Held, that the soil of the roads was vested in the Crown represented by the Attorney-General of Ontario, and to him as a public officer the compensation is payable; even if there was jurisdiction, the discretion of the Attorney-General, or rather that of the Lieutenant-Governor in Council, as to the ultimate disposition of the fund should not be interfered with.

When the highway is no longer needed for public use, the infallible justice of the Crown will regard the rights of all interested.

McCarthy, Q.C., and Barron, for R. C. Smith.

Irving, Q.C., for the Government of Ontario.

G. T. Blackstock, for the Corporation of Fenelon Falls.
Nelson, for the Government of Canada.
McMichael, Q.C., for a mortgagee.

[5TH MAY, 1886.

DOBBIN v. DOBBIN.

Dower-Husband and wife-Equitable dower-Equity of redemption.

The plaintiff claimed dower against the heir-at-law of the intestate. who created a mortgage on the lands prior to his marriage, which mortgage was still unsatisfied. He died possessed of no other property.

Held, that, the mortgage being paramount to the wife's dower which attached only upon the equity of redemption, she could not claim to have the heir's estate onerated with the payment of this mortgage in order to give her the full measure of her dower at law; and if she sought more than dower on the value of the estate, after deducting the amount of the mortgage, she must contribute rateably to the payment of that encumbrance; that this was to be worked out in this way: getting onethird of the rents and profits for life she may keep down the one-third of the interest attributable to the mortgage debt for the like period. The yearly value of her dower was to be ascertained by deducting from onethird of the rents, issues and profits of the whole estate one-third of the yearly interest of the mortgage, and on that basis the value of an annuity to produce that sum during her life must be computed according to the methods usually employed In fixing a gross sum for dower.

Poussette, Q.C., for the plaintiff.

Dumble, for the defendant.

BOYER v. GAFFIELD.

Fraudulent conveyance-Lapse of time-Statute of Limitations.

This was an action brought by a judgment creditor having unsatisfied writs in the hands of the sheriff, seeking to set aside a certain voluntary deed of conveyance made by the judgment debtor in September, 1873, of certain lands and premises, alleging that the judgment debtor was then largely in debt, and that the plaintiff's debt was then still unpaid. The defendants, the grantees under the voluntary conveyance, set up that even if the plaintiffs ever had any right to resort to the lands for the recovery of the debt, such right had been extinguished and lost by the delay.

Held, that inasmuch as the plaintiff's debt was shewn to have existed prior to the deed of conveyance impeached, which conveyance was of an entirely voluntary character, the plaintiff was entitled to the relief claimed; for a deed which is by the statute of Elizabeth fraudulent as to creditors is not validated because it has not been attacked for ten or twenty years. It is a fraudulent deed, and it remains so to the end of time, though it may be not effectively impeachable because of purchasers for value without notice having intervened, or because the claims of all creditors have been barred or extinguished by lapse of years, neither of which elements obtained in the present case.

Hoyles and Riddell, for the plaintiffs.

Cassels, Q.C., and J. W. Kerr, for the defendant.

[13TH MAY, 1886.

WALLIS v. SCHOOL TRUSTEES, SEC. 9, LOBO.

New school section-Selection of school site-Change of same-Requisition under 48 Vict. cap. 49, sec. 64—Costs.

A new rural school section having been formed, it became necessary for the three trustees to provide a school site, &c. A public meeting of the ratepayers was called pursuant to 48 Vict. cap. 49, sec. 64, which nearly all the ratepayers attended when the T. L. site was chosen by a majority vote of both the ratepayers and trustees as against the J. C. site.

A complaint against this result was lodged with the school inspector under sec. 32 of the statute, which led to his making attempts to have an amicable adjustment of the difficulty, the outcome of which was that two of the trustees gave notice of a subsequent meeting for the purpose of changing and selecting a school site at which meeting a unanimous vote was had in favour of a third site called the C. site.

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22

In an action by the other trustee and some ratepayers to have it declared that the last meeting was illegal and to restrain building on the C. site, in which it appeared in evidence that 50 out of the 67 ratepayers approved of the latter site, it was

Held, that the necessary precaution under sec. 64 of the statute of taking the opinion of the ratepayers was complied with, and the selection made was the T. L. site; that no change of a school site should be made without the consent of the majority of ratepayers present at a special meeting called for that purpose: and that under the circumstances of this case the school site had been ascertained and fixed by the first meeting, but it was competent for the second meeting to change this site with the consent of the necessary majority.

The whole tendency of recent amendment of the education acts has been to give the rural school sections greater powers of self-regulation and self-government; and the Courts should not be astute to interfere unless there has been a plain violation of the statute, or a manifest usurpation of jurisdiction, or a reckless interference with individual rights.

The action was therefore dismissed but without costs, as it was a new point and the statute was not plainly expressed.

Hellmuth, for the plaintiffs.

T. Meredith, for the defendants.

[GALT, J., 16TH MAY, 1886.

