though nothing was then due them by Dodge & Co. , and was used to retire a note of Dodge & Co. that subsequently became due. One month after the $3,000 note became due. Dodge & Co., on November 29th, 187Q, made a voluntary assignment, their liabilities being upwards of $100,000. The jury were instructed that if, when the notes were transferred, Dodge & Co. had reason to believe and did believe that their affairs were in such a situation that insolvency would in all probability ensue, though there was a possibility of their tiding over their difficulties, the transfer would be in contravention of the statute, (the Insolvent Act of 1869,) and be deemed to be made in contemplation of insolvency, and was invalid if made to give the defendants a preference over other creditors. The jury found for the assignee. Held, that this instruction was correct, and that the statute was applicable, although defendants were not at the time creditors. Ritchie, E. J., delivered the judgment of the Court : — It appears from the evidence in this case that Dodge & Ca, having sold lumber to one Daniel McPherson, took from him four notes for the purchase money, dated the 26th October, 1870, payable in three months, for $1,500, $1,333.75, $1,333.75, and $1,167.50, and handed over the three last to defendants in order to meet a note for $3,000, which was made by Dodge & Co., and endorsed by the defendants, bearing date the 26th July, 1870, and had been discounted at the Union Bank, notice of its being about to fall due having been given by the bank. McPherson's notes were at once discounted, and with the proceeds the defendants retired the $3,000 note, and credited the balance of $835 to Dodge & Co., though nothing 516 HAEVIE v. WYLDE et al. was due from them to the defendants except some outstanding notes of theirs which the defendants had endorsed for them ; and when one of these outstanding notes subsequently fell due, in November, it was paid in part by the $835 and renewed for the balance. There can be no doubt that Dodge & Co. were hopelessly insolvent when these notes were transferred to the defendants. Black says that in August, 1870, a note of Dodge & Co. fell due at the -bank, and lay over dishonoured four weeks, and that about the middle of October another fell due and was dishonoured, for the amount of $4,000 or $5,000 ; and Dodge says notes of theirs were lying over unpaid at the bank, which they could not meet, a week before the notes were taken from McLellan, to the amount of $7,000, and that other notes of theirs were then maturing at the banks. "With these notes of theirs lying dishonoured at the banks, and with no funds to meet them, except what was derived from the sale to McPherson, made after they fell due, they apply no part of it in paying what was then actually due by them, and not only transfer the three notes referred to to the defendants, to take up a note endorsed by them not then due, but place in their hands, and deprive themselves of the use of $835, at a time when they had pressing need of it to pay their debts, which sum is held by the defendants till other notes endorsed by the defendants for them should come to maturity ; and just one month after the note for $3,000 became due, the 29th October, they made a voluntary assignment under the Insolvent Act, the 29th November, their liabilities being upwards of $100,000, and yet from the time of the transfer of these notes to the defendants to the time of their assignment, the only available funds to meet their liabilities consisted of the four notes they got from McPherson. The Courts in England have held, independently of any special enactment to that effect, that, if a trader assigned any part of his property, such assignment, though not fraudulent and void per se, was deemed so, if made in contemplation of bankruptcy, and with intent to give a creditor an undue advantage over others, on the ground that the policy of the Bankrupt Act was thereby contravened. Subsequently there EQUITY. -617 was a statutory provision to the effect that such an assignment constituted an act of bankruptcy, and under the English decisions all that was required to make such an act fraudulent and void was to shew that it was done in contemplation of bankruptcy, and voluntarily; so that if the 89th section had been omitted from the Insolvent Act of 1869, by the voluntarily depriving themselves of almost the whole of their then available funds of Dodge & Co. to provide for the payment of a debt not due, when notes were lying dishonoured to a large amount which they had no means of paying, in the light of these decisions we would be justified in coming to the conclusion that their transfer of the notes in question was void against their general creditors as directly in contravention of the policy of the act. Smith, in his work on Mercantile Law, p. 572, 8th edition, says ; " An assignment of part of a debtor's effects, even on account of a by-gone and before contracted debt, does not, like an assignment of the whole, carry with it any intrinsic evidence of fraud, since everybody must, in the course of business, have power to make over some parts of his property to creditors, but, though not fraudulent per se, yet if made in contemplation of bankruptcy, and with an intent to give the transferees an undue advantage over other creditors, it is fraudulent and void, and though not formerly so, is now an act of bankruptcy by the present Bankrupt Act ; and whether an act be or be not of this description, in other words, whether it be or be not a fraudulent preference, must be ascertained by considering whether the transfer, etc., were made in contem- plation of bankruptcy, and voluntarily." In Gibson v. Bontts, 3 Scott, 229, the Chief Justice says ; "Where a party is in so hopeless a state of insolvency that he cannot reasonably expect to avoid bankruptcy, though he chooses to fight off as long as possible, I cannot look upon a payment voluntarily made by him to a favored creditor in any other light than as a payment calculated and intended to defeat the bankrupt law." Two late cases were cited on the part of the defendants from the L. R, 10 Eq., 654, Ex parte Crane, and 12 Eq., 363, Ex parte Blackburn. These cases had reference to the 51S HARVIE <& WYLDE et al. construction of the 92nd section of the present English Bankrupt Act, which differs widely from the 89th section of our Insolvent Act. It renders void certain transfers made with a view of giving a creditor a preference over others, and says nothing about the act being done in contemplation of bankruptcy, whereas our act declares that the transfer shall be void if made in contemplation of insolvency, if thereby a creditor obtains or will obtain an unjust preference. Yet in the former of these cases, Bacon says, p. 657 ; " In my opinion, the statute now in force has in no respect, so far as affects the question before me, altered that law in bankruptcy which had been well established by a long series of decisions, and was well known before this statute came into operation. The fraudulent preference which is made void by the statute is the same fraudulent preference as was invalid before, for the same reason and under the same circumstances. The motive or view which may have actuated the debtor, wholly or partially, is not material, unless it has also induced him, without pressure or just request from his creditor, to give him a preference over other creditors." The only question there was whether the transfer was voluntary or not. The learned Judge, in alluding to the decisions anterior to the passing of the Bankrupt Act of 1869, refers specially to Marks v. Feldman, L. R, 5 Q. B., 275 ; 10 B. & S., 371, as the most recent case in which the principle is adverted to. That was before the Exchequer Chamber on appeal from the Queen's Bench, and Kelly, C. B., there said, p. 279 ; " If a man, at a time when he contemplates bank- ruptcy, delivers goods or money into the hands of a creditor whom he intends to benefit, that transaction is perfectly valid between the parties, but, if bankruptcy supervenes, and there is an adjudication against the transferor or donor, it is a fraudulent preference, and invalid as against the assignees, not under any express provision in the bankrupt laws, but as contrary to the spirit and principle of those laws ;" and Martin, B., p. 284, said ; " In my judgment, as far as I can see, whether the bankruptcy was obtained by a creditor hostilely, or on the bankrupt's own petition, the law of fraudulent preference remains the same. If the act is done in contem- EQUITY. 519 plation of Bankruptcy, it has the effect of defeating the law which says that creditors are entitled to all the bankrupt's property, and if a man attempts to defeat that right by voluntarily parting with his goods, in my opinion they are recoverable back ; and whether it is by an action of trover, or an action for money had and received, or any other action, is utterly immaterial ; the substance is that the goods or the value may be got back." In a previous part of his judgment, p. 283, he had referred to Lord Mansfield's decision in Alderson v. Temple, 4 Burr., 2235, as establishing this doctrine. In this view of the law, the only question in the present instance is whether the transfer of the notes was made in contemplation of insolvency, or rather, whether the case was properly submitted to the jury, for that the transfer was voluntary, and that the defendants obtained a preference over other creditors of the insolvent is unquestionable. The question was directly put to them, and they were instructed that if, when they transferred the notes, Dodge & Co. had "reason to believe, and did believe, that their affairs were in such a situation that insolvency would in all probability ensue, though there was a possibility of their tiding over their difficulties, the transfer would be in contravention of the statute, and be deemed done in contemplation of insolvency, and would invalidate the act if done to secure and give a preference to the defendants over other creditors. These instructions are, I think, fully justified by the decisions. In Ex parte Blackburn, already referred to, Bacon, Chief Judge, said ; " The Act of 1869, (the English Bankrupt Act.) is the first statute that contains an express and direct enactment on the subject of fraudulent preference. Before that statute it was necessary, in order to constitute a fraudulent preference, that two things should concur, — the payment must be voluntary, and it must have been in contemplation of bankruptcy. The current of recent decisions has established with regard to the latter that where a man was in such a hopeless state of insolvency as that it was impossible for him to satisfy his creditors or to carry on his business, he must be held to have contemplated bankruptcy, and upon these 520 HARVIE v. WYLDE et al. principles it was that juries were directed to consider whether, upon the facts proved, the just inference was that a fraudulent preference had been made or intended by the debtor." That Dodge & Co. were utterly and hopelessly bankrupt when they made the transfer to the defendants the evidence clearly establishes. The learned Chief Justice adverted to the fact that contemplation of bankruptcy is not referred to in the English Act as a test of the validity of a transfer ; and in Ex r parte Norton, L. R, 16 Eq., 408, the same learned Judge said Courts were formerly often embarrassed about " contem- plation of bankruptcy." In this act there is nothing about " contemplation of bankruptcy," so that English decisions on this point under it can have little or no bearing on the construction of this section of our act which we are considering. We have, however, a decision of high authority, both as regards the Court in which it was given, and the Judge who delivered it, on the clause of an act which does contain these words, the Jamaica Insolvent Act, the 67th section of which enacts, " that if any person, in contemplation of insolvency, shall transfer any of his estate to any creditor, such transfer shall be deemed fraudulent and void against the official assignees, unless made within six months of such insolvency." Lord Westbury, in giving the judgment of the Privy Council in Nunes v. Garter, L. R, 1 P. C. C, 347, defines a fraudulent preference under that act thus ; " Where a debtor, in contem- plation of bankruptcy, that is, knowing his circumstances to be such as that bankruptcy must be or will be the probable result, though it may not be the inevitable result, does, ex mero motu, make a payment of money or a delivery of property to a creditor, not in the ordinary course of business, and without any pressure and demand on the part of the creditor." And in Robson on Bankruptcy, p. 130, the doctrine is recognized that though there might not be in the mind of the debtor any actual contemplation of bankruptcy, yet if he were in such a hopeless state of insolvency that he could not reasonably expect to avoid it, a payment voluntarily made would be considered as made in contemplation of bankruptcy ; that Morgan v. Brundrett, 5 B. & Ad., 296, would seem to have gone too far in holding that actual contemplation of bankruptcy EQUITY. 521 by the debtor was necessary and that the correct interpretation of the words would seem to be that of TiNDAL, C. J., in Gibson v. Boutts. Section 89 of our Insolvent Act makes the contemplation of insolvency the test of the validity of such a transfer,if thereby the creditor obtain an unjust preference over other creditors of the insolvent. It is in these words ; " If any sale, etc., or transfer be made of any property, real or personal, by any person in contemplation of insolvency, by way of security for payment to any creditor, or if any property, goods, effects, or valuable security be given by way of payment by any such person to any creditor, whereby such creditor obtains or will obtain an unjust preference over other creditors, such sale, deposit, transfer or payment shall be null and void, and the subject thereof may be recovered back for the benefit- of the estate of the insolvent by the assignee, and if made within thirty days before the execution of a deed of assign- ment, etc., shall be presumed to have been made in contempla- tion of insolvency." And in Adams v. McColl, 25 U. C, Q.B.E., 219, on a clause of the Canadian Insolvent Act of 1864, similar to this, Chief Justice Draper said ; " The knowledge by the plaintiff, therefore, of the insolvent's inability to pay his debts, or of a fraudulent intention on his part to impede or obstruct or delay his creditors, is not material to make the transfer null and void, and even the existence of a fraudulent intention is not necessary." It presents, as applicable to this case, no other question than whether the insolvent, in contemplation of insolvency, gave the timber by way of payment to the plaintiff, whereby he obtained an unjust preference over other creditors. We take the policy of the act to be to distribute the insolvent's effects rateably among his creditors, and that if any of them obtain payment in full by the means stated in this section, while the others get nothing, it is an unjust preference contrary to its letter and spirit. If the jury were not misdirected, then, did the evidence justify them in finding a verdict for the assignee ? I confess I do not see how they could have found otherwise. The only conclusion to be drawn from the facts in proof was that Dodge & Co., being utterly unable to meet their engagements, 10 a; 522 HARVIE v. WYLDE et al. made the transfer of the notes to defendants, in order to secure them from loss on those notes which they had endorsed for them, and this was done, not in the ordinary course of Business, :for then Dodge & Co., the makers, would have paid them tthemselves at maturity to the bank which held them, on receiving the notice that they were about to fall due. Nor was it in the ordinary course of business for the insolvents, when unable to pay their outstanding and dishonoured notes :at the back, to place in the hands of the defendants, and out >o'f their own control, $850 more than sufficient to pay the note of $3,000, to take up which when due it is said the transfer was made, with no particular object, and with no instructions as to its application. But it was contended that the act did not apply to this case because the defendants were not creditors of the insolvents. If such a position could be maintained it would be at variance with the whole scope and policy of the Insolvent Act. If a person insolvent and contemplating to take the benefit of the Act could, before making his assignment, transfer his assets to such of his friends as might have endorsed notes for his accommodation, to enable them to retire them as they fell due, and leave himself without funds to pay his other creditors who have become such in the ordinary course of business, by purchase of their property or otherwise, the act would be rendered in most cases useless, and the effect of a decision to that effect would be, instead of making a rateable distribution of the assets of the insolvent among all his creditors, to give preference to such as, by endorsing his accommodation paper, had given him a false credit and thereby encouraged and enabled him to contract those debts which would remain unpaid. A stronger case can hardly be put than the case before us, where the transfer was made to the defendants, and the liabilities were $100,000 and upwards, while notes were lying dishonoured at the bank. The means by which they might have paid some of their debts then due they hand over to an accommodation endorser, and then make their assignment, and have from ten to twenty cents in the dollar for their other EQUITY. 