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From Boyd, C.]

DAW v. ACKERILL.

Church-Incumbent's salary- Liability of churchwardens.

[Jan. 11.

The churchwardens of an Anglican congregation which had adopted the free pew system, and in which the only revenue is derived from the voluntary contributions of the members, are not liable to the incumbent for the payment of his salary except to the extent of contributions received by them for that purpose. Judgment of BOYD, C., 28 O.R. 452; 33 C.L.J. 73, affirmed. Clute, Q.C., for appellant. S. Masson, for respondents.

From Divl. Court] KERVIN 7. CANADIAN COTTON MILLS CO.
Negligence-Evidence-Master and servant.

[Jan. 11.

This was an appeal by the defendants from the judgment of a Divisional Court reported 28 O. R. 73, and was argued before BURTON, C.J.O., Osler and MACLENNAN, J.J.A., and FALCONBRIDGE, J., on the 10th of June, 1897.

OSLER, J.A., and FALCONBRIDGE, J., were of opinion, agreeing with the majority in the Divisional Court, that there was evidence from which it might properly be inferred that the accident was caused by the negligence of the defendants.

BURTON, C.J.O., and MACLENNAN, J.A., were of opinion that the evidence was equally consistent with the theory that the deceased's own careless

ness caused his death.

Appeal was dismissed with costs.

McCarthy, Q.C., and R. A. Pringle, for appellants. Aylesworth, Q.C., for respondent.

From Rose, J.]

HESSELBACHER 7. BALLANTYNE.

[Jan. 11.

Sale of goods-Contract-Loss of goods. This was an appeal by the plaintiff from the judgment of Rose, J., reported 28 O.K. 182; 33 C.L.J. 73, and was argued before BURTON, C.J.O., OSLER and MACLENNAN, JJ.A., on the 17th and 20th of September, 1897.

Appeal dismissed with costs, the court holding that, on the evidence, the plaintiff had accepted and taken possession of the logs, and not dealing with the point upon which the case turned in the court below.

Ayles zorth, Q.C., for appellant.

W. M. Douglas, for respondent.

From Boyd, C.] MAIL PRINTING COMPANY V. CLARKSON.

[Jan. II.

Assignments and preferences-Contingent claim—Advertising contract. Where an estate is being administered under the Assignments and Preferences Act, R.S.O. ch. 124, claims depending upon a contingency cannot rank, but only debts strictly so called. An advertising contract gave the advertiser in consideration of the sum of $1,000 the right to use certain advertising space in a newspaper at any time within twelve months, the advertiser agreeing to

pay at the end of each month for the space used in that month and at the

expiration of twelve months, whether the space had been used or not, to pay $1,000 less such sums as might have in the meantime been paid. The advertiser before using any space, and before the expiration of twelve months, made an assignment for the benefit of creditors pursuant to R.S.O. c. 124,

Held, reversing the judgment of BOYD, C., 28 O.R. 326; 33 C.L. J. 289, that the $1.000 would not necessarily become due by effluxion of time, and that the newspaper company could not rank. Grant v. West, 23 A. R. 533. applied.

Thomson, Q.C., for appellant. C. J. Holman, for respondents.

From Street, J.] CERRI v. ANCIENT ORDER OF FORESTERS.

Benevolent society-Life insurance-Mistake as to age.

[Jan. 11.

S. 6 of the Ontario Insurance Amendment Act, 1889, 52 Vict., c. 32 (O.), does not apply to benevolent societies having an age limit for admission to membership, and where a man who was older than the age limited was, owing to his innocent misrepresentation as to his age, admitted a member and given an endowment certificate, it was held that the beneficiary named therein could not recover.

Judgment of STREET, J., 28 O.R. 111, reversed, MACLENNAN, J.A., dissenting.

Ayleworth, Q.C, and McWatt, for appellants. G. G. Mills, for respondent.

From Robertson, J.] COLL v. TORONTO R. W. Co. [Jan. 11. Master and servant-Damages-Tort-Wrongful act of servant-Scope of employment.

The master is not liable for the wrongful act of the servant, though done during the course of his employment and intended to promote the master's interest, if it is an act outside the scope of the servant's employment and authority and is one which the master himself could not legally do.

