Cases argued and determined in the Supreme court of Nova Scotia

he applied for its confirmation, plaintiffs attempted to amend their affi
davit of claim against the partnership so as to disclose the security,
but the affidavit was not re-sworn. At the same time a claim was filed
against the individual estare. Defendant, by his deed, covenanted, in
consideration of the discharge, to pay a composition and give to each of
the creditors his promissory notes secured by names approved of by the
inspectors, but did not include plaintiffs' claim in his schedule, or make
or deliver any notes to them.

Held, that the claim was a claim "provable" against the defendant's
individual estate within the meaning of the Act, although the right to
prove had been lost by the failure to disclose, but that plaintiffs' claim
was not discharged, defendant having refused to make or deliver to
them the notes, and having treated plaintiffs as if they had no valid
claim against the estate.

JAMES, J., dissenting, held that the discharge was not conditional on
the notes being given, but absolute, and that it bound the plaintiffs.
Pictou Bank v. Fraser..

3. Objections to claim against insolvent estate dismissed where no evi-
dence was filed with the assignee of service of copy on the claimant.
Insolvent Act of 1875, sec. 95.

In re Morton.....

4. Plaintiff brought an action, February 20th, 1876, on two promissory
notes, with a count for fraud under section 136 of the Insolvent Act of
1875. Defendant had become insolvent in December, 1875, and obtained
from his creditors a deed of composition and discharge, which was duly
confirmed September 16th, 1876, previously to which date plaintiff had
accepted a composition on the notes sued on; but plaintiff had not
signed the deed. Defendant having pleaded March 8th, 1876, added a
plea September 25th, 1878, setting up the deed and the acceptance of a
composition, but did not plead the discharge puis darrein continuance,
his counsel apprehending that the effect of such a plea would be to con-
fess the fraud charged in the declaration. The cause was tried in
April, 1880, when a verdict was found for the plaintiff for the balance
of the notes sued on, but the jury acquitted the defendant of the
charge of fraud. Defendant then took a rule nisi to stay proceedings,
on the ground that the debt had been discharged.

Rale nisi discharged with costs. (Per RITCHIE, E. J.,-Held, that
the defendant could have pleaded the discharge puis darrein continuance,
with a simple protest that there was no fraud.)
Harrington v. Witter

5. Plaintiff sued on a note made by defendant to John T. Fraser for
$70 86, and endorsed to him. Defendaut pleaded a discharge in
insolvency, to which plaintiff replied that the debt had not been
scheduled in compliance with the act. The schedule contained the

following: "John T. Fraser's note $72 60."

Held, that the schedule did not sufficiently describe the note, which,
being negotiable, should have been scheduled as
the holder of which is unknown."

Hutt v. Sutherland .................

negotiable paper,

6. D. N. Shaw stored a lot of fish with defendants, which he afterwards
sold to Richardson, giving him a memo. headed "W. M. Richardson,
bought of D. N. Shaw," signed by the latter. Richardson paid half in
cash and gave Shaw a note for the balance, which was endorsed by
defendants, and retired by them at maturity. Richardson, after the
sale, became insolvent, and plaintiff, his assignee, produced at the first
meeting a memo. of assets, the first item of which was "236 bbls. of
mackerel stored at Black Brothers," defendants. One of the defend-
ants attended the meeting and saw the memo., remarking to those
present that he was not aware of any fish of Richardson's stored with
them, but he gave no such intimation to the assignee or inspector, and,

116

174

183

191

long after, the defendants made a claim on the estate for the amount
of the note, stating that they held no security, and a dividend was paid
them. The assignee having brought an action of trover for the fish,
recovered a verdict.

Held, that the defendants had no right to retain the fish, (no claim
ef lien having been set up,) and that by holding the note and claiming
for the amount on the insolvent estate, they would have lost all right to
retain possession of the fish if they ever had any such right.

Hart, Assignee, v. Troop et al..........

INSOLVENT DEBTORS, ACT FOR RELIef of.

The act of the Provincial Legislature, 1878, ch 8, providing for the
relief of debtors imprisoned on process out of the County Courts is
not ultra vires.

