Municipality-Drainage-Petition for-Extending into adjoining municipality-Report of Engineer-Not defining proposed termini—Benefit to lands in adjoining municipality-Assessment on adjoining municipality.

Under the drainage clauses of the Municipal Act, a by-law was passed by the township of Chatham, founded on the report, plans and specifcations of a surveyor, made with a view to the drainage of certain lands in that township; the by-law, after setting out the fact of a petition for such work having been signed by a majority of the ratepayers of the township to be benefitted by the work, recited the report of the surveyor, by which it appeared that in order to obtain a sufficient fall it was necessary to continue the drain into the adjoining township of Dover. The surveyor assessed certain lots and roads in Dover, and also the town line between Dover and Chatham, for part of the cost, as for benefit to be derived by the said lots and roads therefor. The township of Dover appealed from this report, under sec. 582 of 46 Vict. cap. 18, on the grounds. inter alia, that a majority of the property owners to be benefitted by the proposed drainage works had not petitioned for the construction of such work, as required by the statute; that no proper reports, plans

specifications, assessments and estimates of said proposed work had been made and served as required by law; that the Council of Chatham, or the surveyor, had no power to assess or charge the lands in Dover for the purposes stated in the said report and by-law; that the report did not specify any facts to show that the Council of Chatham, or their surveyor, had any authority to assess the lots or roads in Dover for any part of the cost of the proposed work; that the assessment upon lots and roads in Dover was much too high in proportion to any benefit to be derived from the proposed work, and that no assessment whatever should be made on the lands or roads in Dover, as the work would, in fact, be an injury thereto; and that the report did not sufficiently specify the beginning and end of the work, nor the manner in which Dover was to be benefitted.

Three arbitrators were appointed under the provisions of the Act, and at their last meeting they all agreed that the township of Dover would be benefitted by the work, but R. F., one of the arbitrators, thought $500 should be taken off the town line. W. D., another of the arbitrators, held that while the bulk sum assessed was not too great, the assessment on the respective lands and roads and parts thereof should be varied, but that this was a matter for the Court of Revision. A memorandum to this effect was signed by W. D. and A. E., the third arbitrator, at the foot of which R. F. signed a memorandum that he dissented and declined to be present at the adjourned meeting to sign the award "if in accordance with the above memoranda." Later, on the same day, W. D. and A. E. met and signed an award determining that the assessment on the lands and roads in Dover, and on the town line, made by the surveyor, should be sustained and confirmed, and that the appeal should be dismissed, and that the several grounds mentioned in the notice of appeal had not been sustained. The Queen's Bench Division set aside this award (5 Ont. R. 325) on two grounds, namely, want of concurring minds in the arbitrators, and defect in the surveyor's report in not showing specifically the beginning and end of the work. The judgment of the Queen's Bench Division was sustained by the Court of Appeal (11 App. R. 248). On appeal to the Supreme Court of Canada,

Held, Ritchie, C. J., dissenting, that the award should have been set aside upon the ground that it was not shown that a petition for the proposed work was signed by a majority of the owners of the property to be benefitted thereby, so as to give to the Corporation of Chatham jurisdiction to enter the township of Dover and do any work therein; that the arbitrators should have adjudicated upon the merits of the appeal against the several assessments on the lots and roads assessed, as their award was, by sections 400 and 403 of 46 Vict. cap. 18, made final, subject to appeal only to the High Court of Justice, and it was not a matter for the Court of Revision to deal with at all as held by one of the arbitrators; that the award should have been set aside because it did, in point of fact, as it stood, profess to be a final adjudication against the township of Dover upon all the grounds of appeal stated in the notice of appeal, and did, in point of fact, charge every one of the lots and roads so assessed with the precise amount assessed upon them respec

tively, although, by a minute of the proceedings of the arbitrators who signed the award, it appeared that they refused to render any awar upon such point and expressed their intention to be to submit that to the Court of Revision; that the arbitrators should have allowed the appeal to them against the surveyor's assessment, and that the award should have been set aside on the merits, because the evidence not only failed to show any benefit which the lots or roads in Dover which were assessed would receive from the proposed work, but the evidence of the surveyor himself showed that he did not assess them for any benefit the work would confer upon them, but for reasons of his own which were not sufficient under the statute and did not warrant their being assessed. Pegley, for the appellants.

Robinson, Q.C., and Matthew Wilson, for the respondents.

JOHNSON v. CROSSON.

Trespass to land-Conflicting titles-Description of locus in quo-Boundaries.

An action was brought in the Chancery Division of the High Court of Justice for Ontario to restrain the defendant from trespassing on the lands claimed by the plaintiff, and for damages for trespass already committed. The lands in question were described in the statement of claim as being in concession C, in the township of Etobicoke, and the defendant, in his statement of defence, denied the plaintiff's right to the possession of said lands, and claimed himself to be the oweer in fee of the same; he also claimed that the lands in question were not in concession C, but were parts of certain lots in concession B, in said township. On the hearing each party gave evidence of title in himself, the principal contention being as to the situation of the land, and judgment was given for the plaintiff.

