LONDON INS. CO. v. CITY OF LONDON.

Assessment Income-Mutual Insurance Company—Appeal to County Judge— Finality.

The defendants assessed the plaintiffs for $590.52 on an alleged income of $27,000, being the balance of moneys received by the plaintiffs, a Mutual Insurance Company, for premiums, etc., after payment of the current year's losses and expenses. The plaintiffs contended that there was no income, for that the balance under the statutes relating to the plaintiffs was to be applied in reduction of assessments on the premium notes for the ensuing year; and on an appeal to the Court of Revision the assessment was confirmed.

The plaintiffs then appealed to the County Judge who dismissed their appeal. They then paid the amount under protest, and brought this action to recover it.

Held, that the decision of the County Judge was final and that this action was not maintainable.

E. R. Cameron, for the plaintiffs.

W. R. Meredith, Q.C., and T. G. Meredith, for the defendants.

HARE v. CAWTHROPE.

Notice of trial-Joinder of issue-Close of pleadings-Counter-claim.

The plaintiff delivered a reply to the defendant's statement of defence and counter-claim, simply stating that the plaintiff joined issue upon the defence and counter-claim.

Held, that this reply closed the pleadings, and notice of trial served with it was therefore regular.

Shepley, for the defendant.

Aylesworth, for the plaintiff.

[WILSON, C. J.

In re O'MEARA & THE CITY OF OTTAWA.

Municipal by-law-Sale of fresh meat-Carcase-Restriction-Reasonable

accommodation.

By section 503 of the Municipal Act, 1883, the Council may, subject to the restrictions and exceptions contained in the six next preceding sections, pass by-laws as provided by the following sub-sections :- (1) For establishing markets. (2) For regulating markets, etc. (3) For

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preventing or regulating the sale by retail in the public streets or vacant lots, etc., of any meat, etc. (4) For preventing or regulating the buying and selling of articles, or animals exposed for sale or marketed. (5) For regulating the place, and manner of selling and weighing grain, meat and all other articles exposed for sale, and the fees to be paid therefor, etc. (6) For granting annually or oftener licenses for the sale of fresh meat in quantities less than by the quarter carcase, and for regulating such sale, and fixing and regulating the places where such sale shall be allowed, and for imposing a license fee * and for preventing the sale of fresh meat in quantities less than by the quarter carcase, unless by a person holding a valid license, and in a place authorized by the Council, etc. The restrictions and exceptions, as far as applicable, are those contained in sub-sections 4 and 6 of section 497. Sub-section 4 applies to articles for sale brought into the municipality after 10 a. m., upon which market fees are not to be imposed unless they are offered for sale in the market; and sub-section 6 applies to those persons who go to the market place before 9 a. m. between 1st April and 1st November, and before 10 a. m. between 1st November and 1st April, with any article they may sell in the market place; and with regard to such persons that after these respective hours they shall not be compelled to remain on the market place, but may proceed to sell elsewhere on paying the market fees.

Held, that a by-law passed under sub-section 6 need not be made subject to such restrictions, etc., for the proper construction of the sections is that section 503 is made subject to such restrictions, as far as properly applicable, and that sub-section 6 is in the nature of an exception from the general restrictions, etc.

Semble, that the Court might quash a by-law of this description when plainly insufficient accommodation is furnished, unless in the alternative the municipality should provide reasonably fit and full accommodation; but, as a rule, the municipality is the judge of its own business and affairs, and it is probably an extreme case in which the Court would interfere.

W. H. P. Clement, for the appellant.
Maclennan, Q.C., contra.

[CAMERON, C. J.

HODGSON v. BOSANQUET.

Municipal Corporation—Arbitration and award—Compensation-Reference to County Judge.

A portion of a drain constructed by a Township having been dug on the plaintiff's land, an arbitration was had under the municipal act to ascertain the compensation the plaintiff was entitled to by reason of the

damage alleged to have been sustained by him, (i) for land taken for the drain, (ii) for the throwing of earth on the land at the side of the drain, (iii) for the building of bridges by the plaintiff to cross the drain, and (iv) the backing of water in the plaintiff's cellar. The arbitrators found that the plaintiff had not sustained any damages and they made an award against him imposing on him a large portion of the costs.

Held, that the evidence sustained all the grounds of damage except the last as to which the evidence was not very satisfactory. The learned Judge was therefore of opinion that he could not ascertain the compensation himself, and so set aside the award, and intimated that unless the parties could agree on new arbitrators, he was disposed to direct a reference to the County Judge.

Aylesworth, for the plaintiff.
Lash, Q.C., for the defendants.

In re SMITH & CORPORATION OF PLYMPTON.

Municipal Act-Arbitration and award-Certainty of subject of referenceArbitrator refusing to act-Award by two-Revoking arbitrators' authority—Appointing third arbitrator—Meeting of arbitrators.