523 creditors. Had they pursued the same course with Mr. Black, who had also endorsed paper to a large amount for their accommodation, and was similarly situated with the defendants, there would have been nothing whatever for what I think may be termed their legitimate creditors. The only case cited in support of this position was Yates v. Hoppe, 9 0. B., 544, but that is wholly inapplicable, as the jury there found that the payment was not made in contemplation of ' bankruptcy, and I have found no case to sustain it. There are cases, however, which take an entirely different view of the subject. Devoe et al., Assignees, v. Watts, Doug., 89, was trover and verdict for the plaintiff. Several bills and notes had been endorsed for the bankrupt by Watts and others, which remained unpaid, and he agreed to assign a lease to secure the payment of the debt. Lord Mansfield held that the assignment was fraudulent, as the assignees were preferred to other creditors, and it was void as made in contemplation of insolvency. So in Hasuls, Assignee, v. Simpson, reported in a note to the foregoing, (p. 92,) an assignment of property was made to defendant, to indemnify him on a bond he had entered into for the bankrupt. It was urged that defendant was not a creditor, and that he did not become such till after the commission of bankruptcy issued. Lord Mansfield held the assignment fraudulent, and said it made no difference that Simpson was not a creditor at the time ; it was a preference to him when he should become a creditor, and the other Judges concurred. Leah v. Young, 5 El. & B., 955, is to the same effect. The case of Groom, Assignee, v. Watts, 4< Ex.,727, is very like that before us. In March, 1845, Francis, the bankrupt, and Miss Eiche, as a surety for him, made their joint and several promissory note for £270, payable to Lazarus & Myer. The defendant, in 1846, married Miss Eiche. In June, 1848, Francis became embarrassed, and placed his assets in the hands of one Wood, for the benefit of his creditors. In September of that year the defendant first became aware of the existence of the note, and, by his desire, his wife applied to Francis for money to enable her husband to take up the note, which was in the hands of Lazarus & Myer. Francis gave an order upon Wood for 524 HAftVIE v. WYLDE et al. £270. They refused to receive that amount unless the whole of Francis' debt was paid to them. He was indebted to them in a larger amount. The defendant kept the £270 as an indemnity. On the 10th February, 1849, a fiat of bankruptcy issued against Francis on his own petition. The learned Judge told the j ury that the plaintiffs were entitled to recover if Francis, knowing himself to be insolvent and contemplating insolvency, voluntarily gave defendant the £270, intending to favor him beyond other creditors. The jury found for the plaintiff for that sum. Gurney moved for a new trial on the ground of misdirection, contending that the defendant vjas not a creditor of the bankrupt, but a mere agent for the conveyance of the amount of the note to the holder. It was the same as if the bankrupt had given money to his servant to take it up, (the very language used to us on the argument by the counsel for the defendant.) Pollock, C. B. ; " This is a totally different matter ; the money was given to defendant to protect him. A servant is a mere messenger." Alderson, B. ; " This was money had and received by defendant to the use of the assignee, inasmuch as it was money handed over by the bankrupt, under such circumstances that it was against law that he should retain it ;" and the rule was refused. I will refer to one more case, because the circumstances seem identical with this. In Churcher v. Cousins, 28 U. C, Q. B. R., 544, the insolvent sold lumber to Campbell for $300, for which he gave his note. The note was taken to the bank of British North America, to be applied to payment of a note in the bank for §130, made by the insolvent and endorsed by the defendant, and the balance on another note endorsed by him. The transfer was held void under the section of the Upper Canada Act, similar to ours, and the subject recoverable back from the defendant for the benefit of the estate. I have gone the more at large into the reasons which led me to the conclusion at which I have arrived in this case, because I have felt the question involved to be one of much importance to the commercial community ; for, if transfers made under circumstances like the present are to be upheld, and an equal distribution of his assets can be so easily prevented by the insolvent, the beneficial operation of the EQUITY. 525 insolvent law will be destroyed, and the effect of it will rather be to sanction and legalize such preferences as it was supposed to have been the object of it to prevent. In Re FRASER & PAINT. The following opinions of Ritchie, E. J., should have been published in 3 E. & C. at p. 16. They were delivered after argument before the full Court of the appeals from his decision as Judge in Equity, reported ante p. 68, but did not come into the reporters' hands when 3 R. & C, was going through the press. Ritchie, E. J., read the following opinion : — The opinion which I have expressed in this case remains unchanged. The appellant has, I think, failed to shew sufficient grounds for setting aside the award, but, if it had been open to objection, the delay which took place in making his application would be fatal. By our Common Law Practice Act, in all cases not other- wise provided for, the practice and proceedings of the Court shall conform, as nearly as may be, to those of the Superior Courts of Common Law in England in force previous to the first year of William IV.; and in the Equity Procedure Act it is provided that the practice of the Supreme Court, as far as applicable, shall be observed on the equity side, except as altered or modified by statute or the rules of the Equity Court. In other cases the practice of the English Chancery shall be adopted. It was assumed at the argument that if the submission and award had been made a rule of the common law side of the Supreme Court, the objection must have prevailed, in consequence of a full term having intervened between the publication of the award and the application to set it aside ; but it was contended that, inasmuch as the Equity Court is always open, irrespective of terms, the statute of 9 & 10 William IV., chapter 15, and the practice under it, could not apply, and that, therefore, there was no limitation within which the application must be made. There is, in my opinion, no ground for such a contention. In England, the 526 In Re FRASER & PAINT. Court of Chancery, like the Equity Court here, was always open without reference to the law terms, but that Court, nevertheless, adopting the rule in analogy to the statute, would not set aside an award where a term, that is a common law term, had been allowed to pass without any steps having been taken. In Nichols v. Roe, 3 Myl. & K., 437, the Lord Chancellor held that the application to set aside an award, made under a submission similar in effect to this, must be made before the last day of the term after the publication of the award, and that to allow a party to come to that Court, even by bill to set it aside, would be to render the provisions of the statute wholly nugatory. The same objection was taken there which was urged on us, that the opposite party had not made it a rule of Court within the time, so that a motion to set aside the award could not be made. To this the Lord Chancellor observed that there never was a greater mistake; the party objecting to the award might himself have made it a rule of Court, and then moved. Lord Romilly, in the course of his judgment in Peek v. Gurney, L. R., 13 Eq., 79, observed that no conduct was more rigidly reprobated in Equity than the system of playing fast and loose. The appellant in this case seems to have done this when, knowing everything connected with the alleged irregularities of the arbitrators of which he now complains, he yet proceeded with the reference without objection, lying by until he should have ascertained whether the award was in his favor or not ; and again, after becoming acquainted with the contents of the award, he makes no objection to it, attends the sale under it, and not only makes no protest against it, but, by affording information in relation to the property offered for sale, induces those present to suppose that he sanctioned what was going on, and only objects some time after, when the result of the sale is known, and takes no steps to set aside the award till the expiration of six months, or thereabouts, from the time of its publication. Surely purchasers at that sale might well contend that the appellant was estopped from objecting to its validity. If, therefore, there had been more in the objections taken to the award than I thiDk there is, and even if injustice had been EQUITY. 527 done to the appellant, of which there is no pretence, I should have been forced to the conclusion that, by the course he has pursued, and by his own laches he has deprived himself of the right to relief from this Court. On the second appeal His Lordship read the following opinion : — The only question involved in this case is whether the Court had power to order the deed to be executed by a Master on the neglect or refusal of Paint to execute it, his counsel contending that the statute authorizing such a course relates to causes in the Court, and that the proper and only course would have been to proceed against Paint by attachment for disobeying the order of the Court. The object of making a submission and award a rule of Court is to enable the party in whose favor it is to enforce it, or if by the other party, to enable him to bring them in Court, so as to enable him to set aside the award if he has grounds for so doing. Until the Imperial Act, 1 & 2 Vic, chapter 110, the only mode of enforcing payment of an award which had been made a rule of Court was by attachment for a contempt in not obeying the order of the Court. That statute extends the remedy greatly, and our statute goes still further,and,it appears to me, clearly recognizes the proceedings as a cause in the Court, as it provides that the Court may enforce obedience to any award by directing judgment to be entered and execution to issue for the amount thereof, with costs, or otherwise to carry into effect such award. The view I have taken of the case is that a party, seeking to enforce an award in his favor, if he resorts to a common law Court, may, by making it a rule of Court, entitle himself to the remedies of that Court by execution, attachment, etc., or, if to the Court of Equity, to the remedies incident to and belonging to that Court, and among them, in this Court, to the right of having a conveyance executed by a Master when the party who was bound to have executed it has refused or neglected. There is nothing whatever, in my opinion, in the objection that this conveyance can only be made in the case of a suit for specific performance. The clause authorizing a conveyance 528 In Re FRASER & PAINT. by a Master is re-enacted from an old Chancery Act, and is there wholly unconnected with specific performance. The argument was that it was grouped with other clauses under the head of specific performance, etc. The other objection is equally untenable, that there was an appeal outstanding. The act regulating procedure in Equity provides that stay of proceedings shall not be consequent upon appeals unless the Judge in Equity, upon special application, shall so order, or unless in special cases the Supreme Court shall interpose to that effect. In this case no stay of proceedings was ordered by the Equity or the Appellate Court, and the party was therefore not precluded from proceeding under the judgment given, but of course he did so at the peril of his proceedings being nullified by the reversal of the judgment. INDEX INDEX. ABSCONDING DEBTOR. See Insolvent Act, 1. ACCOUNT. 