The defendants were held not liable where the motorman of one of their electric cars, who had no control over or authority to interfere with passengers or persons on the car, pushed off the car, as the jury found, a newsboy who was getting on to sell a paper to a passenger. Judgment of ROBERTSON, J., reversed.

J. Bicknell, for appellants. Aylesworth, Q.C., and L. V. McBrady, for respondent.

From Rose, J.]

[Jan. 11. RE CANADIAN PACIFIC R. W. Co., AND COUNTY AND TOWNSHIP OF YORK. Railways-Highways - Crossings-Maintenance of gates-Apportionment of cost-Constitutional law-Railway Committee-Railway Act, 1888, 51 Vict., c. 29 (D).

The Railway Committee of the Privy Council, on the application of the City of Toronto, ordered the Canadian Pacific Railway Company to put up gates and keep a watchman where the line of railway crossed a highway run

ning from the City of Toronto into the Township of York, the line of railway being at the place in question the boundary between the two municipalities, and ordered the cost of maintenance to be paid in certain proportions by the railway company, the city, the township, and the county.

Held, per BURTON, C.J.O., and MACLENNAN, J.A., that, assuming the validity of legislation conferring jurisdiction on the Railway Committee, their powers were limited to persons or municipalities invoking the exercise of their jurisdiction, and that their order was invalid so far as it imposed a burden upon the township and county.

Per OSLER, J.A., that the legislation was intra vires, and that the township and county were persons interested within the meaning of the Act, and subject to the jurisdiction of the Railway Committee.

Per MEREDITH, J., that the legislation was intra vires, but that the county was not a person interested, not being under any responsibility for the maintenance of the highway in question.

Per Curiam, that the decision of the Railway Committee upon a subject, and in respect of persons, within its jurisdiction, cannot be reviewed or interfered with by the court. In the result the judgment of Rose, J., 27 O.R. 559, was allowed as to the County of York, and dismissed as to the Township of York.

Aylesworth, Q.C., for the Township of York. C. C. Robinson, for the County of York. Robinson, Q.C., and A. MacMurchy, for the Canadian Pacific Railway Company. J. R. Cartwright, Q.C., for the Attorney-General for

Ontario.

From Falconbridge.] FAWKES V. GRIFFIN. [Jan. 11. Receiver-Money in hands of Payment into Court-Default— Attachment— Order for Motion to rescind-Delay-Irregularities-Specific order for payment-Punishment R.S.O. 1887, c. 67, ss. 6, 11-Understanding between receiver and solicitor-Claim of receiver upon money in his

hands.

On June 27. 1895, an order was made in this action by consent, appointing the defendant's solicitor receiver in the action until Sept. 3, 1895, to collect the rents of the premises in question, and directing that he should pass his accounts before the Master, and pay into court the balance which might from time to time be certified to be in his hands. On August 28, 1895, the plaintiff's solicitor wrote to the receiver, asking that the matter might remain as it was until October. The receiver swore that he thereupon called on the plaintiff's solicitor, and an understanding was arrived at between them by which he was to continue to act as receiver until a motion should be made to dissolve or continue the injunction, and that all moneys which he collected as receiver were to remain in his hands until the disposition of the action, when he undertook to pay them over, and on this understanding he consented to allow the motion to continue the injunction to stand sine die. In Oct., 1895, the receiver passed his accounts, and on the 22nd of that month the Master certified that $266.64 was in the receiver's hands to be paid into court as directed

by the order. The receiver not having paid the money into court, the plaintiff's solicitor, on Nov. 12, 1895, wrote to him requesting him to do so; and the receiver answered on the same day saying that, according to any orders or reports that had been made, he had not ascertained any date within which the money should have been paid into court; that he was waiting a specific order for that purpose, and as soon as such order was made, or at any time, he was prepared to pay into court the money he had received. On Nov. 27, 1895, notice of motion was served by the plaintiff for an order to commit the receiver to gaol for his contempt in not paying into court the sum found due, and on Dec. 10, 1895, no one appearing to oppose the motion, an order was made by Boyd, C., requiring the receiver within ten days to pay the amount into court, and that in default of his doing so a writ of attachment should issue, etc., etc. On Jan. 13, 1896, notice of motion was given by the receiver, by the special leave of Boyd, C., for an order setting aside the last mentioned order, on the ground of the understanding above mentioned between the receiver and the plaintiff's solicitor, and an explanation of the failure of the former to oppose the motion to commit. The understanding was denied by the plaintiff's solicitor. The receiver also swore that the plaintiff and defendant were both indebted to him in large amounts, and he claimed a lien on the money in his hands for costs, and a right of set-off. Upon this motion an order was made by Falconbridge, J., on March 3, 1896, extending the time for payment into court by the receiver until April 30 then next, and directing that in default thereof the motion should be dismissed with costs.

