Held, that publication of an award has one meaning when it relates to the time within which the parties can move against the award, and that was considered in Redick v. Skelton, 18 O.R. 100, but another meaning when it relates to the completion of the award so far as the arbitration is concerned, in which case it is satisfied by the execution of the award in the presence of a witness or by any other act showing the final mind of the arbitrator, upon which he becomes functus officio: Brown v. Vawser, 4 East 584; Brooke v. Mitchell, 6 M. & W. 473.

The indorsement of the writ of summons in this case stated that the award was made and published, and it must be taken to be final as far as the arbitration is concerned. The award being thus completed, an action may be brought upon it forthwith, though it may be open for the defendant, if dissatisfied, to move against it within the usual limits of the time allowed by the practice after publication to the parties. The two proceedings to set aside the award, and to enforce it by action, may go on concurrently. The weight of authority is against any suspension of the right to enforce the award pending the period within which it may be summarily moved against. Moore v. Buckner, 28 Gr. 606, is not in accord with the other cases: See Redman on Awards, 2nd ed., p. 284, and cases there cited; Doe v. Amey, 8 M. & W. 565; Plumner v. Mitchell, 48 Me. 184.

In this case there was no objection to the amount awarded except as to the amounts claimed for interest and costs. Interest would not run if no notice of the award was given to the defendant; and the costs of the arbitration did not form a liquidated sum, as they were not taxed. But as to $660, the sum awarded, and $40, the amount paid to the arbitrators, the judgment should stand, under Rule 575.

Order below modified by allowing the judgment and execution to stand for $700, and letting the defendant in to defend as to the residue, unless the plaintiff abandon it. This order to be without prejudice to any motion by the defendant against the award.

J. H. Moss, for plaintiff. Swabey, for defendant.

Armour, C.J., Street, J.] ALEXANDER v. IRONDALE, R.W. Co. [Jan. 17. Discovery-Examination of officer of company-Production of documents— Setting aside subpæna.

Held, reversing the decision of ROSE, J., ante p. 37, that in this case the subpoena for the examination of the defendants' president, as an officer of a corporation, for discovery should not be set aside quoad the books and documents which it called upon him to produce, for the affidavits showed that the accounts of the defendants were kept in the books of the president; and the practice of setting aside a subpœna, as laid down in Steele v. Savory, (1891) W. N. 195, was one to be followed only in exceptional cases, while in ordinary cases it would be better that the question of production of documents should be raised before the examiner.

A. C. McMaster, for plaintiff. W. H. Blake, for defendants.

Armour, C. J., Street, J.] IN RE Ribble v. Aldwell.

Mechanics' liens-Enforcements-Forum-County Court Judge.

[Jan. 17.

All actions and proceedings to enforce mechanics' liens must be brought and taken in the High Court of Justice under the procedure enacted by 59 Vict., c. 35, as amended by 60 Vict., c. 24. Although by ss. 31 and 32 of the former Act a County Court Judge has complete jurisdiction in such an action or proceeding, in the High Court, yet if the proceedings are intituled in a County Court he has no jurisdiction.

R. S. Appelbe, for plaintiffs. G. C. Campbell, for defendant.

Armour, C.J., Street, J.] IN RE LOTT v. CAMERON.

[Jan. 19.

Division Court-Action for balance of unsettled account-Liquidated claim

Prohibition.

Decision of MEREDITH, C.J., in Chambers, ante 33, affirmed on appeal.
C. J. Holman, for the defendant. J. H. Moss, for the plaintiff.

Armour, C.J., Street, J.] FOLEY V. EAST FLAMBOROUGH. [Jan. 29. Municipal corporations-Highway Accident-Runaway horses—Control— "Repair" of highway.

An appeal by the plaintiffs, the widow and child of a man named Foley who was killed by being thrown from a wagon on the centre road in the township of East Flamborough, from the judgment of Boyd, C., at Hamilton, dismissing with costs an action brought against the township corporation for damages for the death, which the plaintiffs charged was due to the road being out of repair, there being an obstruction in it in the shape of a stump. Foley was being driven by a friend of his, one Sullivan, in the latter's wagon, to which was attached a pair of spirited horses. The action was dismissed because it was found that Sullivan was drunk, and Foley, if sober, must have known it, and this condition contributed to the accident. The trial Judge not having found specifically whether the road was

or was not in a reasonable

state of repair, the Court now found upon the evidence that at the time of the accident the road was in a reasonable state of repair, having regard to the requirements of the public using the road in the ordinary way.