1. Plaintiff was joint-owner with defendants of a vessel engaged in fish- ing voyages, plaintiff being master of the vessel. In his writ plaintiff claimed an amount due, but the master reported an amount due by plaintiff to the defendants, arising out of notes of hand given by plain- tiffs and defendants conjointly for the purchase of the vessel, which notes defendants had retired, and an order received by plaintiff for money in which all the parties were interested. Held, that the amounts were properly allowed. Saunders v. Holdsworth et al 411 2. A vessel "was built and registered, — twenty shares in the name of E. V. Crandall, a plaintiff, twenty in the name of H. V. Crandall, a defendant, twelve in the joint names of E. Bigelow, Sons & Co., plaintiffs. The outfits were purchased hy E. Bigelow, Sons & Co., and E. V. and H. V. Crandall, composing the firm of Crandall Bros., under an alleged agreement that they should be paid for out of the first earnings, before any division was made among the owners. The shares of Crandall Bros, were afterwards transferred to J. E. & E. Band, who claimed a right to divide the earnings before paying for the outfits. The evidence was contradictory, both as to the original agreement and as to the know- ledge of it on the part of the Rands, but the Court drew from the evidence the inference that there was such an agreement, and that the Hands were aware of it, and decreed an accounting as prayed for. Bigelow et al. v. Rand et al 495 ADMINISTRATION, Discretion of Judge of Probate in granting. See Discretion op Judge. AGENCY. Defendant obtained a loan of £200 on mortgage from Cogswell, through a Solicitor doing business at Wolfville, who made a charge of £10 for conveyancing- and commissions, and a further charge of £10 for guaranteeing the defendants from loss in case the principal was called for within five years. The mortgagee did not authorize the taking of anything beyond the legal rate of interest, was not cognizant of it, and did not participate in it. The rate of interest stipulated for was six per cent., which was all that the mortgagee received. The Solicitor stated, in evidence, that when the defendant applied to him for money he wrote to the mortgagee, who agreed to lend it on the security offered, 11 INDEX. and sent a sum which, together with an amount already in his hands, made up the £200 ; that he was not the agent of the mortgagee in any case to invest his money, and that in remitting the interest he deducted nothing for commissions. But defendant swore that on the first occa- sion when he applied to the Solicitor, the latter told him that he had £200 to lend, that he had advertized it, and that it was the mortgagee's money. Held, that the wrong done to defendant was not done by the mortga- gee, but by the Solicitor, not as mortgagee's agent but while acting on his own behalf, and further, that, assuming him to be the agent of the mortgagee, as he was not a, general agent, but a particular agent, defen- dant could not assume, that he had been authorized to do an illegal act. Almon el al. v. Foot 1 See also Foreclosure, 2. ALLIANCE SOCIETY OF LONDON. The plaintiff company was registered under the Imperial Act, 25 and 26 Vic, cap 8, and claimed to do business in Canada under 37 Vic., cap. 49. The object of the Society was expressed to be to advance money in various sums to such members as were desirous of receiving it, the repayment to be secured on real or other security ; and in the article of the constitution entitled, Foreclosure and Redemption, it was provided that if any member should desire to pay in advance all or any portion of an appropriation or premium, he should be at liberty to do so, and should be entitled to such discount as the actuarv might recommend. The writ alleged that, the mortgagee having become a member of the Society, £300 was advanced to him at a premium of £379 6s. 8d., the advance and premium to be repayable in quarterly instalments in twenty years ; and that, according to the regulations of the Society, if any instalment or fine remained in arrears foi three months, the whole sum advanced, together with the premium, should become due. The proviso and covenants in the mortgage were to this effect, and the plain- tiff claimed £675 7s. &d., although the mortgagor had only had the sum of £300 for nine months. Held, that the plaintiffs were only entitled to the quarterly instal- ments up to the time of the foreclosure and sale, and that the amount of principal due should be ascertained by computing how much of the quarterly payments represented principal, and how much interest. Matterson v. Elderfield, L. R., 4 Ch., 207, distinguished. The Alliance Society of London v. Chisholm 414 APPOINTMENT OF ASSIGNEE. See Insolvent Act, 10. ARBITRATION. 1. Fraser and Paint, having terminated their partnership business, referred all their disputes of every description to the award of two arbitrators and such umpire as they should select before entering upon their duties as arbitrators. Authority was given to the arbritators or any two of them to enlarge the time for making the award, and the two originally appointed extended the time, and after doing so, selected an umpire and entered upon the inquiry. Desiring to obtain all the infor- mation possible, the arbitrators, without the request of either party, called before them certain persons, neither of the parties being present, but it appeared that the persons so called had no evidence to give about the matters in controversy, and no objection was taken by the party index. iii moving to set aside the award, who knew that the arbitrators had called such persons before them, but yet continued to attend and conduct the reference on his own behalf. The partnership was indebted to Fraser in the sum of $52,840, and there was due to it by Paint $2624, and the award directed that the assets should be held and managed by Eraser under the inspection of the umpire, and that the sale of the partnership property should be made by him at such times and places as the umpire should approve. The award was made 28th September 1875, and no motion was made to set it aside until March 1876, the objecting party having in the meantime, with knowledge of the facts upon which he based his objections, proceeded with the arbitration, attended the sale of the property, and, at the request of the auctioneer, furnished infor- mation as to the boundaries of the land. Held, that the provision in the award as to the sale of the property by Fraser, under the approval of the Umpire, was not such a delegation of authority as should invalidate the award ; that although the arbitra- tors had acted unadvisedly in calling persons before them in the absence of the parties, yet as Paint had made no objection, but had afterwards proceeded with the reference, the objection was not, in view of the lapse of time, entitled to much favor ; that the two arbitrators, in extending the time, before appointing an umpire, had not " entered upon their duties as arbitrators " within the meaning of the clause of the submis- sion providing for the selection of an umpire before so entering upon their duties ; that the policy of the Legislature and the practice of the Court required a party desirous of setting aside an award, to move promptly, and that Paint, by his delay in moving as well as by his tacit and active acquiescence in the award, had waived irregularities in the conducting of the arbitration. In re Fraser $* Paint 68 2. Held, that an award could not be set aside at the instance of one of the defendants on the ground of a claim being improperly allowed against the plaintiffs. Held, farther, that where one of the objects of the suit was to require defendants to submit their differences to arbitration under an agreement to do so, and by the rule of reference all matters in difference in the suit were submitted to their award, the award could not be set aside because the arbitrators awarded damages to the plaintiffs. Held, further, that where all the parties and the arbitrators them- selves admitted that a mistake had been made in requiring one of the defendants, as part of the award, to pay off a certain mortgage, which should not have been required, the evidence of the arbitrators was receivable as to such a point, as well as on the point of their having taken into consideration matters not within their jurisdiction, and that, as the arbitrators had inadvertently made a mistake with reference to the mortgage, the award should be sent back to them to be corrected. Tremain et al. v. Mackintosh et al... , 447 ARREST OF DEFENDANT, Effect of. Parker & Grant having recovered a verdict against Fairbanks, a rule nisi was taken out to set it aside. T. & K. DeWolf & Co. became sure- ties to respond the final judgment, and took a mortgage from Fair- banks to secure them from loss on account of their bond, and also to secure the amount of an existing indebtedness. The rule nisi having been discharged and judgment entered up against Fairbanks, an execu- tion was issued under which he was arrested and placed in custody. While he was in custody, and after the present suit was brought by plaintiff as assignee of DeWolf & Co. against Fairbanks, to foreclose the mortgage, and after said Fairbanks had answered, his estate was placed in insolvency, and Creighton, his assignee, intervened and became a party. Parker & Grant also became parties, as interested in iV INDEX. the subject matter. Held, first, that the insolvency of Fairbanks did not prevent the plaintiff from proceeding with the foreclosure, and, secondly, that Parker & Grant had not lost their lien on the mortgaged property, in consequence of their having arrested Fairbanks under the judgment. Tucker, Assignee, v. Creighton, Assignee, et al 261 ASSIGNMENT, Inartificial instrument construed as. R. M. & Co, sought to have surplus proceeds arising out of a sale under foreclosure applied to a recorded judgment held by them against the mortgagor. The judgment was recorded in Ma}-, 1874. Plaintiff's mortgage had been recorded in 1869, and a prior mortgage of the same property had been recorded in 1855. Defendant having become insol- vent, his assignee, in order to prevent the sacrifice of the property, paid off the mortgage last mentioned and the interest on plaintiff's mortgage, receiving from the holders of the mortgage which he paid an instru- ment in which, after reciting the payment of the principal and interest, it expressed that the bond was delivered up to be cancelled, (which, however, was not cancelled, but was produced with the mortgage,) and that they remised, released, and quitted claim to him, as assignee,, the land therein mentioned, and all the right which they had as executors, and all sums mentioned therein, to have and to hold to the said K., as assignee as aforesaid, his successors and assigns. Held, that this instrument, though inartificially drawn, was open to the construction that it was a satisfaction of the debt as between the executors and the assignee, but conveyed to the latter all their interest in the mortgage as against subsequent incumbrancers ; but that, even assuming that it was a release of the mortgage, and not an assign- ment, the assignee had a prior claim to the surplus proceeds for the amounts he had advanced on the mortgage to prevent foreclosure and sale, subject to a credit for any amounts received by him for rent of the mortgaged premises. Bond v. Hutchinson etal 443 See also Equitable Assignment. ATTACHMENT. See Insolvent Act, 1. AWARD. See Arbitration. BRITISH NORTH AMERICA ACT. See Ultra Vires. BUILDING SOCIETY, Nova Scotia. See Foreclosure, 2. ' BURDEN OF PROOF. F. McDonald, deceased, made a mortgage to plaintiff, which plaintiff brought suit to foreclose. Defendants set out an agreement by which plaintiff agreed to release the mortgage on receiving three promissory notes made by one McKinnon, to whom part of the land had been sold by the mortgagor. Plaintiff replied that the notes were only taken INDEX. V •as collateral security, to be credited to the mortgagor when paid, and that nothing had been paid an account of them. On the trial of the issue plaintiff proved the mortgage, and defendants produced no evidence whatever. The Jury found for defendants. Held, that the burden of proof of the issue raised was on the defendants, and that as they had proved nothing, the finding must be set aside. Murray v. McDonald el ah, Administrators H2 CITY TAXES. See Taxes, Lien for. CONSTRUCTION of Agreement. Plaintiff brought action to redeem a mortgage, setting out an agree- ment in writing by the defendant to release it on being paid one-half of the principal of the mortgage and interest in twelve months, plaintiff agreeing to give up certain claims against the defendant. The Master construed the agreement, according to plaintiff's contention, as requiring payment of one-half the balance due at the time of the agreement, while defendant contended that it meant one-half the original principal. Evidence was given in support of both constructions. Held, that, independently of any evidence, the Master's view of the agreement was incorrect, and that there was no necessity of referring the case back to the Master, as the Court had the material for ascer- taining the amount due. Spinney v. Pugsley , , 398 OF INSTRUMENT. The Insolvent conveyed certain property to Wylde, Hart & Co. by an instrument, reciting that he had agreed to give them security on all his real estate, plant and machinery, in the City of Halifax, and after con- veying certain lands, he conveyed " all that and those the machinery, implements and things specified in the schedule hereto- annexed," which schedule was headed, " Plant in the Machine Shop,"' and was found to contain, not stock on hand or articles manufactured, but only such arti- cles as would come under the designation of machinery, implements and things of that sort. A subsequent part of the instrument, provided that all the machinery, implements and things which, during the continu- ance of the security, should be fixed or placed in or about the land described in addition to or substitution of the said machinery, imple- ments and things described in the schedule annexed, should be subject to the trusts, &c. expressed in the instrument. Held, that, under the instrument, only the things enumerated in the schedule annexed, or those added to or substituted for them, passed to Wylde, Hart & Co., and that the word " things," could not be held to embrace the general stock in trade, but must be limited to property ejusdem generis with that described in the words preceding and connected with it. The word " plant," defined as- applied to a manufactory. In re Montgomery, an Insolvent.. , 154 OF STATUTE. See WlNDBOB AND ANNAPOLIS RAILWAY. CONSTRUCTIVE NOTICE. See Registry op Deem. VI INDEX. CONTEMPLATION OF INSOLVENCY. 1. Howell and Stewart, in June 1871, entered into co-partnership as founders, &c, the former to give his skill and ability to the business, and the latter, who was a minor, to supply capital and purchase stock to the extent of $4000. At the time of the agreement a lot of land was pur- chased for SI 0,000 on which to erect buildings for the business, but nothing was paid on account of the purchase money,, which was secured by a mortgage. The deed was taken in the name of Howell and Mrs. Adams, the mother of Stewart, whe advanced the $4000 to start the busi- ness. Although plaintiff contended that this advance was simply made by Mrs. Adams to her son, there was some evidence to show that it was to be repaid by the partnership. Stewart became of age in February, 1873, and in August of that year the partnership was dissolved and a mortgage made by Howell to Mrs. Adams to secure the amount of her advances. The plaintiff:, as assignee, sought to have this mortgage declared void, as made in contemplation of insolvency, and they nega- tived fraud in the transaction, though they found that the conveyance had had the effect of impeding obstructing and delaying creditors. The Court upheld the conveyance. Fraser v. Adams et al 235 2. Sylvanus Morton, on the 26th of April, 1873, made a deed of property without consideration to his daughter, continuing himself in possession of the property until October, 1875, when he failed. Previous to the date of the deed the Liverpool and Acadia Banks, of ono of which Morton was President, and a large shareholder, had suspended ; and a firm in which he was concerned had failed two days before the date of the deed. Previous to the making of the deed the insolvent had admit- ted to a creditor that if certain proceedings threatened against him, as President of said Banks, were taken, he would have to assign. And after the making of the deed he was challenged in reference to it, and said it was all he could do, under the circumstances, to save his property. Held, that the deed, having been made at a time when the grantor contemplated a state of things that might result in insolvency, and which did, in fact, so result, must beset aside; even h«d it not been shown that the insolvent continued in possession, and a few days after making the deed admitted to his creditor that it was all he could do to save his property. Ford, Assignee of Morton, v. Miles et al 323 3. Dodge & Co., being largely indebted to various creditors, and having notes lying overdue at the bank to the amount of $7,000, with others maturing, took from one McPherson four promissory notes, dated October 26th, 1870, for lumber sold to him, three of which notes, to the aggregate amount of about $4,800, they endorsed to defendants, to meet a note for 83,000, endorsed by defendants, dated July 26th, 1870. The notes so transferred were discounted, and the proceeds applied to the payment of the $3,000 note, leaving a balance of $835, which was retained by defendants, though nothing was then due them by Dodge & Co., and