KLOEPFER v. GARDNER.

Insolvency-Disputing assignment-Right to recover dividend.

In an action by a creditor of an insolvent against the assignee under an assignment for the benefit of creditors to recover the amount of the dividend declared upon his claim, the defendant pleaded as a defence that the plaintiff disputing the validity of said assignment had, as an execution creditor of the insolvent, caused the goods assigned to be seized, and, on the trial of an interpleader issue directed, had endeavoured to impeach the assignment; and that, having thus repudiated the assignment, he could not now claim the benefit of it.

Held, O'Connor, J., dissenting, a good defence, and that the plaintiff was not entitled to recover.

It was contended for the plaintiff that the action not having been tried upon the merits, but the Court having held that the plaintiff, being an assenting party to the assignment, was estopped from afterwards impeaching it, formed no bar to the plaintiff's right to rank as a creditor upon the estate of the insolvent.

Per Wilson, C.J. The mere bringing of the action was sufficient repudiation to disentitle the plaintiff from recovering.

Per O'Connor, J. By the judgment of the Court the plaintiff was relegated to his position and status under his assignment, and therefore to the benefit of it.

Creasor, Q.C., for the motion.

W. Nesbitt, contra.

DUNCAN v. TEES.

Interpleader-Jus tertii-Execution creditor as plaintiff.

Held, varying the order of Rose, J., 11 P. R. 667, that the execution creditor was entitled to set up against the claimants the right of the assignee, and an issue was directed, the execution creditors to be plaintiffs.

Aylesworth, for the sheriff.

Akers, for the execution creditors.

Shepley for the claimants.

RYAN v.

COMMON PLEAS DIVISION.

[THE DIVISIONAL COURT, 2ND JANUARY, 1886.

CANADA SOUTHERN RAILWAY COMPANY.

Railways—Accident—Contributory negligence-Withdrawing case from jury.

On the undisputed facts disclosed in the plaintiff's case, it appeared that there was a switch stand erected in the defendants' yard close to the track; the deceased, who was a brakeman, in the defendants' employment, being aware of its position and proximity to the track. On the day in question, the deceased was engaged as a brakeman on a train passing through the yard. His position of brakeman was on the top of the car, but for some reason which did not appear he was on the side of the car holding on to a ladder, and as his attention was drawn towards the end of the train, he did not see the switch stand, and was thrown under the wheels of the car and killed.

Held, that there was such want of care on the part of the deceased as disentitled the plaintiff, his administrator, to recover; and that the case was properly withdrawn from the jury.

Falconbridge, Q.C., for the plaintiff.
Nicol Kingsmill, for the defendants.

HARRIS v. WATERLOO MUTUAL INSURANCE COMPANY. Insurance-Proof of loss-Fraudulent statement as to amount of loss. The plaintiff effected an insurance against fire on a building and contents, the amount placed on contents being $200. In the proofs of loss, to induce the defendants to pay the loss, the plaintiff falsely and fraudulently stated that he had suffered loss on the contents to the amount of $1665·50, whereas the contents were proved to be worth only $150.

Held, that this vitiated the whole policy, and its effect was not confined to the property as to which the false statement was made.

Lash, Q.C., for the plaintiff.

Osler, Q.C., aud Bowlby, for the defendants.

PARDEE v. GLASS.

Trespass-Seizure-Interference with-Notice of action—Goods in custody of the law.

The Bank of Montreal placed an execution against M., plaintiff's son, in the hands of B., a Division Court bailiff, under which B. seized a stallion as belonging to M. The stallion was placed with an innkeeper pending interpleader proceedings instituted on plaintiff's behalf claiming the horse as her property. Subsequently, an execution against the same parties at the suit of P. was placed in the sheriff's hands. P's solicitors informed the sheriff of all the circumstances, and the sheriff on the 3rd October, obtained from the innkeeper a written undertaking to keep the horse stated to be under seizure by the sheriff until further orders from the sheriff; on the 14th October the sheriff was notified of the plaintiff's claim, whereupon at his instance an interpleader order was granted. On 31st December, the Division Court interpleader was decided in the plaintiff's favour, whereupon the sheriff at once notified the innkeeper that he did not claim any further right to hold the horse. Before the innkeeper had heard from the sheriff the plaintiff demanded the horse, but the innkeeper refused to deliver it up until his charge for keeping it was paid, but he did not assert any right to hold for the sheriff. On the 18th November, part of the charges were paid, either by the Bank of Montreal or P., and the balance was subsequently paid by B. On 3rd November, an order was made barring P's claim and directing the sheriff to forthwith deliver up the horse to the plaintiff. On 14th November, an action was brought against P., the Bank of Montreal, the sheriff and bailiff for conversion, etc., claiming the value of the horse, damages for loss of earnings, etc. About 3rd December, after the commencement of the action, the horse was tendered to the plaintiff, who refused to accept it except on payment of damages and costs. No notice of action was given.