Held, upon appeal, that no sufficient case had been made out for interfering with the orders of BOYD, C., and FALCONBRIDGE, J. There was a great delay in moving, but it was to be assumed in favour of the receiver that a sufficient order to extend the time for doing so was made, and that Rule 1454 of January, 1896, amending Con. Rule 536, as to rescission of ex parte orders, applied, though it did not come into force until after the order of BOYD, C., was made. Neither in the affidavits filed nor in the notice of motion to rescind the first order were any objections taken to the regularity of the proceedings, and the case was not in which the Court should be astute to discover them, or permit them to be raised for the first time on the argument of the appeal Treherne v. Dale, 27 Ch. D. 366.

:

That an attachment lies against a receiver as an officer of the Court for his default in compliance with the order to pay into Court the money found to be in his hands sufficiently appears from In re Wray, 36 Ch. D. 138, In re Gent, 40 Ch. D. 190, and In re Freston, 11 Q.B.D. 553, and other cases applied and followed in Pritchard v. Pritchard, 18 O.R. 173. The powers of the Court are not invoked nor its process issued for the purpose of recovering or enforcing payment of a civil debt or claim inter partes, but for punishing its officer, who has disobeyed its order; and ss. 6 and 11 of R.S.O., 1887, c. 67, are inapplicable. It cannot be said that an understanding between the receiver and the solicitor of one of the parties ought to be accepted as an excuse for non-compliance with the order, more especially when the authority to waive the order is not admitted or is denied by the parties or either of them. And while there may be cases such as In re Gent, 40 Ch. D. 190, where the

Court, in case of the receiver, has relieved him from paying in the whole of a very large sum found to be in his hands, recognizing the fact that he may be entitled to a share thereof and to remuneration, none is to be found where he has been permitted to discharge himself by setting up claims which, had they been put forward in the first instance, would in all probability have prevented his appointment: Re Bell's Estate, L.R. 9 Eq. 172. Besides, the receiver's letter of Nov. 12th, 1895, furnished a complete answer to his application for relief, showing as it did, especially when taken in connection with the fact that he was not prepared on Dec 10th to set up the grounds now relied on, that these grounds were a mere afterthought.

Semble, that a specific order to pay over the balance is the proper course in the first instance.

Judgment of FALCONBRIDGE, J., affirmed.

W. R. Smyth, for appellant. Bradford, for respondent.

Robertson, J.]

HIGH COURT OF JUSTICE.

SAWYER V. PARKIN.

[Oct. 26, 1897. Divison Courts—Jurisdiction—Agreement for sale of machine--Ascertainment of amount claimed.

Under a written agreement for the sale of a machine, signed by the defendant, he was to send to the plaintiffs, within ten days after the machine was started, a promissory note, with approved security, for $125, the price thereof, and in default the price was to become forthwith due and payable. The machine, which was by the agreement to be delivered by the plaintiffs f.o.b cars addressed to the defendant to an outside railway station, was received by him and shortly after returned to plaintiffs.

Held, that there was no jurisdiction in the Division Court to entertain an action for the price of the machine. as the amount was not "ascertained by the signature of the defendant" under s. 70, s.-s. (O) of R.S.O. (1887) c. 51, for in addition to proof of the signature, evidence was necessary to show that the terms of the agreement had been performed by the plaintiffs.

Kirwin Martin, for plaintiffs.

D. L. Walsh, for defendant.

Boyd, C.]

HUYCK 7. WILSON.

[Jan. 13. Arbitration Action to enforce award-Publication-Time for moving against award-Interest-Costs of arbitration-Taxation-Judgment-Writ of summons-Special indorsements.

Action upon an award. Appeal by the plaintiff from an order of the local Judge at Picton setting aside his own ex parte order allowing the plaintiff to enter judgment upon a writ of summons specially indorsed in default of appearance, and setting aside the judgment entered pursuant thereto and execution issued upon such judgment.

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