was used to retire a note of Dodge & Co. that subsequently became due. ' One month after the $3,000 note became due, Dodge & Co., on November 29th, 1870, made a voluntary assignment, their liabilities being upwards of $100,000. The jury were instructed that if, when the notes were transferred, Dodge & Co." had reason to believe and did believe that their affairs were in such a situation that insolvency would in all probability ensue, though there was a possibility of their tiding over their difficulties, the transfer would be in contravention of the statute, (the Insolvent Act of 1869,) and be deemed to be made in con- templation of insolvency, and was invalid if made to give the defend- ants a preference over other creditors. The jury found for the assignee INDEX. vii Held, that this instruction was correct, and that the statute was applicable although defendants were not at the time creditors. Harviev. Wyldeetal 515 See also Fraudulent Conveyance. See also Insolvent Act, 3, 5, 8. CY-PRES. 1. Matthew Walsh, by his will, directed that his real estate, after the death of his widow, should be sold, and the proceeds placed at interest, to remain and be a perpetual fund, and that when the principal and interest together with other donations which might happen should amount to £1000, the annual interest of the said £1000 should be applied " for the purpose of aiding the inhabitants of the township of Guysboro' to maintain a free Grammar and English school in said township, or establish the same into an academy at the discretion of his trustees, for the benefit of said township." The testator died in 1882, his widow surviving him, after whose death the property was sold by the trustees, and an information was filed at the instance of the trustees of School Section No. 1, (which embraced the town of Guysboro, but con- stituted only one of nineteen school sections included in the township,) to obtain a decree requiring the defendants to pay the proceeds of the real estate to the relators to aid in the support of the County Academy and free Grammar and English School established in the town of Guys- boro under the free school law. The Court directed that the fund should be held till it accumulated to the amount specified, and that the interest arising from it should then be applied to the use of the County Academy, assuming that it should continue, as it then was, free to all the inhabitants of the township. The Queen v. Cutler et al 159 2. A testator bequeathed £2,500 to be invested in stocks, &c, the interest on £1009 to be paid to certain clergymen to provide fuel for the poor of their flocks during the winter ; the interest on £500 to be paid to the National School, and a like sum to the Acadian School, on condition of their each teaching at least twelve poor children ; and the interest on £500 to be paid to the Institution for the Deaf and Dumb to assist in educating the poor who might be thus afflicted. The Acadian and Nati- onal Schools were afterwards superseded by the Free Schools established under the Act and supported by taxation. The Master to whom it was referred to report a scheme to carry out testator's intention reported that the sum bequeathed to the schools so superseded should be paid to the School Commissioners towards the erection of a High School in Hali- fax, under the Act of 1877, Cap. 39. Held, that as the poor were the objects of testator's bonnty, his inten- tions wonld not be carried out by the scheme proposed, which would simply relieve the citizens generally of taxation, but that the bequest in question should be divided between the Institution for the Deaf and Dumb, and the Asylum for the Blind, (an analogous institution, but one not in operation when testator made his will,) to assist in educating the poor inmates of those institutions. The Attorney-General v. Bullock et al 249 3. Testator, who died in 1850, devised property to the Kirk Sessions of St. Matthew's Church, in trust to fit it up for a school under the charge of the Sessions. The property went into the possession of the devisees, but no steps were taken to carry out testator's intentions. Proceed- ings were instituted in the name of the Attorney General to obtain a decree authorizing the adoption of a scheme to carry out testator's intentions, the devisees and the heir-at-law being made par- ties None of the defendants appeared and a default was entered. On application being made for reference to a Master, the Court allowed the defendants to raise the question whether, the devisees having taken 102/ Vlll INDEX. no proceedings, the property did not revert to the heir-at-law, who then appeared by counsel and had a day appointed for the argument, but on the day appointed for argument none of the defendants appeared and the cause was referred to a Master, who reported that the funds should be appropriated towards the erection of a High School building in Hali- fax, the Kirk Sessions to have the power of nominating two free scholars, having concurred in the recommendation with that condition. No opposition being made to this report, and no counter scheme being ■ suggested, the report was confirmed and the scheme adopted. Attorney-General v. Avery et al 253 DEED decreed to be mortgage. See Equitable Mortgage. DEMURRER. See Practice. DISCRETION OF JUDGE. The granting of administration de bonis non to the widow of the deceased was appealed from by his daughter, on the ground that the administratix had been guilty of waste on the lands set off to her as dower. It appeared from Respondent's affidavit that, whether her acts amounted to waste or not, she considered herself justified in the course she had pursued. Held, that as there was nothing to indicate such dishonesty on the part of the widow as should preclude her from all right to the adminis- tration, the Court could not control the discretion conferred by the act on the Judge of Probate. In re the Estate of James W. Roop 162 DRAINAGE. DYKE LANDS. See Injt/hction, 3. The Wickwire dyke, being outside of and affording protection to the Grand Pre dyke constructed many years before, the proprietors of the Wickwiie marsh, acting under the provision of the statutes then in force, (see R. S. Cap. 40, s. 27) took proceedings to settle what proper- tion of the expense of the maintenance and repair of the Wickwire dyke should be contributed by the proprietors of the Grand Pre Marsh, which sum so settled was annually paid by the proprietors of the Grand Pre Marsh so long as that marsh received any protection from the outer dyke. In 1869 a heavy gale and unusually high tide broke the outer dyke and submerged the Wickwire marsh, and it was not until 1871 that the dyke was reconstructed. Held, that the proprietors of the Grand Pre marsh could not be called upon to contribute toward the repair of the Wickwire dyke beyond the annual sum eriginally settled. Defendants having contended that they could not be required to con- tribute at all, as their marsh was only partially enclosed and not protected by the Wickwire dyke ; and further, that their had been irre- gularities in the original proceedings ; Held, that having acquiesced in the annual payments for upwards of twenty-five years they could not now raise such a question, and that the alleged irregularities could only have been taken advantage of by certiorari. Wickwire v. Gould 245 INDEX. ix EJECTMENT. Plaintiff brought action of ejectment, claiming under a deed from one Purdy, but it appeared from uncontradicted parol evidence that Purdy had purchased the land tor the benefit of defendant's father, who had paid considerable sums on account of the purchase money. After the death of defendant's father, Purdy agreed to convey the land to plaintiff; and it was in evidence that plaintiff held the land for the benefii_ of defendant, then in possession of the property, that he was to give him a deed of it when he paid him what he owed him, and that plaintiff was to have the hay and half the pasture for interest ; but no writings passed between the parties. Plaintiff received part of the hay and had pasturage on the property, and before action brought defendant tendered to him the principal money. Held, that the equitable defense, based upon the above facts, must prevail. Milner v. Ringwood 123 ELIZABETH, Statutes of. See Insolvent Act. See also Fraudulent Conveyance. EQUITABLE Assignment. Plaintiff claimed to be entitled to a sum paid into Court by Messrs. Ryerson & Co., under an assignment of it from H. M. Oakes. Previously to this assignment Oakes had given an order to Dunn & Vanghan on Ryerson for the amount, which had been presented, and to which no objection was taken. The order was given to Dunn & Vaughan for supplies furnished by them for a vessel, the sale of which by Kyersons had created the fund, and was given in pursuance of a promise when the supplies were furnished, that they should be paid for out of the proceeds of the sale. Held, that Dunn & Vaughan were entitled to a decree for the amount of the order with costs against the plaintiffs. Oakes et at. v. Ryersen it al 487 MORTGAGE. 1. Defendant took a conveyance of land from A. F. LeBlanc in the form of an absolute deed, dated 26th July, 1864, and at the same time execu- ted a bond to re-convey upon re-payment of the consideration money of the deed within two years. At the expiration of that period, defendant asked LeBlanc whether the money would be repaid or he should keep the land, to which LeBlanc replied that he would prefer that defendant should keep that land. The bond was given up to defendant and he took the land, allowing LeBlanc to live on it, but no rent was paid, and neither the principal nor the interest of the money advanced by defen- dant, who afterwards sold the land for a larger sum than the amount of his advances. LeBlanc afterwards became insolvent, but at the time of his giving up the property he was not indebted to any of the creditors who had claims against him when he went into insolvency. His assignee sought in this action to have the deed decreed to be a mortgage. Decree for defendant with costs. Henderson v. Comeau 87 2. Defendant, in March 22, 1861, conveyed to J. J. Marshall certain real estate, by an instrument in the form of an absolute deed, but which defendant contended was given as a mortgage to secure a debt due Marshall. On January 1, 1862, Marshall signed a memorandum acknowledging the receipt of £78-1 8-4 from defendant on account of the X INDEX. property, " leaving a balance of £171-12-11 — which when paid to m«y and the interest thereon, I bind myself to reconvey the said property, &c. ;" and there were other memoranda showing that Marshall had treated the conveyance as a mortgage. In Jannary, 1868, defendant, having continued in possession of the land ever since the execution of the conveyance, became the tenant of Marshall under a lease then entered into. After the death of J. J. Marshall, the plaintiff, claiming under his will, brought an action of ejectment against the defendant. Held, (an equitable plea having been pleaded,) that the conveyance from defendant was a mortgage, and that the relation of mortgagor and mortgagee was not altered by the fact of the lease being made in 1868. Marshall v. Steel 116 3. Plaintiff, being indebted to several persons, conveyed property to hra son, under an agreement that the son should liquidate the debts, and the plaintiff should have six years to pay him such amounts as he should advance, plaintiff to remain in possession in the meantime , and if he failed to re-pay the amounts, the land should become absolutely the property of the son, who, contemporaneously with the execution of the deed, delivered a bond conditioned for the fulfilment of the agreement. The son afterwards conveyed the property to Dunn, who was aware of the terms of the agreement. Held, that the transaction was in effect a mortgage, and that Dunn could not claim to hold the land as security for an alleged claim against the plaintiff which he had discharged, and which was not mentioned in the original agreement, but should re-convey the land on payment of the amount due on the agreement between plaintiff and his son, less any income derived by Dunn from the land. Knolan v. Dunn et al 504 EQUITABLE PLEA. Plaintiffs purchased certain real estate, subject to a mortgage held by W., as Guardian, for $S,840, and sold a portion to defendant, who was aware of the mortgage for $7,000. Defendant paid Sl,400 in cash, and received a deed, with an absolute warranty and covenants for title, without reference to the mortgage. On the same day plaintiffs gave a mortgage of the whole property to K., for $3,760, of which defendant had no knowledge when he made his purchase, and which was recorded before plaintiffs' deed. Defendant gave plaintiffs a mortgage for the balance of the purchase money. The mortgage to W. was foreclosed, and the property sold by the Sheriff, and defendant was obliged, in order to protect himself, to become the purchaser, paying for the whole property included in the mortgage $8,850, -which was applied to the payment of the amount due on the two mortgages to W. and K., and to a judgment recorded against the property. Plaintiffs then brought an action against the defendant on the covenant in his mortgage. Held, that they had no equitable right to call for payment of the pur- chase money until they had cleared the defendant's title ; that defend- ant was entitled in equity to pay off the mortgages, and had in effect done so, and to recover from the plaintiffs the amount so paid, over and above the purchase money, and that before plaintiffs could re-possess themselves of the portion not included in the conveyance to defendant, they would be obliged to pay him the difference between the amount at which he had purchased and the amount he had been obliged to pay. Q. Whether the defendant could be compelled to convey even on the terms mentioned. Barton et al. v. Baldwin 366 See also Ejectment. INDEX. XI ESTOPPEL. Plaintiff brought suit to foreclose a mortgage made by defendant, who alleged in her answer that she had been induced to sign it by the fraud of Thomas S. Fowler. Her testimony as to the imposition alleged to have been practised upon her was contradicted by Fowler, and it was in proof that she hnd re-executed the instrument iii the presence of the clerk of plaintiff's solicitor, who had deferred paying over the money in order to assure himself that defendant understood the transaction. There was also evidence that defendant was aware of the nature of the instrument shortly after signing it, and did not repudiate it, but entered into negotiations to obtain security from Fowler, who had retained the money advanced on the security of the mortgage. The Court, in view of the evidence, concluded that defendant, when she signed the instrument, must have understood its nature, and held that, whether she did or did not understand it, she was estopped, as against plaintiff, from saying that she was not aware of its contents. Kinnear y. Silver 101 See also Insolvent Act, 2, 5. EVIDENCE. I. D. made a mortgage to defendants' testator, to secure the payment of three promissory notes. The notes were paid, and handed over to D. upwards of twenty years before this action was brought by D. to compel defendants to execute a release of the mortgage. During the subsequent period no payments were made by D. or demanded of him, and the estate of testator was settled without any reference to the mortgage as an outstanding debt due the estate. After bringing the action D. became insolvent, and made an assignment under the Insol- vent Act, and his Assignee intervening, under an order of the Court, beeaine plaintiff in the suit. Held, that D., not being a party to the suit when evidence was taken, was not prevented by Section 41 of Chapter 96, It. S., from giving evidence of transactions with defendant's testator. Bell v. Brown et cd 20 2- On the trial of issues of fact, an account book was produced, kept by plaintiff, and the attention of the Court was turned to certain entries. Held,ths.t, although in going into an accounting every portion of the book could be referred to by both parties, yet on the trial of the issues, only those portions of the book could be commented on to the jury which had been referred to and read. Eaton v. Weatherbe. . 