Held, that there could be no recovery against any of the parties (1) for the reason that the bailiff should have had notice of action; (2) that there was nothing to connect the Bank or P. with the seizure; (3) that, though there was what constituted a seizure by the sheriff so as to entitle him to interplead and to make the innkeeper liable if he had not kept the horse for him, the sheriff in no way interfered with the plaintiff's possession or or control over it, or in any way converted it to his own use, it being at the time in the custody of the law.

Osler, Q.C., for the plaintiff.

Hardy, Q.C., for the Bank of Montreal.

Falconbridge, Q.C., for the sheriff.

Fitzgerald, for P.

Aylesworth, for the bailiff.

ARSCOTT v. LILLEY.

Magistrate-Action against-Conviction not quashed-Costs-R. S. O. cap. 73, secs. 4, 17-41 Vict. cap. 8 (0)—0. J. Act, sec. 9. sub-sec. 2-Rule 428.

Held, that the 4th section of R. S. O. cap. 73, as amended by 41 Vict. cap. 8 (0), prevents an action being brought for anything done under a conviction, whether there was jurisdiction to make the conviction or not, so long as the conviction remains unquashed and in force.

Held, also, though doubting, that the 17th section of said Act, which entitles the magistrate to full costs as between solicitor and client where in such action he obtains a verdict in his favour, has been repealed by the O. J. Act, sec. 9, sub-sec. 2, and rule 428; and that such costs are now in the discretion of the Court or Judge.

Osler, Q.C., for the plaintiff.

Hutchinson and Aylesworth, for the defendants.

CULVERWELL v. BIRNEY.

Principal and agent-Sale by agent-Double commission.

An agent selling land may recover commission from his principal, notwithstanding that he has received commission from the purchaser, where the principal has agreed that the agent might receive such commission, or where the principal knows that the agent is seeking and intends to obtain such commission and does not object.

J. K. Kerr, Q.C., for the plaintiff.
Fullerton, for the defendant.

BAKER v. MILLS.

Trespass-Damage to land-Entry by devisee.

The plaintiffs claimed as devisee of S. for damages alleged to have been sustained by them by reason of the cutting and removal of certain timber on land devised by S. to them. Prior to S's death he mortgaged the land to a building society, which, after the alleged trespass, sold the land to the defendant. The land was uncultivated, and there had been no entry by the plaintiffs.

Held, that the action was not maintainable.

Reere, Q.C., for the plaintiff.

Shepley, contra.

CLEGG v. GRAND TRUNK RAILWAY COMPANY.

Accident-Negligence-44 Vict. cap. 22 (0)-46 Vict. cap. 24 (D)—Statement of claim-Omission of necessary averments.

Action by the plaintiff, as administrator of C., for damages under 44 Vict. cap. 22 (0), by reason of the omission to pack a frog on the Midland Railway, which the defendants were operating.

Held, that the defendants were not liable, that the Midland Railway was a railway connecting with the defendant's railway, and under 46 Vict. cap. 24 (D), was exempt from the operation of the Ontario Act.

Held, also, that by reason of the omission in the statement of claim to state, as required by sub-sec. 2 of sec. 8 of the said Act, and to prove that the defendants knew that the frog was not packed, or that deceased did not know it, or that he had notified the defendants or any person superior to himself in the service of the defendants, or that such person was not aware thereof, no recovery could be had.

G. T. Blackstock, for the plaintiff.
Wallace Nesbittt, for the defendants.

ROBERTSON v. DALEY.

Statute of limitations—Possession―Squatter.

In 1809, P., the owner of certain land, sold it to D., who went into possession and occupied till 1827 or 1828, when he was turned out by one Dufait, who was put in possession and remained in possession until 1864, when he conveyed to one D., through whom the defendant claimed. D's actual possession had only been of about ten acres.

Held, that D's possession after 1828, would relate to the whole land. and could not be treated as that of a squatter so as to confer a possessory title only to the ten acres.

Small, for the plaintiff.

Scane, for the defendant.

AUSTIN MINING CO. v. GEMMEL.

Company-Detention of books by secretary-Meeting for election of directors— Whether properly called - Quorum-Pleading.

Action by the plaintiffs, a mining company incorporated under the Canada Joint Stock Cempany's Act, 40 Vict. cap. 43, by letters patent, against the defendant, who it was alleged had ceased to be secretary of the company, for the conversion and detention of certain books, etc., of