Per Armour, J. It could not be received, as it was merely corroborative, and its suspected existence would have been ground for asking to have the trial postponed.

Per Wilson, C.J. There should be a new trial. There was evidence to go to the jury as to the truth of the answer given respecting the health of the deceased brother. The jury should have been asked to say whether the answer as to injuries was a misrepresentation in facts: that the certificate meant the answers were given upon a knowledge of the facts and upon insured's belief in the truth of those facts; and a statement made without knowledge would not be protected by the formula, “best of my knowledge and belief," if insured had no knowledge; nor would such statements be protected if made regardless of insured's belief in the truth of such knowledge as he had. The proposal was a warranty that the answers were true according to the best of his knowledge.

Per Armour, J. The direction to the jury whether insured had stated to the best of his knowledge and belief the truth in regard to deceased's brother was sufficient.

As to the accident, it was one which ought to have been mentioned, but it was probably considered of too little importance by the insured, or else had escaped his memory at the time of the application, and it was sufficient for the jury to have found insured did not wilfully withhold the facts, but answered to the best of his knowledge and belief, and the proposals were not warranties.

The Court being equally divided, the motion for a new trial was dismissed with costs.

S. H. Blake, Q.C., and A. Cassels, for the motion.
McMichael, Q.C., and McCarthy, Q.C., contra.

JENNINGS v. HYMAN.

Assignment for creditors—Release of debtor-Dissenting creditors—Preference. An insolvent debtor informed his creditors of his difficulties, and, on the 19th March, 1885, all but two of the creditors signed a memorandum stating that the best thing he could do was to sell out his stock and effects for a sum named, and which would pay all his creditors fifty cents on the dollar, on certain terms; and those who signed agreed to accept fifty cents in full of their claims.

Accordingly the debtor, by bill of sale dated 9th April following, sold and conveyed his assets to one of the creditors who had executed the previous deed for the sum and on the terms named therein, which were that the debt was to be payable in four and eight months, and the purchaser was to endorse the vendor's notes, so that he could transfer them to the creditors.

The Bill of Sale referred to the previous agreement, and recited that 'the creditors" had agreed to accept these notes "in full satisfaction and discharge of their respective claims against the debtor; and also provided that the balance, if any, 'after deducting the debt of the vendees" (who were among those agreeing to accept the fifty cents composition), should be paid to the debtor.

Held, that this amounted, in effect, to a condition that any creditor receiving the fifty cents on the dollar of his claim should release the debtor, and that the sale was therefore void against the two non-assenting creditors, under R. S. O. cap. 18, sec. 2.

Per O'Connor, J. (i) The non-assenting creditor might guard himself against the effect of the above recitals by a special receipt, but he should not be driven to that artifice, even if the purchasers could properly accept such a receipt, which was questionable; and (ii) the reservation to the purchasers of the amount of their debt" was ambiguous, and might mean their whole debt, in which case the sale was preferential and so void.

ARSCOTT v. LILLEY.

Keeping a bawdy house-Habeas Corpus-Penalty under 31 Car. II. cap. 21,

sec 6.

Defendant L., a J.P., convicted the plaintiff for keeping a bawdy house, sentencing her to six months' imprisonment, after undergoing two days of which she was released on bail pending an appeal to the Sessions. The appeal was dismissed, and the plaintiff was again arrested on L.'s warrant, under advice of the defendant H., the County Crown attorney. She was dischared on habeas corpus under the latter warrant, because it did not take into account the two days' imprisonment. She was again arrested under warrant issued by the same Justice upon the original conviction.

In an action brought by the plaintiff for the penalty of £500 awarded by sec. 6 of 31 Car. II. cap. 2,

Held, reversing the judgment of Cameron, C.J., at the trial; that this section of the Act does not apply where the prisoner is confined upon a

warrant in execution.

Held, also, that a warrant in execution issued by the convicting Justice on discharge of the prisoner from custody for defects in the former warrant was the legal order and process of the Court having jurisdiction in the cause.

Semble, the warrant issued after the dismissal of the appeal by the Sessions, and the original conviction in directing imprisonment for six months without allowing for the two days' imprisonment was not open to objection.

SMITH v. CITY OF LONDON INS. CO.

Insurance-Misdescription of premises-Waiver-Arbitration-Verdict—Variance-Statutory conditions-Variation.

The plaintiff described insured building by a term intended for board but read by the Company as brick, as which they insured the premises, not finding out the mistake till after the fire. The 17th statutory condition in the policy was that the loss should not be payable for 30 days after completion of proofs of loss, unless otherwise provided by statute or the agreement of the parties, and there was a condition in the policy, as required by the Fire Insurance Policy Act, as a variation of the condition, that the loss should not be payable till 60 days after the completion of claims. The action was begun more than 30 but less than 60 days after the fire. After action the defendants demanded a magistrate's certificate under statutory condition 13 E., and had an arbitration under condition 16, and by the award the value of the building was put at $2,500, and the loss at $1,700. The jury found the former $3,500, and the loss $3,500.

