THE

CANADIAN LAW TIMES.

OCCASIONAL NOTES.

Supreme Court of Canada.

ONTARIO.]

THE TORONTO GRAVEL ROAD CO. v. THE COUNTY OF

YORK.

Agreement with municipality-Traction engine-Agreement to withdraw and discontinue use-Right to use steam engine under.

The Toronto Gravel Road and Concrete Company, having power to draw wagons by means of a traction engine, entered into an agreement with the County of York, whereby they acquired the right to construct a tramway from the gravel pits along a county road to the City of Toronto. One of the clauses of the agreement was as follows:-" So soon as this agreement shall have been ratified by the said corporation, the said company shall forthwith withdraw their said traction engine from the public Highway of the said county, and shall discontinue the use and employment of said traction engine and of any other traction engine upon or along such public highway." The company had power to draw their cars' on the tramway by horses or steam, and they claimed the right to put steam engines, which were not traction engines, upon the road over the public highway, notwithstanding the above clause in their agreement.

Held, affirming the judgment of the Court below, 11 App. R. 765, 5 C. L. T. 174, that the use of such steam engines was an infraction of the above clause.

Robinson, Q.C., and Osler, Q.C., for the appellants.

J. K. Kerr, Q.C., and Cassels, Q.C., for the respondents.

KELLY v. THE IMPERIAL LOAN AND INVESTMENT CO.

Mortgagor and mortgagee-Assignment of equity of redemption in trustReconveyance by trustee-Foreclosure against trustee-Subsequent sale -Power of sale-Exercise of, by deed after foreclosure.

Kelly gave a mortgage of leasehold premises to the respondents, with a power to sell on default, with or without notice, and at either public or private sale. The mortgage conveyed the unexpired portion of the current term and "every renewed term." Afterwards Kelly conveyed the equity of redemption in the mortgaged premises to one O'S. in trust to carry out certain negotiations, and left the country. During his absence the lease of the ground expired and it was renewed in the name of O'S. Default having been made in payment of interest under the mortgage, a suit was brought against O'S. for foreclosure, prior to which O'S., having been threatened with such suit, reconveyed the equity of redemption to Kelly, but the deed was never delivered. O'S. then filed an answer and disclaimer of interest in the suit, which he afterwards withdrew and consented to a decree. The mortgagees subsequently sold the mortgaged premises to the defendant Damer for a sum less than the amount due on the mortgage; the deed to Damer recited that the property had been foreclosed. Kelly brought this suit to open foreclosure, to set aside the deed to Damer, and to be allowed to come in and redeem the premises.

Held, affirming the judgment of the Court of Appeal, 11 App. R. 526; 4 C. L. T. 486 (Strong, J., dissenting), that even if the decree of foreclosure were improperly obtained and consequently void, yet the sale to Damer might be supported as an exercise of the power of sale in the mortgage, and should be sustained; and that it passed the renewed term which was included in the mortgage.

McCarthy, Q.C., and Plumb, for the appellant.

Maclennan, Q.C., and A. C. Galt, for the respondents.

ST. LAWRENCE & OTTAWA RAILWAY CO. v. LETT. Railway Company-Negligence-Death of wife by-Lord Campbell's ActRight of husband to damages.

Although on the death of a wife caused by negligence of a railway company the husband cannot recover damages of a sentimental charac ter, yet the loss of household services accustomed to be performed by the wife, and which would have to be replaced by hired services, is a substan

tial loss for which damages may be recovered under Lord Campbell's Act, as is also the loss to the children of the care and moral training of their mother.

The judgment of the Court, 11 App. R. 1; 5 C. L. T. 30, affirmed. Robinson, Q.C., for the appellants.

McCarthy, Q.C., and O'Gara, Q.C., for the respondent.

QUEBEC.]

KNIGHT v. WHITFIELD.

Public Company-31 Vict. cap. 25, secs. 11, 17, 19 and 20 (Q)—Action for calls-Increased capital-By-laws.