If

The word "repair" as used in the Municipal Act, is a relative term. the particular road is kept in such a reasonable state of repair that those requiring to use it may, using ordinary care, pass to and fro upon it in safety, the requirement of the law is satisfied. A road need not be kept in such a state of repair guard against injury caused by runaway horses, i.e., horses whose riders or drivers have entirely lost control of them, either in spite of ordinary care or by reason of the want of it.

as to

But for Sherwood v. Hamilton, 37 U.C.R. 410, it should be held that in this case the running away of the horses and their ceasing to be under control was the proximate cause of the injury. Assuming the facts to be that the driver, in spite of ordinary care on his part, lost control of his horses, and

that they running away, the injury was caused by their running the vehicle against the stump in the highway, the plaintiffs could not recover, because, notwithstanding the stump, the road was in a reasonable state of repair for ordinary travel.

Appeal dismissed with costs.

Lynch-Staunton, for plaintiffs. W. T. Evans, for defendants.

FITZGERALD v. MOLSONS BANK.

Armour, C. J., Street, J.J [Jan. 29. Municipal corporation-Borrowing powers-Current expenditure—Inquiry by lenders-Repayment of money lent-Action to restrain.

An appeal by the plaintiffs from the judgment of Rose, J., at the trial at Ottawa, dismissing the action, which was brought by certain ratepayers of the Village of Hintonburgh against the bank, the village corporation, and the sheriff of the county of Carleton, to restrain the collection and enforcement of a judgment for $6,000 recovered by the bank against the village corporation, upon the ground that the corporation had no power to borrow from the bank the money for which judgment was recovered. The borrowing of $7,000 from the bank was authorized by by-laws of the village corporation passed in 1895. The amount borrowed was expended in the repair and alteration of certain roads, and in diverting the course of a certain stream within the village limits. These works were within the general powers of the corporation, but no provision had been made for the outlay in the estimates. The by-laws authorized the borrowing of not more than $7,000 to meet current expenditure until the taxes could be collected. The by-law which authorized the levying of the rates for 1895 specified the amounts to be levied for each separate purpose, and these works were not specified. The whole amount authorized to be levied was only $5,179.45. In 1897, after this action had been begun, a by-law was approved by the vote of the ratepayers, and passed, which authorized the issue of debentures for $8,000, reciting the expenditure upon the works referred to.

Held, that, upon the proper construction of s. 413 of the Municipal Act of 1892, as amended by the Act of 1893, s. 10, a bank or individual lending is bound to inquire into the amount of the taxes authorized to be levied to meet the then current expenditure, and cannot lawfully lend more than that sum, although not bound to inquire into the existence of an alleged necessity for borrowing. It was admitted, however, that the money borrowed from the bank was expended by the council upon works within its jurisdiction upon which money lawfully obtained for the purposes of the council might have lawfully been expended; the by-law of 1897 was also admitted, and that the council had issued debentures and raised money upon them, and were willing to pay back to the bank the money borrowed, and were only restrained from doing so by the proceedings in this action. If the plaintiffs, upon the passing of this by-law, had withdrawn their opposition to the payment of the bank's claim, they would have been entitled to their costs, because they were right up to that point; but they insisted that the council had no right to use the money raised upon these debentures in

repaying the bank, because the by-law did not specifically state that the money was to be paid to the bank. There is nothing in the Municipal Act which prevents a council, with the approval of the ratepayers, from raising money for the repayment of such a debt as this. A municipality, having so borrowed money and expended it for the benefit of the ratepayers, is not to be restrained from being honest enough to pay it back.

O'Meara, for the plaintiffs. Aylesworth, Q.C., for the defendants, the Molsons Bank. W. R. Smyth, for the defendant Sweetland, the sheriff.

FIRST DIVISION COURT, COUNTY OF ONTARIO.

[Jan. 7.

Denton, Acting Co. J.] ONTARIO LADIES COLLEGE v. Hodgin. Division Court-Jurisdiction where cause of action arose-57 Vict., c. 23, s. 12 -60 Vict., c. 14, S. 12.

