action, but at most to a new trial, if there was evidence that ought to be submitted to the jury on either branch of the findings. But

Held, on the evidence, that the findings could not be supported; and judgment was entered for the defendant dismissing the action.

MCEWAN v. DILLON.

Landlord and tenant-Breach of contract-Damages, measure of.

Action by the plaintiff, the lessee, against the defendant, the lessor, for breach of the covenants contained in a lease to dig certain ditches, etc. At the trial the learned Judge, in fixing the amouut of the plaintiff's damage, held that the measure was the difference between the rentable value of the demised premises with the defendant's covenants performed and the improvements made, and their value without such improvements.

Held, Cameron, J., dissenting, that this ruling was correct.

The learned Judge at the trial directed that if certain improvements were made the damages were to be reduced thereby. On its being shown to the Divisional Court that these improvements had been made the damages were reduced accordingly.

Musgrove, for the plaintiff.
Allan Cassels, for the defendant.

MCLENNAN v. WINSTON.

Contract-Breach-Evidence.

The plaintiff set up a contract alleged to have been made between the plaintiff and defendants, whereby the plaintiff was to cut and lay down 25,000 railway ties at 24 cents per tie on the defendant's limit to be delivered thereon; that afier the making of the contract the plaintiff procured an outfit to enable him to carry out the contract; and the plaintiff was put to loss of time in procuring the same; that the defendant refused to carry out the contract, whereby the plaintiff sustained damage; that it was further agreed that the plaintiff should ship the outfit to Port Arthur to the care of R., and on the arrival of the same the plaintiff should report and receive instructions as to the means and way of forwarding the outfit to the defendants' limit, etc., and that though the plaintiff shipped the outfit, etc., the defendants refused and neglected to give the instructions, whereby the plaintiff was damaged.

Held, assuming that a contract as alleged was proved, that the evidence showed that the breach was on the part of the plaintiff and not of the defendants; and therefore the action failed.

Schoff, for the plaintiff.

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

LANDRY v. THE CITY OF OTTAWA.

By-law-Application to quash-Single Judge-Divisional Court.

An application to quash a by-law may and ought to be made to a single Judge, and not to the Divisional Court, unless some good reason is shown why the latter should entertain it.

McCarthy, Q.C., and W. H. P. Clement, for the motion.
James Maclennan, Q.C., contra.

TODD v. DUN.

Mercantile agency-Libel-Privilege.

66

The defendants, Dun, Wiman & Co., the proprietors of a mercantile agency, wrote to the defendant C. requesting him to advise them confidentially of the standing and responsibility for credit of the plaintiff, stating that he claimed that burglary had been committed on his premises and that he had lost from $1,200 to $1,600; asking if this were so, for full particulars, and whether there was not something wrong. The defendant replied that he had made enquiry and found that the general opinion was that the plaintiff was not robbed at all, and that what had been done he had done himself; at all events if he had been robbed, it was of not more than $200 or $300; that circumstances were against him; still he could not say. The defendants, Dun, Wiman & Co., subsequently issued a printed circular or notification sheet on which, after the plaintiffs name, were the words, If interested, enquire at office." This was published and circulated amongst the defendant's customers in Canada and the United States, not more than three or four of whom had any interest in the affairs of the plaintiff. The circular also contained the following: "The words, 'If interested, enquire at the office,' inserted opposite names on this sheet do not imply that the information we have is unfavourable. On the contrary, it may not infrequently happen that our last report is of a favourable character; but subscribers are referred to our office, because in justice to them, the parties reported, and to ourselves, the information can only be properly conveyed to those entitled to receive it by the full report as we have it on our records." The words complained of, namely, "If interested, enquire at the office," were proved to have the effect of injuring the plaintiff. At the trial no attempt was made by C. to prove that the statements made in his letter were true, or that he made enquiries and found the general opinion to be as stated. In an action of libel, the jury found for the plaintiff.