An action was tried in the County Court in February, 1878, before
the passage of the Act, against Commissioners, for discharging a debtor
imprisoned on process out of the County Court, but the judgment,
which was in plaintiff's favor with eight dollars damages, was not pro-
nounced until December, 1878, the act having passed in April, 1878, one
clause of which provided that no action in any Court should be taken
or sustained by reason of proceedings theretofore taken for the relief of
such debtors being illegal, invalid or void. An appeal from this judg
ment was sustained with costs, each party paying his own costs in the
Court below.

Johnston v. Poyntz et al

INSURANCE, FIRE.

1. Plaintiffs obtained $5,000 insurance on a mill and machinery from
defendant company, in addition to $4,000 insured in another office. In
a letter from plaintiffs to their agents in Halifax, they described the
mill and machinery as a good risk for $10,000, (for which they were
then instructing them to insure it), and estimated that it could not be
replaced for $15,000, although they had purchased it from a bankrupt
estate for $3,500. Plaintiffs' witnesses valued the property variously
from $12,000 to $20,000, and defendants called no witnesses as to the
value.

Held, that the verdict for plaintiffs could not be disturbed under this
evidence on the ground of a "false and fraudulent representation
that the property insured was worth $15,000, when its real value was
much less."

One of the conditions of the policy required the application to state
by whom the property was occupied, and whether any manufacturing
was carried on within or about it, and plaintiffs had described it as a
framed building, occupied as a water-power saw-mill. It had been built
about 1870, and worked for about four mouths in every year for three
years, from which time, until it was purchased by plaintiffs in December,
1877, it appeared to have been unoccupied and unused as a mill. When
plaintiffs purchased they immediately went into possession, and put
their servants in charge; but the mill could not at that season be
worked for want of water, even had it been in working order Soon
after purchasing they set about repairing the dam, which, when finished
in April, 1878, was carried away by a freshet, after which plaintiffs pro-
ceeded to build another dam, abondoning any idea of working the mill
until the increase of water in the autumn. The mill was destroyed by
fire in July, 1878. A further condition rendered the policy void for
misrepresentation or concealment touching the risk.

Held that the condition as to defining the occupacy and use had been
sufficiently fulfilled by the application, which stated accurately the pur
poses for which the building was erected and intended to be used, and

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193

for which it was then used, as far as the season of the year would per-
mit, and that there had been no such concealment as to avoid the risk.
McGibbon et al. v. Imperial Fire Insurance Co........

2. A condition in plaintiff's policy of insurance required the certificates
of two magistrates most contiguous to the fire to be delivered within
fourteen days after loss, and provided that if the claim should not, for
the space of three months after the occurrence of the fire, be in all
respects verified in manner aforesaid, the assured should forfeit every
right to payment or restitution, and time should be of the essence of
the contract.. A verdict was found for plaintiff in April, 1877, which
was set aside after argument had in February, 1878, on the ground that
the certificates of the nearest magistrates had not been produced.
Plaintiff then procured certificates from the nearest magistrates.

Held, that this was no compliance with the condition, and plaintiff
could not recover.

O'Connor v. Commercial Union Assurance Co.

INSURANCE, LIFE.

....

day of

..... ...

......., agent at
187...

An action was brought on a policy of life insurance on the margin
of which was a blank memo. as follows: "This policy is not valid
unless countersigned by.
Counter-
signed this...
Agent." The
act incorporating the defendant company made the signature of the
President or Vice-President and General Manager, with the common
seal of the association, a sufficient execution of the policy. The policy
was thus executed but not countersigned. The agent swore that it had
never been delivered as a policy but had merely been handed to the
party on whose life it was to be effected, for perusal, and that the pre-
mium had not been tendered until after the death,-by the plaintiff.
He also swore that, although the policy was executed in October, 1872,
it had remained in his posseseion until May, 1873, but plaintiff swore
that he had seen it in the hands of the deceased in November, 1872,
and two other persons gave similar evidence, besides which there were
circumstances in the case favorable to plaintiff's statement. The
policy recited that the premium had been paid.

Held, that on the weight of evidence as to delivery of the policy the
verdict for plaintiff must be sustained, that the condition as to counter-
signing was not warranted by the charter of the company, and, even if
it were so warranted, would be entirely inoperative, being only a mean-
ingless blank form on the margin without signature or seal and not
embodied in the policy.