Under the authority of 31 Vict. cap. 25, sec. 11, at a meeting of the directors of the S. I. Stone Chinaware Company a by-law was passed increasing the capital stock of the company by the issue of 250 additional shares of $200 each, payable by monthly instalments of ten per cent. each. At the general meeting of the shareholders, subsequently held for the election of directors and other business, this By-law was confirmed.

An action was brought by K., as assignee of the company (which was insolvent), against W., an original stockholder and director, for calls on 20 shares of new stock. The only evidence relating to the adoption of the by-law by two-thirds of the shareholders in amount, at a special meeting called for the purpose of increasing the stock, and to calls having been made on W., was the minutes of the meeting of the directors and of the general meeting of the shareholders. The Superior Court held that there had been no calls made.

This judgment was affirmed by the Court of Queen's Bench (Appeal side); and on appeal to the Supreme Court of Canada, it was

Held, affirming the judgment of the Courts below, that no calls had been made on W., and therefore he was not liable.

Per Fournier and Henry, JJ. There was no evidence that the by-law had been confirmed, as provided for by section 11 of 31 Vict. cap. 25, and on that ground also the appeal should be dismissed.

Robertson, Q.C., for the appellant.

Geofrion, Q.C., and Paradis, for the respondent.

NEW BRUNSWICK.]

REGINA v. DUNN.

Petition of right-Provincial debt-Liability of Dominion for-Order in Council-Account stated-Consideration-Right of petition.

Prior to Confederation one T. was cutting timber, under licence from the Province of Canada, on territory in dispute between that province and the Province of New Brunswick. In order to utilize the timber so cut, he had to send it down the St. John River; and it was seized by the authorities of New Brunswick, and only released upon payment of fines. This continued for two or three years, until T. was obliged to abandon the business.

As a result of negotiations between the two provinces, the boundary line was finally fixed, and a commission was appointed to determine the state of accounts between them in respect to the disputed territory. One member of the commission only, reported New Brunswick to be indebted to Canada in the sum of $20,000 and upwards, and in 1871 these figures were verified by the Dominion auditor.

Both before and after Confederation T. frequently urged the Government of Canada to collect this amount, and indemnify the licensees who had suffered owing to the dispute; and finally, by an order in council of the Dominion Government (to whom it was claimed the debt was transferred by the B. N. A. Act), it was declared that a certain amount was due to T. which would be paid on his obtaining the consent of the Governments of Ontario and Quebec. Such consent was obtained, and payments were made by the Dominion Government to T., and to the suppliant to whom the claim was assigned, and the suppliant proceeded by petition of right to recover the balance; the Government demurred on the ground that the claim was not founded upon a contract, and the petition would not lie. In the Exchequer Court, Fournier, J., overruled the demurrer, and on appeal to the Supreme Court of Canada it was

Held, Fournier and Henry, JJ., dissenting, that there not being shown any previous indebtedness from New Brunswick, the Province of Canada, or the Dominion, to T., the order in council did not create a debt, and the petition would not lie.

Blair, and Hogg, for the appellant.

Laflamme, Q.C., and McIntyre, for the respondent.

ONTARIO.

High Court of Justice.

QUEEN'S BENCH DIVISION.

[THE DIVISIONAL COURT.

REYNOLDS v. ROXBURGH.

Letting of chattel for hire-Implied warranty of fitness.

Held, that the letter of a chattel for hire impliedly warrants that it is reasonably fit for the purpose for which it is let.

W. Nesbitt, for the motion.

Dumble, contra.

LEGACY v. PITCHER.

Local venue-abolition of.

Held, that the effect of the Judicature Act is to abolish all local venues as well those made so by statute as at the common law.

V. McKenzie, Q.C., for the motion.

G. T. Blackstock, contra.

CHRISTIE v. BURNETT.

Memorandum in writing-Statute of Frauds-Parol evidence.

Held, that the letters of the defendant set out in the case constituted a sufficient note or memorandum in writing within the 17th section of the Statute of Frauds, and that parol evidence was admissible to show what the words "work" and "Rig" used therein referred to.

Creasor, Q.G., for motion.

Masson, Q.C., contra.