Held, that the words charged were clearly libellous, and there was no privilege, for, as regards Dun, Wiman & Co., the Court was governed by Lemay v. Chamberlain, 10 Ont. R. 638, and the explanatory statement did not affect the matter; and as to C., his failure to prove the truth of the statement, or his belief therein, deprived him of any privilege. Ritchie, Q.C., and McGillivray, for the plaintiff.

Osler, Q.C., and Lash, Q.C., for the defendant.

MCCASKELL v. McCASKELL.

Rent charge-Rent service-Rent seck—Apportionment.

On 1st December, 1870, A. M. by deed conveyed certain land to his grandsons W. M. and D. M. as tenants in common; and on the same day an agreement was made between W. M. and D. M., and A. M., whereby W. M. and D. M. agreed to pay the following sums of money and fulfil the written agreement, namely that W. M. and D. M. should thenceforward support their mother, M. the plaintiff, and furnish her with reasonable, suitable and comfortable board, lodging and clothing and medical attendance when required at all times when necessary during the remainder of her natural life; and should treat her at all times with proper respect and regard, and maintain her in a proper manner; and in the event of any disagreement arising between the said W. M. and D. M. and their mother, so that she would be obliged to leave the said premises, then they should only be obliged to pay her $55 a year in lieu of board, lodging, clothing and attendance; and that the said payment should be recovered by suit at law if not paid when due; and that it was thereby agreed and understood that the said covenants, payments and annuities should thenceforth be chargeable against the said lands so conveyed as aforesaid. The plaintiff was no party to the agreement. On 4th October, 1872, the defendant W. M. for a nominal consideration of $1,000 conveyed his undivided half interest to the plaintiff, of which she had no knowledge. Subsequently, on 1st March, 1877, the plaintiff recon

veyed the same to D. M.

Held, that the agreement did not create a rent charge, as no power of distress was conferred; if a rent service or rent seck there would be a right of distress; but if neither, but a covenant charged on land, performance of it would be decreed; that upon the conveyance by W. M. to the plaintiff the whole charge was not extinguished, but an apportionment took place; and the plaintiff was entitled to enforce performance as against D. M.'s undivided interest.

Reeve, Q.C., and McGillivray, for the plaintiff.
Marsh, for the defendant.

MCDOUGALL v. HALL.

[O'CONNOR, J.

Deed-Omission to tender for execution before action brought-Evidence that execution would have been refused—Dispensing with tender.

The general scope of the Judicature Act, and especially sec. 16, s-s. 8 a, requires that the matters in controversy between the parties may be completely and finally determined, and multiplicity of legal proceedings concerning such matters avoided; so that, whenever a subject of controversy arises in an action, the Court should, if possible, determine it so as to prevent further and useless litigation.

In this case, where there should in strictness have been a tender of a conveyance for execution before action brought, but no such tender was made, the defendant, in his defence, though setting up the evidence of such a tender, at the same time indicated that, if it had been made, he

would have refused to comply therewith, and the tender would therefore have been futile.

Held, that judgment should be entered for the plaintiff, notwithstanding the want of a tender.

CHANCERY DIVISION.

THE DIVISIONAL COURT, 22nd September, 1886.

In re FLEMING.

Executor-Compensation—Commission—R. S. O. cap. 107, ss. 27, 41.

The judgment of Ferguson, J., 11 P. R., 272, ante p. 85, was reversed on appeal.

Per Boyd, C., who delivered the judgment of the Court.