48 3. Plaintiff, as administrator, sought to foreclose a mortgage for £200 made by defendant ; wfeo, in his answer, set out a series of transactions with the deceased iu regard to the mortgage, and further alleged that deceased mortgagee had delivered to him a memorandum, signed by him, as follows : — " The mortgage which I hold of W. J. W., bearing date, (etc.), for £200, is not payable to my heirs, executors or adminis- trators after my death.— I. W. W." The memorandum was not pro- duced, bat on proof of loss, secondary evidence was given, which the Judge considered of a suspicious character. Held, that the memorandum, even if there were no suspicious cir- ctrmstaiM«s about it, would not operate as a release of the mortgage, either at law or in equity, and that plaintiff was entitled to a decree. Woodworthv. W«odworth 3* J TO SET ASIDE AWARD. See Arbitration, 2 Xll INDEX. EVIDENCE, Conflicting. Plaintiff purchased a house from the defendant, the consideration stated in the deed being £250. Defendant had mortgaged the property to the Building Society, and there was a balance due the Society on the mortgage of £210 16s, which plaintiff agreed to assume. The other conditions of the bargain were in controversy, and defendant contended that plaintiff was to pay him all the sums that he had paid to the Society for dues, in addition to the bonus and entrance fee, find the difference between the consideration and the amount due the Build- ing Society on the mortgage, while plaintiff stated that he was only to make good to the defendant the payments he had made in obtaining the loan. The evidence was conflicting, but the plaintiff's statement was corroborated by his wife. Held, that plaintiff could not be charged with the amounts paid by defendant to the Society as dues. Daley v. Farrell 232 FISHING VENTURE. Doherty et at. v. Power et al *. , 419 See also Partnebship, 4. FORECLOSURE. 1. Hon. James Tobin, by his will, devised land to his executors to their use during the natural life of his son, Michael Tobin, upon trust to per- mit his said son to occupy the said premises and receive the rents, after certain deductions, for his own use and benefit, and from and immedi- ately after the decease of his said son Michael, in trust to convey and assure said premises unto the child or children of his said son Michael, living at the time of the decease of his said son Michael, and to their issue. Defendant, a son of said Michael Tobin, mortgaged his interest to plain- tiff, and in answer to the writ of foreclosure, set out the above facts, adding that said Michael Tobin was still living, and that some of his children were married and had lawful issue. Held, that defendant, having mortgaged his interest to plaintiff, could not repudiate the transaction, and ask to have the mortgage declared inoperative, while retaining the amount received as consideration for it ; aud further that plaintiif was not bound to wait until the title of the mortgagor became complete, before foreclosing. Lawson v Tobin Ill 2. Defendant, a member of the Nova Scotia Building Society, obtained an advance, and gave his mortgage and bond ; after which he sold his equity of redemption, and a suit was brought to foreclose the mortgage, without making him a party or giving him notice. The land was bought in by the Society for a sum less than the costs in the foreclosure suit. An action was then brought against the defendant on his bond. An equitable plea was pleaded, under which defendant gave evidence that the Secretary of the Society, upon defendant asking for a release of his bond, replied that it would be a good deal of expense and nothing would ever come against him, and no application was thereafter made to him for dues or fines, the notices being sent to the purchaser. Held, that the Secretary had no power to make the arrangement alleged, to which the Directors had not assented, and that the defendant, being a member of the Society, was bound to know the limits of the Secretary's authority ; that, although the rules of the Society restricted them to the advancing of money upon real estate security, there was nothing to prevent them from taking the defendant's bond in addition, even if they could not take the bond of a stranger; that the fact of a sale under foreclosure did not prevent the Society from sueing on the bend, index. xiii so long as they held the land ; that the decree against the defendant could not include the costs of the foreclosure suit, to which he was not a party, but that he was not entitled to credit for the proceeds of the fore- closure sale, as they did not amount to the costs in that suit ; and that the trustees were the proper plaintiffs. Almon et al. v. Busch 3g2 -3. To a suit brought to foreclose a mortgage defendant relied chiefly upon two grounds of defence,— first, that concurrently with the making of the mortgage plaintiff gave defendant a bond wherebv he bound himself to erect a double house on the land within ten months, which ■defendant contended had not been built in such a manner as contem- plated by the agreement ; secondly, that the principal was not to become payable until ten years after the date of the mortgage. The number of years was left blank in the mortgage. Defendant swore that it was to be ten years, which plaintiff denied, and there was no other evidence. Held, that the first defence could not prevail, as, assuming the defen- dant's statement to be true, it only formed the eround of an attion for damages, and that, as to the second, as there was no satisfactory evi- dence to supply the omission of the number of years, the Court must construe the mortgage as if no time was mentioned, and plaintiff had a right to foreclose. Higgins v. McLachlan 441 4. Defendant, in his answer to a suit for foreclosure of a mortgage, set out that the mortgage had been given to secure the payment of a note from defendant to plaintiff for £68 10s., and an advance of $200 to be made by plaintiff to defendant, which was made and re-paid by the defen- dant before the foreclosure suit waB brought by plaintiff, as executor of the mortgagee. In his evidence defendant made an entirely different case, — that the note had been re-paid before the execution of the mort- gage, and that the $200 paid by plaintiff to defendant was soon after returned, in the very same money that had been received, having been only intended to strengthen the transaction; defendant contending that the mortgage had been given without any bona fide consideration, but merely to protect his property from a claim of W. & G. A jury to whom issues were submitted, found that the object of the mortgage was to evade payment of the debt to W. & G. ; that the mortgagee was aware of that fact when he received the mortgage, and that the mortgage was given without consideration. Held, that notwithstanding these findings, the plaintiff was entitled to a decree of foreclosure. McLellan v. Fulmore 453 See also Sale Under Foreclosure. See also Alliance Society op London. FOKECLOSUBE, notice to encumbrancers. Benjamin, Freeman & Calder purchased certain lands, subject to a subsisting mortgage, each of them receiving a deed of one undivided third part. They had formed a partnership for milling and lumbering, and Calder borrowed $2,000 for the purpose of erecting a mill, for which he gave a confession of judgment to the plaintiff, which was duly recorded. The partnership becoming embarrassed, assigned all their property to Taylor and others, as trustees, and afterwards assigned, under the Insolvent Act, to Taylor, who procured the mortgage to be foreclosed and bought in the property, which he afterwards sold to Benjamin. The plaintiff was not made a defendant in the foreclosure suit, and received no notice of the sale, although Taylor was aware of the fact that the plaintiff held a judgment, and that it was recorded in the county where the land lay, and Benjamin, when he took the deed, was aware of the facta. XIV INDEX. Held, that plaintiff was entitled to a re-sale, with notice-, and that the plaintiff's lien nndei his judgment must have priority over the deed in trust. Kaulbackv. Taylor et al 409 FORECLOSURE. Re-sale where sale prejudiced by a misunderstandin g. Defendant, a mortgagor, claimed a re-sale of premises sold by the Sheriff under foreclosure process and bonght in by the plaintiff, (the mortgagee,) on the ground of a misunderstanding at the sale, arising out of the fact that the properties were described differently in the advertisement from the way in which they were described in the mort- gage and writ. In the latter documents only three parcels were enumerated, two on the peninsula and one on Queen street; in the advertis'ement they were described as fonr lots, the Qneen street property being divided into two lots, each separately described, so that when purchasers were told that the last lot was excluded from the sale they would naturally infer that the whole Queen street lot was excluded', and there was clear evidence that such an understanding had preju- dicially affected the sale. Held, that the defendant was entitled to a re-sale, and that the fact of plaintiff haviDg, after the purchase, agreed to sell one of the lots, did not affect that right, as he had obtained no deed, and the sale had not been confirmed by the Court. Bigeloto v. Blaiklock 23 FRAUDS, Statute of. Plaintiff and defendant agreed orally that defendant should advance the consideration money and take a deed of certain lands for plaintiff, who should have fourteen months to repay the consideration money, defendant occupying the lands meanwhile, in lieu of interest for the money advanced, and that defendant ehorald execute a bond to reconvey the premises to plaintiff, on payment of the consideration money. Defendant took the deed, but did not execute the bond, went into pos- session of the land, and made improvements upon it ; and when plain- tiff, within the time stipulated, tendered the consideration money and demanded a reconveyance of the premises, refused to execute a convey- ance, claiming the premises as his own, under the deed. Held, that the Statute of Frauds could not be set up as a defence, to aid the defendant in the perpetration of a fraud, but that the plaintiff was entitled to a reconveyance of the premises. Amero y. Amero See also Limitations, Statute ar. -, Rescinding agreement under. An agreement for the sale of lands good under the Statute of Frauds may be rescinded before breach of it by parol, provided there is a total abandonment of the whole contract, and not merely a partial waiver of some of its terms ; nor does the validity of such rescission depend on the existence of a consideration. Bardayi v. Pcoas 317 INDEX. XV FRAUDULENT CONVEYANCE. 1. W. J. C. being indebted to plaintiff, was sued November, 1867, and judgment recovered for 8293.52, a docket of which was registed Octo- ber, 1868. Execution was issued on the judgment, and land of said W. J. C. was bought in by plaintiff, under Sheriff's sale. In May 1866, W. J. C, being so indebted, conveyed all his real estate, (found to have been then worth $850,) to his son, the present defendant, the considera- tion named in the deed being $300, and this suit was brought to set aside the deed as fraudulent. The jury found that W. J. C. was in possession of the land at the time that he gave the deed to defendant, and continued so for four years afterwards, to May 1870 ; that he was in possession at the time of Sheriff's sale to plaintiff, and at that time resided in the old homestead ; that defendant was in possession, exclu- sively of W. J. C, from May 1 870, under title of conveyance f rom W . J. C. ; that there was no money paid by defendant at the time the deed was given, except two fifty dollar notes of hand ; that defendant knew, at the time he got the deed, that W. J. C, was indebted to plaintiff ; and that the deed was given by W. J. C. and received by defendant to prevent or impede plaintiff and other creditors of W. J. (J. in obtaining payment of their debts. Held, that under the findings of the jury, which the Court considered warranted by the evidence, the deed from W. J. C. to defendant must be set aside as fraudulent. Corbett v. Corbett 40 2. One It. T. Muir, who died 4th September, 1871, by his will, bequeathed his business, including stock in trade, &c, to A. F. Muir, on certain conditions, among which was the payment or guaranteeing to defendants as trustees for his two sisters, the sum of $4000 each, for which they were to take security upon the stock in trade if they saw necessary, within a convenient time after the death of the testator ; and it was also provided by the will that a sum of $2000 should be paid or secured to the defendants personally. A. F. Muir continued trading, collecting the debts of the concern, and disposing of the stock, the money payable to the defendants on their own account and as trustees being left in the business without any security being taken. On the 5th April 1875, A. F. Muir conveyed his stock, then worth about $60,000, to the defendants as security for the payment of the said sums together with a further sum alleged to be due to one of the defendants from the estate of R. T. Muir, and on the 15th June, 1875, defendants took possession of the stock and proceeded to sell it, shortly after which, on the 30th June, A. F. Muir made an assignment under the Insolvent Act. Plaintiff as assignee brought this action to set aside the convey- ance to defendants, alleging in his writ that the conveyance had been made to give the defendants a preference over other creditors, and that the defendants knew or had reasonable cause to know and believe that A. F. Muir was unable to meet his liabilities. Defendants in their answer denied that A. F. Muir was insolvent when he made the convey- ance to them and asserted that when they received it they believed him to be solvent. They denied all fraud on their part in the transaction, and asserted that they demanded the security in pursuance of the direc- tions of the will of R. T. Muir. The jury found that, at the time of the conveyance being made, A. 1. Muir was embarrassed and unable to meet his engagements, that defen- dants did not then know and had not reasonable cause to know that such inability existed, that the conveyance was not made by A. F. Muir with intent fraudulently to delay or impede his creditors, and that the original stock had all been disposed of except about $1600 worth of machinery. Held that under the findings of the jury the conveyance must stand, and that it was not competent for the plaintiff to contend that^ven in the absence of knowledge on the part of the defendants, the conveyance XVI INDEX. should be set aside, as made by A. F. Muir in contemplation of insol- vency, and in violation of section 89 of Insolvent Act, that being a different canse of action from any set ont in the writ. Plaintiff having obtained an injunction to restrain the defendants from disposing of the Stock, the Court directed that the amount for which defendants claimed a lien, with $160 for possible costs, should be deposited with the Receiver General to respond the judgment if favor- able to the defendants, in which case the injunction should continue, otherwise to be dissolved. Forrest v. Muir et al 57 3. Defendant, being indebted to various parties, and fearing lest his creditors should resort to his property, conveyed all his land to his son, the other defendant, while at the same time he and