The defendant, residing in the Province of Quebec, subscribed for $100 stock in the plaintiff company. A call was made on the stock payable at the Western Bank in the town of Whitby, Ontario, and the defendant having made default in payment, this action was brought for the amount of the call.

Held, that the cause of action arose partly within the jurisdiction, and that where the claim is for a sum within the jurisdiction the action lies even though the defendant resides out of the jurisdiction.

J. B. Dow, for plaintiff. Farewell, Q.C., for defendant.

Province of Nova Scotia.

SUPREME COURT.

(Before McDonald, C.J., Ritchie, Townshend, JJ., and Graham, E.J.)

THE QUEEN v. HALIFAX ELECTRIC TRAMWAY CO.

Lord's Day observance—Provincial Act amending provisions of old provincial

criminal law held ultra vires.

Prior to 1867 c. 159 of the Revised Statutes of Nova Scotia (3rd series) was part of the criminal law of the province.

Sec.

2,

By the British North America Act the criminal law was placed within the exclusive legislative authority of the Parliament of Canada, which authority was exercised in respect of c. 159 by the repeal of two of its sections. which was not repealed, was as follows: "Any person who shall be convicted before a justice of the peace etc., of servile labor, works of necessity and mercy excepted, on the Lord's Day shall for every offence forfeit, etc." vision of c. 159 by enacting that' By the Provincial Acts of 1891, c. 32, it was sought to amend this proa body corporate employing or directing any person to perform servile labour on Sunday is guilty of performing servile

labour on

66

Sunday within the meaning of the second section of the principal

Act and is liable," etc.

Held, (allowing a writ of prohibition to restrain the stipendiary of the

City of Halifax from proceeding to try and convict the defendant company for a violation of the latter Act) that c. 159 of the Revised Statutes (3rd series) being part of the Criminal Law of Canada, the Legislature of Nova Scotia had no power to alter or amend any of its provisions and that any legislation, such as c. 32 of the Acts of 1891, purporting to have that effect, was ultra vires.

Held, nevertheless, that the Provincial Legislature would have power to deal with the subject by legislation coming under the head of property and civil rights.

MCDONALD, C.J., dissented.

[HALIFAX, Jan. 11, 1898.

This was an application for a writ of prohibition to restrain the Stipendiary Magistrate of Halifax from proceeding to adjudicate upon a complaint made before him against the defendant company, charging them with a violation of R.S. (third series) c. 159, in that the company directed and permitted a motor man, one of their servants, to perform servile labour in the City of Halifax on Sunday, by operating a tram car owned by the company upon and along the streets of the said city, and by carrying passengers in the car and performing the duties of a motorman in connection therewith, such labour being servile labour within the meaning of the said statute, as amended by c. 32 of the Acts of Nova Scotia, 1891, and not being a work of necessity or mercy within the meaning of such statute.

Hon. J. W.Longley, Q.C., Attorney-General, for the Crown.

W. H. Covert, for the defendant company.

GRAHAM, E.J.: Before the British North America Act was passed we had in the Revised Statutes (3rd series) under the part relating to the Criminal Law and the Administration of Criminal Justice, a chapter entitled "Of Offences against Religion." Some of the provisions were repealed by the Parliament of Canada, having found a place in the body of criminal law. Three sections were not repealed or re-enacted. S. 2 is as follows: “Any person who shall be convicted before a justice of the peace of shooting, gambling or sporting, of frequenting tippling houses or of servile labour, works of necessity and mercy excepted, on the Lord's Day, shall for every offence forfeit not less than one, nor more than eight dollars, and in default of payment shall be committed to jail for a term of not less than twelve hours nor more than four days."

There has been legislation purporting to be amendments of this provision passed by the Provincial Legislature, viz. : 1889, c. 5 ; 1890, c. 22; 1891, c. 32. And by the last of these a natural person or body corporate employing or directing any person to perform servile labour on Sunday is guilty of performing servile labour on Sunday within the meaning of the second section of the principal Act, and is liable to penalty, etc.

The first question, I think, is whether the second section relates to a subject coming within "property and civil rights" under s. 92, or "the criminal law" under s. 91 of the British North America Act. Is it aimed at a public wrong, or is it a “shall not" in respect to civil rights? Of course the imposition of a penalty means little. Both Legislatures may impose penalties for the enforcement of their laws by the express terms of the Act. The applicants for the writ of prohibition contend that the subject of this legislation could