The right to compensation in this case depends entirely upon the Statute, which declares that a trustee or executor shall be entitled to a fair and reasonable allowance for his care, pains and trouble, and his time expended in and about the trust estate. The statute has fixed no standard by which the rate of compensation is to be measured, and this imports that each case is to be dealt with on its merits according to the sound discretion of the judge, who is to regard the care, pains, etc., expended by the claimant. Nor have the Courts laid down any inflexible rule in this regard. While a percentage has been usually awarded as a convenient means of compensating a class of services which do not admit of accurate valuation, yet the adoption of any hard and fast commission (such as 5 per cent.) would defeat the intention of the statute. There was no duty cast upon the applicant by the so-called precatory clauses of the will which required him to act against the interests of his co-executor. In other respects the risk or responsibility which attached upon him as compared with his co-executor is not very appreciable, inasmuch as, subject to the charge in favour of the widow, the whole estate was practically at home in the hands of his co-executor on the death of the testator. The Master's Report was therefore restored without costs, as the appellant had failed in his cross-appeal to diminish the sum given by the Master. Thompson v. Freeman, 15 Gr. 384, referred to.

A. C. Galt, for the appeal.

S. H. Blake, Q.C., and Goodwin Gibson, contra.

IN CHAMBERS.

[WILSON, C.J., 24TH SEPTEMBER, 1886.

In Re WOLTZ v. BLAKELEY.

Prohibition-Division Court-Order for imprisonment-Division Court Clerk. Held, that in an order made by a Division Court judge upon judgment summons, for payment of the judgment debt within a certain time, a clause directing that the judgment debtor should be imprisoned, unless he paid the debt within the time limited, was beyond the jurisdiction of the judge; and prohibition was ordered as to that part of the order.

Semble, That the defendant should have called upon the Clerk of the Division Court to show cause against the issuing of any order for imprisonment, as he was the person alone to act upon the order made. Reeve, Q.C., for the motion.

Aylesworth, contra.

[CAMERON, C. J., 2ND SEPTEMBER, 1886.

McDONELL v. THE BUILDING & LOAN ASSOCIATION.

Costs, scale of-Illegal distress-Injunction-Damages-Subrogation-County Court-Equity side of.

The plaintiff claimed to have it declared that a certain distress made upon his goods by the defendants, under a clause in their mortgage, was illegal and void, that it should be set aside, that an interim injunction obtained by the plaintiff to restrain the sale of the goods distrained should be made perpetual, that the plaintiff should be paid $200 damages for the illegal distress, or, in the event of the Court holding the distress legal, that the plaintiff should be declared entitled to the defendants' mortgage security to the extent of the value of the goods sold.

The judge at the trial found in favour of the plaintiff, made the injunction perpetual, and assessed the damages at $25, with full costs against the defendants.

The Common Pleas Divisional Court reversed this judgment and dismissed the action, with costs.

Held, that the action was not one that could formerly have been brought under the equity jurisdiction of the County Court, although the arrears of rent and the damages found by the judge at the trial were less than $200; and that the costs should therefore be taxed on the High Court scale.

D. Armour, for the plaintiff.

Allan Cassels, for the defendants.

[GALT, J., 15th June, 1886.

COLQUHOUN v. MCRAE.

Sheriff-Seizure-Sale-Fees-Poundage.

A sheriff under a writ commanding him to levy $630 and accruing interest out of the goods of the defendants, seized some wheat, but did not remove it or put any person into possession, taking a bond for its safe keeping and delivery to him when demanded. No day for sale was fixed, nor were notices of sale posted or prepared when the sheriff received a letter from the plaintiff's solicitor directing him to withdraw the seizure upon payment by defendant of his fees and charges. The sheriff accordingly notified the defendant of his withdrawal and obtained payment of his fees and poundage claimed, $52, from the defendant, but under protest. No money except this passed through the sheriff's hands, and he made no levy.

Held, affirming the decision of the Local Judge at Pembroke, that the sheriff was not entitled to poundage under the circumstances, but he was allowed $10 in lieu of poundage and $8.68 for fees and expenses, and was directed to refund the balance of the $52 received.

Held, also, that the sheriff was not entitled to retain the amount ordered to be refunded for the purpose of applying it on another execution against the defendant.

Holman, for the sheriff.

Aylesworth, for the defendant.