his family were to continue to enjoy the benefit of it. In their answer the defendants alleged a debt due by the father to the son, and an -agreement by the latter to support his father, but the defendants gave no evidence. Held, that the answer of the defendants could not be used as evidence at the hearing, and that plaintiff, as creditor of the father, had a right to a decree to set aside the deed. Newcomb v. Simmonds et al 484 GENERAL WORDS, Construction of. See Construction op Instrument. AGENT. See Agency. IMITATION OF LABEL. See Label. IMPEACHMENT OF WASTE, Devise without. See Waste. INJUNCTION. il. Sanderson, one of the defendants, had been obtaining discounts from the Bank of Nova Scotia on paper endorsed by one or more persons, and the Agent of the Bank becoming dissatisfied on account of the numerous renewals, and referring to the possibility of the endorsers being called upon to take up the notes, Sanderson, in July, 1879, gave the Bank a judgment for the exact amount then due on the notes. In September, 1860, the plaintiffs recovered judgments against Sanderson, and a number of other judgments were entered up against him by par- ties who were made defendants in the present suit. Sanderson con- tinued to get notes discounted until 1874, when his affairs became embarrassed, and the Bank ceased to discount his paper. The notes then at the Bank were taken up by the endorsers, and Sanderson ceased to be indebted to the Bank. In 1874 the parties who were then endor- sers on Sanderson's paper discounted at the Bank took proceedings to revive the judgment, and issued and delivered to the Sheriff an execution, with instructions to levy on Sanderson's real estate. Held, that, the judgment having been taken for a specified sum ascer- tained at the time to be due the Bank and which had been long since paid, neither the Bank nor the endorsers of Sanderson's paper could •make it available for any subsequent labilities. Simultaneously with the issuing of the execution at the suit of the Bank, the other defendants whose judgments were subsequent to those index. xvii of the plaintiffs, had executions placed in the Sheriff's hands hy Mr. Grantham who was the attorney by whom all the executions were issued, with instructions to levy for the amount of them on Sanderson's real estate, and the land was advertized by the Sheriff as one sale, the advertisement being headed in all the causes of the several defendants, including the Bank. ' Held, that under the circumstances, the sale being under the direction 01 Urantnam, the attorney in all the causes, the plaintiffs were justified in making the encumbrancers subsequent to the Bank defendants in this suit. Otherwise, possibly, if those subsequent encumbrancers had not connected themselves with the Bank, but had advertized the sale under their respective judgments, subject to prior encumbrances Injunction to stay the sale until the validity, or otheiwise, of the judg- ment at the suit of the Bank was settled, continued, but only on the condition that the plaintiffs should give an undertaking to bring on the case for trial at the next term of the Supreme Court in the County, or that their bill be dismissed. Costs decreed against the Bank, but not as against the other defend- ants. Moody et al. v. Bank of Nova Scotia et al , 129 2. Plaintiff applied for an injunction to restrain defendant from selling or etherwise disposing of lumber of which he claimed to be owner under an alleged purchase from the company, the validity of which was dispu- ted. The injunction was refused, plaintiff having an adequate legal remedy at Common Law by actions for damages. Moren v. Shelburne Lumber Company et al 134 3. Where the defendant had no drain leading from his premises to the common sewer on the street, and the plaintiff prevented all access to a drain on his own property through which the water might flow to the sewer from defendant's property, but defendant proved no title or right to use such drain, the Court granted an injunction to restrain defendant not only from permitting his waste water to flow on plaintiffs property, but from receiving water from the city water works until a suitable drain was constructed, the evidence showing that the introduction of such supply, in the absence of a suitable drain, occasioned an overflow on plaintiff's premises. Mott v. Burns 135 4. Plaintiff, as assignee of E. W. Chipman, under the Insolvent Act, obtained an order to restrain the Sheriff of Annapolis from selling under execution personal property of the insolvent, which he claimed had passed to him under the assignment, said property having been allowed by the assignee to remain in the hands of the insolvent, who had removed it to Annapolis, where it was levied upon. Held, that, as the remedy of the assignee by action at law, assuming the levy and proposed sale to be unjustifiable, was complete, the restraining order must be discharged. Troop v. Bonnett et al 186 5. Where trustees, having power to sell a mining property conveyed to them by way of mortgage to secure the payment of interest on bonds issued by the Mining Company, the principal of which was not yet due, advertised the property for sale, instead of proceeding by way of fore- closure, and the plaintiffs, who had the equity of redemption, although aware of the intention to sell, delayed seeking the information necessary to enable them to prevent a sale to their injury, and applied for an injunction only two days before the day of sale, the Court granted the injunction upon payment by the mortgagors of the interest on the out- standing bonds, and their undertaking to pay the expenses incurred in preparing for the sale. Wood et al. v. Hare et al • 20 1 XV111 INDEX. 6. Plaintiff, in his writ, sought to have a judgment, entered against him in the County Court upon a confession , signed by him when under the age of twenty-one, declared null and void, and moved for an injunction to restrain a sale under execution, upon affidavits verifying the state- ment contained in the writ, that the warrant of confession on which the judgment was entered had been procured from him by deceit and imposition. No foundation was shown for this statement. Held, that the defendant could not be restrained, first, because of the falsity of the material statements on which the injunction was prayed for ; secondly, because there was an adequate remedy at law by setting the judgment aside; and, thirdly, because the injunction was not specifically prayed for, and could not be granted under the general prayer for relief. McKinnon v. Mc Dougall 342 7. Plaintiff claimed to be entitled to $80,000 bonds on the Eastern Extension Railway, to be secured upon the Pictou Branch road in the event of its being transferred to the defendant Company as a subvention in aid of the construction of Eastern Extension. The defendants were applying for legislation which should provide that in the event of the road not being operated to the satisfaction of the Governor-in-Council of the Province, it should become the property of the Province free from encumbrance. Plaintiff, contending that this would invalidate his bonds and was a breach of a compromise made with him, sought to restrain the defendants from applying for such legislation. Held, that, as the purpose of the concession was to secure the con- struction and continued operation of the road, and the proposed legis- lation contained a proviso that the trustees of the bondholders should have notice before any forfeiture of the road, that was all they had a right to expect, and the plaintiff was not entitled to the injunction prayed for. Gregory v. Canada Improvement Co.etal 358 8. The defendant, Cameron, agreed to sell to plaintiff a farm in Char- lotteburg, Ontario, for 845,000, subject to a mortgage for $14,000. The plaintiff, in consideration, was to assume the $14,000 mortgage, and convey certain gold mining areas and other property to defendant, at the sum of $20,000, and for the balance of $11,000 he was to convey to defendant his dwelling house at Truro. The defendant obtained a transfer of the areas under circumstances as to which the affidavits were contradictory ; but it was uncontradicted that the title to the real estate which he was to convey to plaintiff was encumbered to the extent of $15,000 more than had been represented. Plaintiff having obtained an injunction to restrain defendant from working the areas, Held, that, assuming the statements of the defendant to be true as to the way in which he obtained the transfer, there was a serious question to be submitted to the Court, whether the defendant was justified in recording it and claiming the areas, and that the injunction could not be dissolved. Held, further, that the injunction would not be disturbed on account of misrepresentations in the affidavits on which it was obtained, unless the case were such that if the facts had been stated accurately, the injunction would have been refused. Caffery v. Cameron et al 370 9. Plaintiffs claimed to be entitled to fish in a certain berth, under regulations made by the Sessions on the authority of an Act of the Legislature. Under the evidence, the Court inferred that defendants were authorized by the plaintiffs to shoot their seine,— plaintiffs to have half the fish caught,— and having done so the defendants secured a catch of fish, of which plaintiffs claimed half under the agreement. Held, that the plaintiffs were entitled to half the fish caught, and that the relief which they sought, namely, that defendants should deliver to INDEX. Xix them their share of the proceeds or account to them, and in the mean- time should be restrained from selling, &c , was properly sought in this Dogerty et al. v. Powet etal 419 10. The owner of land leased a parcel to plaintiff, for the purpose of erecting a lobster factory, for the term of five years. About a twelve- month afterwards the defendant, Shedd, applied for a lease of the same land for a similar purpose. Defendant admitted that when he had part of the materials on the ground for the erection of his building plaintiff forbade him to proceed, and asserted his right to the land, and, although it was alleged in the answer, the evidence did not justify the conclusion that plaintiff had ever abandoned his right under the lease or contem- plated doing so. Held, that plaintiff was entitled to have an injunction to restrain defendant from proceeding with the erection of the building, as the remedy at common law was not full and adequate, and it would be impossible for a jury to estimate the damages with accuracy. Mason et al. r. Shedd et al.... 478 See also McKay v. Sutherland 332 See also Griffin et al. v. Taylor 427 See also Fraudulent Conveyance, 2. INJUNCTION to restrain action at law. ' 1. Mitchell sold property to Dodge for $16,000, which plaintiffs purchased from Dodge for $20,000. The property was subject to a mortgage made by Mitchell to Davis, who assigned it to Sterling, and it Was agreed between Dodge, Mitchell and the plaintiffs, that Mitchell should take up the mortgage, and that plaintiffs should pay Dodge $5000, give him notes for $2000, and make » mortgage to Mitchell for the balance of $13,000, payable in instalments, for which notes were also given to Mitchell. In the mortgage made by plaintiff to Mitchell it was provided that the latter should pay off the mortgage made by him and assigned to Sterling, and that until it was paid off Mitchell should only receive from plaintiff the difference between the interest on Mitchell's mortgage assigned to Sterling, and that until Sterling's mortgage was paid, plaintiffs should not be liable for anything but the difference between that mortgage and their mortgage to Mitchell. Defendants Wier and White obtained from Mitchell an assignment of plaintiffs' mortgage and notes as security for a debt, after which Mitchell became insolvent, defendant Graham becoming his assignee, and Ster- ling's mortgage was foreclosed, and the property sold. Wier and White obtained a resale on giving a bond to the assignee to bid the property up to $11,300. Wier and White purchased the property for $8520, and an action was brought on the bond, to which they pleaded that the balance had been credited to Mitchell, by agreement, on account due White. Plaintiffs paid on the mortgage to Mitchell $2250 besides interest, and took up three notes for $750 each, when Wier and White commenced action against them to recover the amount of two other notes for $750 and $500 respectively. Held, that Wier and White should be restrained from further pro- ceeding in the action to recover the amount of the notes, and from transferring the remaining notes, the difference between plaintiff's mort- gage and the mortgage assigned to Sterling being more than covered by the amount paid by plaintiffs, and the amonnt credited by Wier and White to Mitchell on the purchase at the Sheriff's sale under foreclosure. Stephens et al. v. Wier etal 1"3 XX INDEX. 2. The defendant J. C. S. Miller, mortgaged certain property to W. 0. King, whose executors foreclosed the mortgage, J. W. King, the survi- ving executor of the mortgagee becoming the purchaser at the Sheriff's sale. Defendant remaining in possession of the mortgaged premises, a rule nisi was granted for a writ of assistance to put the purchaser in possession. No cause being shown, the rule was made absolute, and a writ issued, under which the property was delivered to J. W. King. Defendant then brought an action of trespass against the Sheriff and J. W. King, whereupon a rule nisi was taken for an injunction to restrain the action. Defendant opposed the rule, contending that the property of which he had been in possession was not included in the mortgage, hut after a full hearing of the cause, the rule for the injunction was made absolute. J. W. King then put the plaintiff, Mosher, in possession of the land, and the defendant, J C. S. Miller, brought au action of ejectment, setting up the claim which this Court had previously decided against him, namely, that the 'ands claimed were not included in the mortgage. The present suit having been instituted to restrain that action. Held, that the defendant could not reso-t to the action of ejectment at common law, and there claim the land to which this Court had decreed that he was not entitled, and that the action must be restrained. Mosher v. Miller 279 See also .Practice — Discovery. INSOLVENT ACT. 1. Writs of attachment against the mortgagor, as an absconding debtor, were issued, and delivered to the Sheriff on May 20. An appraisement of the mortgaged premises was made, and copies of the writ, with the appraisement and description of the land, were registered on May 21. On the same day a writ of attachment, under the Insolvent Act of 1869, was taken out against the mortgagor, but was not delivered to the Sheriff until after he had registered the documents connected with the proceedings under the Absconding Debtor's Act. Held, that the claim of the Assignee of the estate, to the surplus proceeds, must prevail over that of the attaching creditors. Section 24 of Chap. 79, R. S., is controlled by the Insolvent Act. Almon et al. v. Gray et al 6 2. J. T. F. & Co., being indebted to the plaintiff, gave, as collateral security, a mortgage which they were to receive on a vessel being built by McK. & V , debtors of theirs in Prince Edward Island. The arrangement was made October 19, 1875, and on the same day J. T. F. & Co. wrote to plaintiffs, enclosing a draft on H. & Co., Liverpool, at ninety days, for £ 1 ,000, stating that the same was drawn against pro- ceeds of the vessel, which was to be sold in Liverpool, G. B., by H. & Co., and concluding; " The above vessel is herewith pledged to you for the due payment of said Bill of Exchange, as well as for payment of the obligations of McK. & V." J. T. F. & Co. then proceeded to Prince Edward Island, to obtain the