Held, per Wilson, C.J. (i.) That by reason of the mistake as to the character of premises, there never was any contract, but that the defendants waived the right to object to the mistake by demanding the magistrate's certificate and the arbitration. (i.) That the finding of the jury as to value of the building must prevail, notwithstanding the award. (iii.) That the conditions that the loss should not be payable till 60 days after the completion of the claim, being in the policy and not dissented from by the plaintiff, constituted an agreement between the parties, and that it was a reasonable condition, but that it was unreasonable for the Company to insist upon, as they never intended to pay the loss.

Per Armour, J. Following Parsons v. Queen Ins. Co., 2 Ont. R. 45, any variation of the statutory condition is prima facie unjust and unreasonable.

Robinson, Q.C., and Miller, for the plaintiff.

McCarthy, Q.C., and W. Nesbitt, for the defendants.

In re KNIGHT v. UNITED TOWNSHIPS OF MEDORA & WOOD. Prohibition-43 Vict. cap. 8, sec. 14–48 Vict. cap. 14. sec. 1-Colonization road-Title to land.

Held, that a prohibition would not lie to the Fourth Division Court of the district of Muskoka, no notice having been given, as required by 48 Vict. cap. 14, sec. 1, amending sec. 14 of 43 Vict. cap. 8, disputing the jurisdiction of said Court; and that in any case prohibition would not lie where, as here, the title to the road upon which the injury complained of arose was not in fact in question, the road being a colonization road, built by the Government before the organization of the Townships of Medora and Wood as a municipality, and the question arising not being one of title, but of liability to keep in repair a road so built.

Arnoldi, for the motion.

Pepler, contra.

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GOLDSMITH v. CITY OF LONDON.

Municipal corporation-Defective sidewalk-Negligence-Misdirection.

The plaintiff, while crossing a certain street in the City of London, stumbled against the end of a sidewalk which was constructed of asphalt boxed in with boards, and was some four inches higher than the crossing, fell and received severe injuries.

Held, Wilson, C.J., dissenting, evidence of negligence that must have been submitted to the jury, and that, having found in favour of the plaintiff, their verdict could not properly be interfered with.

Held, also, that it was no misdirection to tell the jury that they were at liberty to infer that there was no evidence of negligence; that if the roadway was at that level when the accident occurred, it had been filled up between then and the examination of it by the defendant's witnesses. R. M. Meredith, for the plaintiff.

W. R. Meredith, Q.C., for the defendants.

LAXTON v. ROSENBERG.

Ejectment-Receipt of rent after action brought-Waiver-Intention.

In an action of ejectment, the plaintiff alleged a demise to the defendant as a monthly tenant. Defence, a yearly tenancy. After notice to quit, the plaintiff received from the defendant a payment of rent.

Held, affirming the judgment of Rose, J., at the trial, that there is no distinction in principle between the effect of the payment of rent as such after action brought upon the determination of the tenancy by notice to quit, and by forfeiture, and therefore the payment of rent in this case after action brought had no effect whatever upon the action, either as a bar to suit or as a waiver of the notice to quit.

Held, also, that the intention with which the rent was received must be taken into consideration. Doe dem. Theney v. Batten, Cowp. 243, approved; Cheney v. Lumbay, 6 H. L. C., commented on.

S. M. Jarvis, for the motion.

Watson, contra.

DEVERILL v. COE.

Tax sale-Action by purchaser for possession.

The lands in question were, in 1879, assessed as non-resident. The defendant came to reside on them during that year, and paid taxes to the regular collector, whereas, under the Assessment Act, the Treasurer is the proper party to receive.

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No notice was given of arrears to the then owner, and the lands were not put on the roll for 1882, as required by the Act.

The owner paid all taxes subsequently demanded of him, including those for 1882, but the lands were nevertheless put up and sold for a trifling sum.

Quere, per Wilson, C.J., whether there was not, in this case, evidence that the lands were not sold in “a fair, open and candid manner." Held, tax sale void, as taxes under the circumstances were not in

arrear.

Held, per Armour, J., the substantial performance of the provisions of R. S. O. cap. 180, secs. 108, 109, 110 and 111, is a condition precedent to the right of sale; and as there was no performance of these, the attempted sale was bad.

Remarks of Wilson, C.J., on the impropriety of tax sales as now conducted under legislative authority.

McCarthy. Q.C., and J. E. Robertson, for the motion.
H. W. M. Murray, and Delamere, contra.

MOORE v. MITCHELL.

Libel-Pleading in mitigation of damages.

In libel, a ples in mitigation of damages must in its nature admit the plaintiff's right to some compensation, but it amounts to a contention that the recovery shall be limited to the value of the plaintiff's character, which value is affectel by the facts pleaded. Such plea, based upon the plaintiff's bad character, must either show the plaintiff a person of bad general reputation or character, or a bad character with regard to some specific act relating to the charge in the libel complained of.

It is not open to a defendant to plead justification to libel, and under such defence to offer evidence of the plaintiff's bad character in mitigation of damages.

Marsh, for the motion.

Millar, contra.

HOLDERNESS v. LANG.

Short form lease-Covenant to repair—Alterations by tenant-Waste-Waicer

-Forfeiture.

The plaintiff leased, under R. S. O. cap. 103. to the defendant, premises for a grocery and liquor store for five years. The defendant subsequently broke a door through an inside brick wall. The plaintiff at first objected, but afterwards in effect assented. A partition, part glass and part wood, in which was a door separated the office from the store.