CAREY v. GOSS.

Trade mark-Infringement—Injunction-Registration of Trade Mark-Registration of assignment-Trade Marks and Designs Act of 1879-42 Vict. cap. 22, secs. 4 & 14 (D).

The L. F. P. P. Co. published a newspaper called "The Commercial Traveller & Mercantile Journal," which would be known as "The Commercial Traveller," as those words were printed in much larger letters than the words "and Mercantile Journal," and registered it under the Trade Marks & Designs Act, 1879, as "The Commercial Traveller's Journal." The company sold the paper and good will to the plaintiff, and on the negotations for the sale, the plaintiff saw the defendant, who was then employed by the company as manager and editor, and who showed him the assets of the paper, the printing contracts, etc., and recommended the purchase as a good investment.

After the sale the defendant, who had retained a mail list of the subscribers to the paper, published a new paper called "The Traveller," and used the list to send copies of his paper to some of the names contained It was shown in evidence that while the defendant was in the

therein.

employ of the company he often used the word "Traveller" as designating the paper then known as "The Commercial Traveller." In an action to restrain the defendant from infringing the plaintiff's trade mark, It was

Held, that the title of the paper published by the defendant was an infringement of the Trade Mark of the plaintiff, and that the subsequent publication by the defendant of a paper under the name of "The Traveller" was calculated to mislead persons and induce them to believe the plaintiff's paper was the paper referred to.

Held, also, that although the 4th section of the Trade Marks & Designs Act of 1879, 42 Vict. cap. 22 (D.) requires registration of the trade mark before the proprietor can bring an action, and the 14th section provides for registration of an assignment, still the latter section does not enact that registration shall be necessary to give effect to such assignment; an injunction was therefore granted.

Foy, Q.C., for the plaintiff.

Morson, for the defendant.

[PROUDFOOT, J.. 6TH MARCH, 1886.

In re MELVILLE.

Sale subject to a condition—Breach of condition—Will--Devise-Possibility— R. S. O. cap. 106, sec. 2-Right of entry for condition broken-Valid condition of re-entry-Heir-at-law-Devisees.

On 26th September, 1844, J. Le B. by deed bargained and sold, etc., to the Municipal Council of D. District, in consideration of five shillings, a certain lot for the purpose of erecting thereon a schoolhouse for the use of D. District; to have and to hold the same for the purpose aforesaid, unto the municipal council forever. The deed was subject to a proviso that the said council should within one year from its date erect a school. house for the use of the said district, or if the said council should at any time erect any other building save said schoolhouse and necessary offices, or should sell, lease, alien, transfer, or convey the said land, it should be lawful for the said J. Le B. and his heirs to re-enter and avoid the estate of the said municipal council.

J. Le B. by his will dated 23rd July, 1847, devised all his real estate to his nieces, and died in the year 1848, without having revoked or altered his will. The mnnicipal council complied with the condition by building a schoolhouse, and at the time of the making of the will the condition had not been broken, but the successors of D. District dealt with the land otherwise than was authorized by the deed and broke the condition.

The land having been sold, a petition was filled to have it declared whether the devisees under the will of J. Le B. or his heirs-at-law, were entitled to the proceeds thereof.

Held, that the word "possibility" in R. S O. cap. 109, sec. 2 included a right of entry for condition broken, mentioned in section 10, and is more extensive than that phrase, and might therefore be the subject of a devise, and is covered by the general name of “land.” And that upon the breach of the condition no new estate was acquired so as to require words applicable to after acquired estates to be found in the will.

The possibility of reverter was a contingent interest that existed in the testator when the will was made; the subsequent breach of the condition gave a right of entry by which the contingent interest might be converted into an estate in possession.

Held, also, that a condition of re-entry or condition strictly so called, as distinguished from a conditional limitation, is a means by which an estate or interest is to be prematurely defeated and determined, and no other estate created in its room. The condition in this case was perfectly valid. The devisees and not the heirs of J. Le B. were consequently held entitled to the land or the money representing it.

W. H. Miller, Q.C., for the petitioners the devisees.

Rae, for the heirs-at-law.

Maclennan, Q.C., for the infants.

[20TH APRIL, 1886.

COOK v. NOBLE.

Will, construction of—Maintenance to widow and family-Abatement of legacies.

A testator gave to his executors and trustees, of whom his wife was one, all his real and personal estate with a direction to convert his personal estate into money, pay debts and invest balance. He directed them to pay his wife from time to time such money as might be sufficient to support, maintain and educate her family, and to maintain his wife in a manner suited to their condition in life, and for that purpose gave his wife power to collect money and to take therefrom enough to maintain her family and herself. And he directed his sons to pay her $150 a year after they received their lands, but they were not to pay it so long as she and the family were maintained out of the estate. The trustees were to pay $1,000 to each of the daughters as they attained 21, and if there was not sufficient personal estate to pay them, the balance was to be a charge on the real estate. The real estate was to be divided between the sons when