O'Donnell v. Confederation Life Insurance Co.

MARINE.

.....

The insured gave a note for the premium which became due Septem-
ber 30th, 1878. On account of their failure in business previous to this
date the defendants demanded and received a guarantee dated August
6th, 1878, for the payment of the note, which they held at the time of
the loss, October 12th, 1878, having never returned it to the makers, or
demanded payment of it from them. The policy provided among
other things that "should the person liable for the premium or any note
or obligation given therefor fail in business before the time for payment
arrives, this insurance shall at once become and be void, unless and
until before loss the premium be paid or satisfactorily secured to the
company."

Held, that the terms of the policy were fulfilled, and the policy was
in force, the premium having been "satisfactorily secured" to the com-

pany.

Corbett v. Anchor Marine Insurance Co.

338

231

375

INTOXICATING LIQUORS.

Defendant was convicted before the Stipendiary Magistrate for the
police division of Yarmouth of selling intoxicating liquors without
license, and appealed to the County Court, contending that the Stipen-
diary Magistrate had no jurisdiction, as the act for appointing Stipen-
diary Magistrates and thus creating a Court was ultra vires; that there
had been no statement of claim filed before the issue of the writ as
provided by R. S., cap. 91, sec. 3, and that he was justified in selling
liquors to be used inedicinally by virtue of his being a licensed drug-
gist, although no appointment had been made by the Sessions under
R. S., cap. 75, sec 41. The sales were made by the defendant and his
clerk indiscriminately and without a doctor's prescription.

The judgment of the County Court, dismissing the appeal, was
affirmed, with costs.

Gardner v. Parr

JOINDER OF TRESPASS AND TROVER COUNTS WITH REPLEVIN.
See PRACTICE.

LEX LOCI CONTRACTUS.

LIBEL.

See MEDICAL REGISTRATION LAW.

This action was brought against the defendant company for wrong.
fully and maliciously transmitting over their wires from Halifax to St.
John, and causing to be printed and published in the Daily Telegraph
of the city last named and elsewhere, the false and defamatory message,
of and concerning the plaintiffs, i. e., "John Silver & Co., (meaning
the plaintiffs) wholesale clothiers of Granville Street, have failed.
Liabilities heavy" meaning that plaintiffs, etc., whereby many custom-
ers ceased to deal with plaintiffs; etc. Defendants denied having pub-
lished the alleged matter of and concerning the plaintiffs, and no evi-
dence was offered to show, that the alleged libel, or the words John
Silver & Co referred to the plaintiffs or either of them, but the plain-
tiffs described themselves in the writ as wholesale and retail merchants
in Halifax, doing business under the name of John Silver & Co., and
there was no evidence of any firm doing business in Granville St. of the
name of John Silver & Co. other than that of plaintiffs. The original
telegraph message was not produced, but a copy of the newspaper con-
taining it was received in evidence, the publisher of the paper having
stated that he never searched for the telegram, that it was no use to do
so, that he had never had the custody of the telegram, and that such
telegrains were generally destroyed the morning after they were
received. There was no express evidence to show that Snyder, who
furnished the telegram, was appointed by defendants as their agent, but
the publisher swore to an arrangement by which he took telegraphic
information from the defendant company, paying only for such tele-
grams as he published, and added that Snyder was the head man in
St. John, and had been so ever since the establishment of the company,
that his transactions were entirely with Snyder, whom he took to be
acting as ageut of the company, the bills being rendered in their name
by Snyder.

Held, (WEATHERBE, J., dissenting,) that the jury were warranted in
finding that the libel complained of pointed unmistakably to the plain-
tiffs, that the copy of the newspaper had been properly received; that
the jury were warranted in finding that Snyder, in furnishing the tele-
gram, was acting as ageut of the defendants, and that the verdict for
the plaintiffs for $7000, although perhaps larger than the Court, if
empannelled as a jury, would have given, could not be set aside as
excessive.

S lver et al. v. Dominion Telegraph Co...................

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Cases argued and determined in the Supreme court of Nova Scotia, 第 2 卷