mortgage ; but previous to its being delivered to plaintiffs, they had, on the 12th November, caused a demand of assignment to be served on J. T. P. & Co., and the plaintiffs' manager, when the mortgage was afterwards tendered to him, said it should have been made to the Bank, instead of to J. T. F. & Co., and handed it back to J. T. F., who gave it to the Assignee. On the 15th November J. T. F. & Co. made an assignment, under the Insolvent Act, and on the 27th November, the Bill of Exchange, for £1,000, was pre- sented and dishonored. The vessel was sold for more than £1,000, by the Assignee, who retained the proceeds. Plaintiffs claiming to have an equitable lien on the mortgage for the amount of the Bill of Exchange, and of an unpaid note of McK. & V., endorsed by J. T. F. & Co., ' INDEX. XXI Held, that, although, if the proceedings were between the plaintiffs and J. T. P. & Co. alone, the latter might be estopped from resisting the claim of the plaintiffs, on the ground that they had no title to the vessel at the time they pledged her ; yet, under the provisions of the Insolvent Act of 1875, Sec. 118, the pledge or lien, if it could otherwise have been effective, was rendered null and void, a demand of assign- ment, followed by an asignment, having been served within thirty days after the pledge was given, and the plaintiffs, (upon whom the burden of proof lay under that section,) not having shown that the pledge had not been made in contemplation of insolvency. BankofB.N.A.v. Worrall 12 3. The Messrs. Pryor, in December 1872, of their own accord, signed and sealed a mortgage, whereby defendant was to be secured from loss on endorsements ot their paper ; but defendant did not become aware that such a mortgage had been made until some time in 1874, and his information then was not derived from Messrs. Pryor or any person authorized by them. The mortgage was not recorded until March 20, 1875, when the Messrs. Pryor knew they would have to go into bank- ruptcy, and on March 22', 1875, they made an assignment under the Insolvent Act of 1869. Held, that the mortgage was void, being made in contemplation of insolvency. Lordly v. Yeomans 113 4. Crowe, as judgment creditor of the insolvent McLellan, filed a claim for the lull amount ot his judgment, stating that he held such judgment • as security, but could give no estimate of its value, and ranked on the insolvent estate for the full amount of the judgment. Previous to the insolvency he had assigned the judgment to McDonald & Witt, who acted as his solicitors in the filing of the claim. Held, that by claiming for the whole amount of the judgment without putting a value upon it as required by Section 60 of the Act, Crowe had practically abandoned his security, and McD. & W. could not succeed in the present application, which was for surplus proceeds on foreclosure and sale. Sherlock v. McLellan ,. 165 5. Plaintiffs, as assignees under the Insolvent Act, sought to have certain mortgages decreed to be void, which were made by the defendant Smith, within thirty days of demand made on him to assign, followed by an assignment. The evidence was conflicting, but the Court drew from it the inference that Smith, finding himself in difficulties, applied to the Bank for S3000, in the belief that, if obtained, it would enable him to arrange with his more pressing creditors and avert the insolvency which must otherwise ensue ; that the agent of the Bank first led him to believe that the advance would be made, but the directors refused, and, instead of making the advance, required the mortgages to secure existing liabilities ; that defendant consented to make them, encouraged by the agent to believe that if he did so further accommodation would be afforded, but the Bank, having secured itself and considering that further accommodation could not safely be afforded, declined to make any further advance and insolvency ensued, as Smith had anticipated. At the time the mortgages were given, the insolvent's paper was lying over- due in the Bank, and the agent of the Bank, on the execution of the mortgage, told him that he could not expect an advance till after the expiration of thirty days. Plaintiffs having sought relief, first, on the ground that the mortgages were made in consideration that the Bank would advance $3000, which would have prevented insolvency, and secondly, that they were given in contemplation ot insolvency, and with intent fraudulently to impede and delay creditors ; Held, as to the first ground, that the consideration must be obtained from the language of the instruments, which referred to existing indebt- edness and not advances, and that Smith could not be heard to allege XX11 INDEX. differently ; but that on the second ground the mortgages must be decreed 10 be void as against the plaintiffs and creditors of the insolvent. Objection was taken that the requisition upon Smith to assign was informally made, the affidavit on which it was based being liable to a technical objection. But, an assignment having taken place under it, and no objection having been made to it in the Insolvent Court, which had proceeded to settle the estate ; Held, that it was not for a third party in a different Court to call in question the regularity of its proceedings. Semble. Even before the amendment of sec. 133 of the Insolvent Act of 1875, by the insertion of the words prima facie, CCap. 41 of 1877,) the presumption of fraud couid be rebutted. Longworth et al. v. Merchants' Bank of Halifax et al 255 6. Parker & Grant having recovered a verdict against Fairbanks, a rule nisi was taken out to set it aside. T. & E. DeWolf & Co. became sure- ties to respond the final judgment and took a mortgage from Fairbanks to secure them from loss on account of their bond, and also to secure the amount of an existing indebtedness. The rule nisi having been dischar- ged and judgment entered up against Fairbanks, an execution was issued under which he was arrested and placed in custody. While he was in custody, and after the present suit was brought by plaintiff as assignee of De Wolf & Co. against Fairbanks, to foreclose the mortgage, and after said Fairbanks had answered, his estate was placed in insolvency, and Creighton, his assignee, intervened and became a party. Parker & Grant also became parties as interested in the subject matter. Held, first, that the insolvency of Fairbanks did not prevent the plain- tiff from proceeding with the foreclosure, and, secondly, that Parker & Grant had not lost their lien on the mortgaged property, in consequence of their having arrested Fairbanks under the judgment. Tucker v. Creighton et al 261 7. The insolvent, T. J. B., being indebted to the Merchants' Bank, instructed the cashier of the Railway Department, by letter, dated Oct. 22nd, to send to G. M., the cashier of the Bank, any cheque coming to him from the Department. On Nov. 7 a cheque for $691.76, payable to the ord ;r of the insolvent, was enclosed in a letter, addressed to the insolvent, care of Merchants' Bank. The agreement between the insol- vent and the cashier of the Bank, when the letter was written, was, according to the evMence of the former, that the Bank should have $300 of the money, according to cashier's evidence, 8350. The cashier opened the letter and endorsed the cheque, " T. J B.per G. M., agent. For Merchants' Bank of Halifax. Guaranteed. G. M., cashier." The writ of attachment against the insolvent was issued January 18, 1879. Held, that the cashier had no authority to open the letter or endorse the cheque, but that the Bank was entitled to retain the $300 as agreed upon ; that this amount could not be recovered by the assignee under the 130th section of the Act, which had no reference to a case like this, nor under the 134th section, as that was confined to payments made within thirty days of the insolvency. Creighton v. Merchants' Bank of Halifax 437 8. Plaintiff sought to set aside a judgment entered on a confession as made in contemplation of insolvency ; but the judgment creditor alleged and it appeared in evidence that the confession was taken only to indemnify the judgment creditor against loss on accommodation endorse- ments to be thereafter given, which were given. Held, that, although the judgment debtor was in insolvent circum- stances at the time of giving the confession, the judgment could not be impeached, section 89 of the Insolvent Act of 1875 referring only to securities given for pre-existing debts or liabilities. Kinney v. Ryerson etal 488 9. Plaintiff, as creditors' assignee, sought to set aside a judgment given by confession by two alleged co-partners, as made in contemplation of index. xxiii insolvency. Defendant denied that plaintiff was assignee, and it appeared that at a meeting of creditors there was only one person who had filed a claim, and his claim was without a voucher, yet, instead of abandoning the meeting as a failure and calling another, giving due notice, the meeting adjourned to another day, on which the plaintiff was appointed assignee. _ Held, that the appointment was invalid, that the proceedings could be impugned without going into the Insolvency Court, and that the defend- ant's denial that plaintiff was assignee as alleged obliged him to prove Beulair v. Gilliott, (referred to in 1 R. & C, 264,) questioned. Brown v. Pearman 491 See also Parties. See also Practice — Supplemental Bill. INSURANCE, MARINE. 1. Plaintiff, a member of the firm of Black Bros & Co., took a mortgage of a vessel which was given by defendants for outfits supplied by that firm, and a policy of insurance was effected to secure the payment for the outfits. The vessel was lost and plaintiff received the insurance, which he credited in account with one Malcolm, to whom he had agreed to sell 36-64 shares in the vessel. Held, that the amount received from the insurers must go to the credit of the mortgage. Troop v. Mosiei et al 189 2. Plaintiff filled up an application for a policy of marine insurance, describing the risk thus : " Voyage at and from Block House Mines to Montreal ; vessel arrived at Sydney 2nd August ; on chartered freight $3000." The defendants being authorized to effect the insurance, inserted in the policy without plaintiffs' privity the words, " beginning the adven- ture upon said fieight from and immediately following the loading thereof on board." The vessel was lost at Block House Mines before she. commenced taking her cargo on board, and plaintiff first became aware of the insertion of the last recited words in the policy on being informed that the Company did not hold themselves liable. Held, an action having been brought to reform the policy, that the plaintiffs had a right to assume that the Company in preparing the policy would strictly adhere to the terms in the memorandum, that had the policy been so prepared, the plaintiff would have had a right to recover under it, and that it must therefore be reformed accordingly. Wylde et al. v. Union Marine Insurance Co 203 3. Joseph Binks, one of the plaintiffs, applied for a policy of insurance on the Brigantine Sophia by filling up a printed form. " J. Banks and others " were entered as owners, and the " hull and materials " filled in as what was to be insured ; and the application, after the printed words " effect the above on account of," was signed, " Joseph Banks." The policy issued by the Company purported that Joseph Banks did make assurance, &c, but the words, "or whom it may concern," were not inserted in the policy. The vessel being lost the plaintiffs, as owners, brought action on the policy, the claim being resisted on the ground that there was not a total loss, but on the trial the objection was raised for the first time by the defendant's counsel, that the policy covered only the interest of Joseph Banks. Plaintiffs then brought suit in the Equity Court to have the policy reformed on the ground of mistake, and issues were settled by the Equity Judge and tried by a jury, who found that there was a mutual understanding between the parties which the policy, as executed, did not carry out, and that, to do so, it .vould require to be altered by inserting the names of the other registered owners ; which finding there was evidence to justify. Held, that the policy must be reformed so as to cover the interests of all the owners. Banks et al. v. Wilson 210 100 xxiv INDEX. ISSUES, Practice on Trial of. See Practice — New Trial. JOINT STOCK COMPANIES. 1. Proceedings were taken under an Act of the Provincial Legislature to wind up the company on the ground that it was heavily embarrassed and could not extricate itself without having recourse to the double liability of the shareholders. The act of incorporation provided that transfers of shares should be valid and effectual for all purposes from the time they were made and entered in the books of the company. Three of the shareholders claimed that they were not eontributories on the ground that certificates of stock were never accepted by them, but it appeared that the certificates were issued to them by direction of the former stockholder from whom they were transferred, that this was appioved of by the directors, and the certificates were handed to the transferor, and afterwards received by two of the transferees, who were registered as stockholders in the company's books, and never repudiated the transaction. The third transferee was also registered, and was elected a director previous to his repudiating the transaction, which he did not do until after it became apparent that the affairs of the company were embarrassed. Another class of stockholders claimed to be exempt on the ground that they had surrendered their shares ta the company. This surrender had been made and accepted by the company, but the parties surrendering knew that the affairs of the company were embar- rassed, and it was with a view of escaping liability that the surrenders were made. Held, that the provisions of the act were within the legislative authority of the provincial legislature, and that neither class of stockholders could be exempted from contribution. Held, also, that where there was no registration on the books, and the party sought to be made liable had never deemed himself absolute owner or acted as such, there was no liability. In i e The Wallace Huestis Grey Stone Co 461 2. The petitioner, as administratrix, recovered judgment against the Halifax Yacht Club, and issued execution, which was returned unsatis- fied, there being no assets. She then resorted to the individual liability of the corporators under Revised Statutes, chapter 53, section 13, but the Supreme Court decided that the section did not apply to such a corpora- tion. Petitioner 'then applied to have the affairs of the company wound up. Held, that the Provincial Act in reference to the winding up of compa nies, differing from the English Act in that it was made expressly appli- cable to clubs, could be invoked for the purpose of winding up the Halifax Yacht Club, but that, as there was no indivi ,ual liability, and it was admitted there were no assets, the prayer of the petition should not be granted, as it would only create needless litigation. In re The Halifax Yacht Club 475 JURY, Finding of ignored. See Foreclosure, 4. LABEL. The imitation of labels and wrappers whereby the public are misled and the plaintiff injured will be restrained as a fraud upon him, and though an imitation will be deemed colorable if it be such that a careful inspection is required to distinguish it, yet a Court will not interfere when ordinary attention would enable a person to discriminate. It is not enough that a careless, inatteniive or illiterate purchaser might be deceived by the resemblance. Johnson et al, v . Parr 98 INDEX. XXV LAND, Sale of. See Sale under Foreclosure. LEGISLATIVE AUTHORITY. See Joint Stock Companies, 1. See also Ultra Vires. LICENSES TO SEARCH. See Mines and