A township by-law, after reciting that there was a difficulty with S. "from alleged damage from water flowing from local drains known as the H. and L. drains," enacted that F. was appointed arbitrator for the Township. The notice given by the Reeve to S. read that "the corporation has elected that the claims made by you for damages to the east half of lot 11, etc., on account of the construction of the dam from P. to the S. drain or consequent thereon shall be referred to arbitration." Before the parties had been heard on the merits the plaintiff's arbitrator withdrew from the arbitration and refused to act; but the other two proceeded with the reference and made an award.

Held, that the reference was wholly informal, the subject thereof not being properly defined, and though the notice given by the Reeve to S. would make the matter sufficiently clear it did not affect S. for he never entered upon the arbitration but repudiated the arbitrator's authority at the first meeting of which he had notice.

Held, also, that the award, at any rate, was bad by reason of two arbitrators proceeding alone, the Municipal Act requiring (in the absence of a special agreement to refer) that there shall be three arbitrators continuing to act from the time of their appointment until the award has been made, and enabling the County Judge to appoint another arbitrator in the place of the one refusing or neglecting to act.

Quare, whether it is in the power of either party to the reference to revoke the authority of the arbitrators.

Semble, that the provision in the statute that the arbitrators must hold their first meeting within twenty one days from the appointment of the last arbitrator is not imperative, but directory merely; and therefore an omission to hold such meeting within such time would not invalidate an award made within the month as required by the act.

Semble, also, that the County Judge may appoint the third arbitrator ex parte, although this is not desirable; and that the power to appoint does not depend on the disagreement of the two arbitrators but on their failure to agree within the seven days limited therefor.

Richards, Q.Q., and Nelson, for the plaintiff.
W. Macdonald, for the defendants.

[GALT, J.

REGINA v. DALY.

Canada Temperance Act, 1878--Day of adoption-Evidence of accused-Not bound to criminate himself.

On an application to quash a conviction under the Canada Temperance Act, 1878,

Held, that the adoption of the act is on the day of polling.

Held, also, that under section 128 of the act, by which the accused is made a competent and compellable witness, he is not bound to criminate himself.

Robinson, Q.C., and Geo. Tate Blackstock, for the appellant.
Edwards, contra.

[PROUDFOOT, J.

YOUNG v. PURVIS.

Will, construction of-Disposition of real and personal estate-Appointment of executors -Description of land-Parol evidence-Maintenance-Charge on land-Infant executor-Devastavit.

A testator directed his executors "hereinafter named" to pay his debts and funeral expenses; and then devised the residue as follows:-To his son David "lot 16 concession 7 N. H." real and personal property; the said David to pay to each of his daughter $500, naming them; Christina,

one of the daughters, to remain on the farm, and her legacy to be given her when she became of age. No executors were named in the will.

Held, that there was an effectual disposition of the real and personal estate; that in a disposition of personal estate executors need not be expressly named, but may appear by implication; and that David was executor according to the tenor of the will.

Held, also, that parol evidence was admissible to show that the land devised was in the Township of Morris, that N. H. meant north half, and that it was the only land owned by the testator.

Held, also, that parol'evidence was admissible to show that Christina was 23 years of age when the will was made, though referred to therein as a minor; and that she was of delicate health and weak mind; that as regards the provision made for her she must be treated as an adult, and that it would not include maintenance.

Held, that an infant, whether an executor, or an executor de son tort, is not liable for a devastavit.

Legacies directed to be paid out of a mixed residue are a charge on land.

Garrow, Q.C., for the plaintiff.

M. G. Cameron, for defendant Purvis.

Malone, for Toronto General Trusts Co.

[ROSE, J.

CRAWFORD v. BUGG.

Landlord and tenant-Short Form Covenants-Assigns-Implied covenantWaste-R. S. O. cap. 107, sec. 19.

On 19th May, 1870, E. made a lease of certain premises to P. for twenty-one years. On 30th June, 1871, P., with E.'s assent, assigned to J. B. On 10th April, 1877, E., who was a mere trustee for the plaintiff, assigned the reversion to her. On 29th December, 1882, J. B., without the plaintiff's knowledge or assent, assigned to C. B., who thereafter was in possession of the property, receiving the rent from sub-tenants and paying the head rent to the plaintiff. The plaintiff had also received the rents prior to E.'s assignment to her. The lease was under seal and was in the ordinary printed form, and purported to be under the Short Forms Act, and the statutory covenants were prefaced by the words, "and the said lessee for himself, his heirs, executors, administrators and assigns. covenants in manner and form following, that is to say." Then followed the ordinary statutory covenants, except that after the covenant to repair were the words "reasonable wear and tear and damage by fire and tempest excepted"; and after the covenant not to assign the additional