Held, reversing the judgment of the Court below, that the title was in the defendant, under the evidence produced at the hearing, and that he was therefore entitled to have judgment entered for him, with costs of defence.

Held, also, that the said lands were in concession B, and not in conces sion C, as claimed by the plaintiff.

Robinson, Q.C., and Reeve, Q.C., for the appellant.

Osler, Q.C., for the respondent.

NOVA SCOTIA.]

KEARNEY v. CREELMAN.

Will-Mortgage by testator-Foreclosure of—Suit to sell real estate for payment of debts-Decree under-Conveyance by purchaser at sale under decree-Assignment of mortgage-Statute confirming title.

A. M. died in 1838, and by his will left certain real estate to his wife, M. M., for her life, and after her death to their children. At the time of his death there were two small mortgages on the real estate which were subsequently foreclosed, but no sale was made under the decree in such suit. In 1841, the mortgage and the interest of the mortgagee in the foreclosure suit were assigned to one J. B. S., who, in 1849, assigned and released the same to M. M. In 1841, M. M., the administrator with the will annexed of A. M., filed a bill in Chancery for the purpose of having this real estate sold to pay the debts of the estate, she having previously applied to the Governor-in-Council, under a statute of the Province, for leave to sell the same, which was refused on the ground that such leave could not be given to sell a particular part of the real estate, and if the whole estate was sold and there should be a surplus, there was no way of apportioning such surplus among the devisees. A decree was made in this suit and the lands sold, M. M. becoming the purchaser. She afterwards conveyed said lands to the Commissioners of the Lunatic Asylum, and the title therein passed, by various Acts of the Legislature of Nova Scotia, to the present defendants, a statute having been passed in 1874, confirming the title to the lands in the Commissioner of Public Works and Mines. M. K., devisee under the will of A. M., brought an action of ejectment against the Commissioner of Public Works and Mines and the resident physician of the Lunatic Asylum, which was built on the lands, and in the course of the trial contended that the sale under the decree in the chancery suit was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to the Governor-in-Council. The validity of the mortgages and of the proceedings in the foreclosure suit were also attacked. The action was tried before a Judge without a jury, and a verdict was found for the defendants, which verdict the Supreme Court of Nova Scotia refused to disturb. On appeal to the Supreme Court of Canada,

Held, affirming the judgment of the Court below, that even if the sale under the decree in the chancery suit was invalid, the title to the land would be outstanding in the mortgagee or those claiming under her, and the plaintiff, therefore, could not recover in an action of ejectment.

Semble, that such sale was not invalid, but passed a good title, Henry, J., dubitante.

Held, also, that the statute, R. S. 4th series, cap. 36, sec. 47, vested the lands in the defendants if they had not a title to the same before, Henry, J., dubitante.

Wallace, for the appellants.

MacLennan, Q.C., and Graham, Q.C., for the respondents.

ONTARIO.

High Court of Justice.

QUEEN'S BENCH DIVISION.

[WILSON, C.J., 11TH MAY, 1886.

REGINA v. MCNICOL.

By-law for licensing hawkers and petty chapmen-Agent for person residing out of county-Accused compelled to testify-Intent to evade by-lawQuashing conviction-48 Vict. cap. 40 (0).

Under a by-law of the County of Bruce, passed in pursuance of sec. 495 of the Con. Mun. Act, 1883, the defendant was convicted for selling and delivering teas as the agent of one P. W., of the city of London, contrary to the said by-law. The third section of the by-law was a copy of sec. 1 of 48 Vict. cap. 40 (O).

It appeared from the evidence of the defendant himself, who was called for the prosecution (the objection of his solicitor to his being made a witness being overruled) that he bought the tea of one W., of the city of London, and was not the agent of W. in the sale. The defendant formerly had sold tea on commission for W., but now purchased, as he said, to evade the by-law. The conviction alleged that the defendant was the agent of P. W. " of the city of London," but did not allege that the defendant had not the necessary license to entitle him to do the act complained of.

Held, that, inasmuch as the defendant was, according to the evidence, an independent trader, and not an agent, he did not come within the provisions of Con. Mun. Act, 1883, sec. 495, sub.-sec. 3, nor within 48 Vict. cap. 40 (O).

Held, also, that the conviction was insufficient, in not stating that P. W. was not resident within the county," and that the expression ** of the city of London" was insufficient.

Held, also, that it was improper to compel the defendant to give evidence against himself.

Held, also, that the possession of a license is a matter of defence, and the want of it is not a matter of proof for the prosecution.

Held, also, that the intention to evade the by-law was immaterial, so long as the agency did not in fact exist.

W. H. P. Clement, for the motion.

H. J. Scott, Q.C., contra.