Minerals. LIEN FOR RENT. In re O'Mullin §• Johnstone 157 LIMITATIONS, Statute of. 1. Allan McKav conveyed property to plaintiff by a deed, absolute in its terms, but admitted to have been given as security for a debt. Nothing was paid on account of principal or interest by the mortgagor or his heirs, for a period of over twenty years before suit to foreclose, but within that period an action of ejectment had been brought to recover possession, in which a judgment was obtained, a record filed and a writ of hab.fac.pos. issued but not executed. Held, that these proceedings prevented the statute of limitations from operating except from the judgment. McKeen v. McKay 121 2. Plaintiff brought action in 1873 to enforce payment of S400 and inter- est for land alleged to have been purchased by defendant, the deed being made out to defendant's brother and left with a third party, to be deliv- ered to defendant on his handing him a note for the purchase money signed by himself and his brother. Defendant, in his answer, contra- dicted all the statements in the writ, and set out that the sale was made directly to his brother, though he admitted that he would have assisted him by joining a note for the purchase money. The evidence was con- flicting, but the alleged agreement having been marie in 1876, the Court held that the delay in sueing was itself a bar 10 the action, if, as plaintiff contended, the agreement was to be considered as the original undertaking of the defendant, while,on the other hand,il it was to be viewed as a gua- rantee, the statute of frauds prevented a recovery. Waterman v. Will 197 MANDAMUS. The defendant Company obtained an Act enabling it to maintain a line of horsecars in the City, but requiring it to provide rails of the most improved pattern, and lay "them even with the surface of the streets, so as not to interfere with the passage of vehicles, and to keep the roadway in repair within the track and three feet on each side. Defendants having ceased to operate the line, the roads fell out of repair and the rails pro- truded. After the commencement of this suit, which was for a manda- mus to compel the defendants to have the rails laid even with the surface, and to put the roads in repair as required by the Act, the City authorities in many instances covered the streets on which the rails were laid with stones. Held, that the City had a right to proceed by mandamus, and was not obliged to resort to an indictment of the nuisance, or to proceedings to XXVI INDEX. fine the defendants tinder the Act of 1870, Cap. 99, for violation of the provisions of their Act oi Incorporation, neither of these courses pre- senting a remedy as beneficial as the proceeding by mandamus, but that the mandamus must be limited in its operation to those streets on which the railway had not been covered by the City authorities, as the action of the City in this respect had imposed an unreasonable burden upon the Company in removing the stones. The City of Halifax v. The City Railway Co 319 MINES AND MINERALS. A license to search for minerals o ther than gold, was granted to the relators under Sec. 86 of Cap. 9, R. S., to expire 21st May, 1874. Pre- viously to its expiration, four other licenses to search over the same area were granted to the relators, which were to expire respectively, 22nd May, 1875 ; 23rd May, 1876 ; 26th May, 1877 ; and 27th May, 1878, the area containing only four and a quarter square miles. On the 28th May, 1877, defendants, having a license to search over an area overlying in part the area of the relators, applied for a license, which was afterwards granted, to work one square mile partially overlying and including within its boundaries the area under license to search to the relators. An order nisi having been taken to restrain defendants from interfering. Held, that over the area of four and a quarter miles first above refer- red to, not more than four valid licenses to search could be granted under K. S. Cap. 9, Sec. 91, that the relators' fifth license to search, which was to expire May 27th, 1878, was invalid, and that on the 28th May, 1877, there was no obstacle to the defendants' obtaining the license to work granted to them. Obiter dictum ; that it was no objection to the license to work that it was taken out in the name of only one of the defendants, Fraser, for their joint benefit; all the defendants having had an interest in the license to search, although taken out in the name ot Fraser only. The Attorney-General v. Fraser et al 275 MINING VENTURE, Partnership in. See Partnership, 1, 2. MISTAKE. 1. Plaintiff and defendant, in settling their affairs on dissolution of their co-partnership, entered into an accounting by which it was shown that plaintiff had drawn $318.86 from the partnership funds in excess of the sum drawn by defendant, which defendant contended was due from plaintiff to him, but which plaintiff insisted was due to the partnership, so that only half the amount was due to defendant. Plaintiff finally yielded to defendant's contention, and paid over the money. Becoming satisfied afterwards that his own view was correct, he brought action, after the lapse of about a year, to recover the amount improperly paid over. Held, that having paid over the money with full knowledge of the tacts, the very point now in controversy having been discussed at the settlement, the plaintiff could not, after the lapse of a year, during which he had carried out in all respects the settlement agreed upon, apply to have the mistake corrected. Misener v. Gaston 125 2. Plaintiff instructed his brother to purchase certain land for him, the deed to be taken in the brother's name, but in trust for the plaintiff for life, after his death for his children, and in case of his death and the death of his children, in trust for his wife. The land was purchased and plaintiff paid the amount ot the purchase money, but the deed was made out to the brother in trust to pay the proceeds to plaintiffs son, then living, and in the event of his death to other sons, &e. Plaintiff went INDEX. XXVli into possession and lived on the premises without any intimation that he had not a right to do so, and did not discover the omission of the trust for his own life till after the death of his brother, being an illiterate man and not having ever learned the contents of the deed. His evidence as to the intention was uncorroborated and uncontradicted. Held, that the plaintiff was entitled to have the deed rectified. Hogan v. Hogan. 334 jb'ee also Foreclosure. MISTAKE in Award. See Arbitration, 2. MONEY RECEIVED to use of Plaintiff. Plaintiff set put an assignment to him of logs, which, when sawed, the assignors, in contravention of the assignment, shipped to Stayner; an agreement with Stayner to indemnify him from loss and account for the proceeds in the same manner as if the lumber had been shipped to plain- tiff under the assignment; a receipt by Stayner of money on account of the lumber for which he refused to account. Defendant denied the alle- gations in the writ, but the Court sustained the plaintiff's view of the case on the evidence. Held, that plaintiff was entitled to an account, and that the proceedings were properly instituted in the Equity Court. Mathers v. Stayner etal 451 MORTGAGE of unwanted Crown Lands. Thomas and John Archibald mortgaged to plaintiff two third parts of several lots of ungranted crown lands applied for and paid for by Eller- hausen and others the right to receive which was by them transferrred to the St. Croix Manufacturing Company, (said Archibalds having become interested to the extent of two third parts.) Before the grants were taken out the Archibalds became insolvent, and defendants, as trustees for the creditors, procured said grants of lands based on the original application, but they selected the lots in localities somewhat different from those indicated in such application. Held, that plaintiff had a lien on two-thirds of the land comprised in the grants for the debt intended to be secured by the mortgage, and that an order must pass that the amount thereol should be paid to him, other- wise said two thirds of the land to be sold to satisfy plaintiff's claim. Stephens v. Twining et al 176 MORTGAGEE, Insurance for benefit of. Plaintiff mortgaged certain property to C. for $434.50, and covenanted in the mortgage to keep it insured for $500 in the name and for the benefit of the mortgagee. Subsequently, plaintiff effected insurance to the amount of S570 on his own account, without reference to the mort- gagee, $180 of which was on the personal property, not covered by the mortgage. After loss by fire the mortgagee, finding that the insurance was not in his name, demanded an assignment ®f the policy, offering to secure to plaintiff the amount due him, and upon his refusal, claimed the amount from the company. Defendant paid the $180 and, upon action brought for the balance, an interpleader order was made. Held, that the insurance enured to the benefit of the mortgagee, and that he was entitled to interplead, although the claim of the mortgagee was an equitable claim, and the company was under a contractual obligation to the plaintiff, and although the claim of the mortgagee was smaller than the amount insured. McKenziev.jSltna Insurance Company 3 * 6 XXV111 INDEX. NEW TRIAL. P. McDonald, deceased, made a mortgage to plaintiff which plaintiff brought suit to foreclose. Defendants set out an agreement by which plain- tiff agreed to relense the mortgage on receiving three promissory notes made by one McKinnon, to whom part of the land had been sold by the mortgagor. Plaintiff replied that the notes were only taken as collateral security, to be credited to the mortgagor when paid, and that nothing had been paid on account of them. On the trial of the issue, plaintiff proved the mortgage, and defendants produced no evidence whatever. Trie jury found for defendants. Held, that the burden of proof of the issue raised was on the defen- dants, and that as they had proved nothing, the finding must be set aside. Murray v. McDonald et al 1 42 See also Practice — New Trial. NUISANCE. See Mandamus. PARTIES. 1. Plaintiff in his writ, set out among other things, that defendant and himself were engaged in a co-partnership as Attorneys, &c, from Sep- tember 1866, to December 1871, that in 1867 one Kirby informed them that a certain coal area would be vacant, and asked them to join with him in applying for it, as he anticipated trouble in getting it, and wanted assistance, to which they agreed, the license to search being taken in the name of the defendant, who held it for the benefit of said Kirby and the said firm (the respective proportions being set out in the writ) ; that after- wards defendant obtained with the same consent, and for the benefit of the same parties, a license to work, the fee therefor being paid Out of the part- nership funds ; that a renewal of the license to work was afterwards obtained by defendant, and before the expiration of the renewal, and after the dissolution of the co-partnership, defendant, without consulting plain- tiff, and without his knowledge, obtained a lease of the area in conjunc- tion with said Kirby, and refused to recognize plaintiff's claim to any interest therein. Held, on demurrer, that it was not necessary that the agreement in respect to said area be alleged in the writ to have been in writing ; that Kirby mentioned in the writ was not a necessary party, as no complaint had been made against him, no relief was sought from him, and no decree could be made acainst him ; and that the facts set out constituted a good ground for the relief sought lor by plaintiff, as, assuming the statemints in the writ to be true, the defendant was a trustee for the plaintiff to the extent of plaintiff's interest in the area. Eaton v. Weatherbe 48 2. Objection having been taken that certain proceedings (see case cited mfra) should have been by information in the name of the Attorney General, Held, that the plaintiffs had rightly proceeded by the writ substituted in this Court by statute for the bill in Chancery, and that although the writ stated that plaintiffs were acting on behalf of all the Presbyterian members of the congregation, even that was not necessary, as they might under B. S. Cap. 95, Sec. 19, have maintained the suit on their own behalf alone. The statement was made in two writs that by certain legislation the title to certain lands in question was vested in the Presbyterian Church of Canada, but the legislation referred to did not affect the title to the pro- perty in question in the suits. Defendants not having demurred to the writ. Held, that they could not reasonably ask to have plaintiffs turned out of Court because the Presbyterian Church was not a party to the suits when the Court was satisfied that it could not be made a party, and that the proper parties were before the Court. Douglas et al. v. Hawes et al 147 INDEX. XXIX 3. Matthew Chisholm mortgaged land to Archibald and James Chis- holm, the former of whom assigned his interest to plaintiff,, who brought suit to foreclose the mortgage against Matthew Chisholm alone. Subse- quently the writ was amended by making Archibald and James Chisholm and John T. Smith defendants, the latter having taken an assignment, of the mortgage from Archibald and Jamos Chisholm sub- sequently to the assignment by Archibald Chisholm to plaintiff. Held, that Archibald Chisholm, having a separate interest, had a right to assign it to plaintiff, that although plaintiff could not sustain his suit as originally brought against the mortgagor alone, the writ, as amended, brought all the parties interested belore the Court, and that although the ordinary course would have been to make Smith a co-plaintiff, yet as he denied plaintiff's rights under the assignment, he had been properly made a defendant. Sibley v. Chisholm et al , 167 4. McDonald & Baker having a lien on property of the insolvent defen- dent, under a recorded judgment, a suit was brought by them as co-plaintiffs with the assignee to set aside a judgment next previous to theirs, alleged to have been fraudulently obtained. Held on demurrer, that said McDonald and Baker had been properly made parties to the suit, and that although under the Insolvent Act (1875J the assignee h;id the exclusive right to sue for the rescinding of instruments made in fraud of creditors generally, and should then be the only plaintiff in the suit, it was otherwise where the instrument was made in fraud of certain individuals irrespectively of the other creditors. Patterson v. Archibald etal 313 See also Moody v. Bank of Nova Scotia et al 129 PAETIES, Objection for want of. See Practice — Waiver of Objection. PARTNERSHIP. 1. Plaintiff, in his writ, set out among other things, that defendant and himself were engaged in a co-partnership as Attorneys, &c, from Sep- tember, 1866, to December, 1871; that in 1867 one Kirby informed them that a certain coal area would be vacant, and asked them to join with him in applying for it, as he anticipated trouble in getting it, and ■wanted assistance, to which they agreed, the license to search being taken in the name of defendant, who held it for the benefit of said Kirby and the said firm (the respective proportions being set out in the writ) ; that afterwards defendant obtained, with the same consent, and for the benefit of the same parties, a license to work, the fee therefor beirg paid out of the partnership funds ; that a renewal of the license to work was after- wards obtained by defendant, and before the expiration ot the renewal, and after the dissolution of the co-partnership, defendant, without consult- ing plaintiff, and without his knowledge, obiained a lease of the area in conjunction with said Kirby, and refused to recognize plaintiff's claim to any interest therein. 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