val by certiorari of a conviction of the defendant into the High Court, the magistrate, who had made the conviction, moved to have an affidavit filed by the defendant, removed from the files of the court, which was refused with costs payable by the magistrate to the defendant; but subsequently under the belief that ss. 897, 898 of the Code applied, the defendant obtained an ex parte order, varying the previous order by making the costs payable to the clerk of the peace, and then to the defendant. An appeal to the Judge of the High Court sitting in Weekly Court, was dismissed; but an appeal therefrom, and also by leave, direct from the amended order, was allowed, and the order set aside. The Judge of the High Court sitting in Weekly Court has no power to entertain an appeal of this kind.

DuVernet and Woods for the police magistrate. Murphy, Q.C, contra.

DAVIS V. TAEGER.

MacMahon, J.]
[March 4.
Security for costs-Plaintiffs out of the jurisdiction-Judgment by default-
Defendant allowed in to defend on terms.

The plaintiffs, in an action to recover $4,500 upon a bond, resided out of the jurisdiction, and the writ of summons was so endorsed. The defendant appeared, but failed to deliver a statement of defence, and judgment for the plaintiffs was entered upon default, which the defendant moved to set aside, and an order was made allowing the defendant in to defend on terms of paying costs, paying $100 into Court to answer plaintiff's future costs, and providing further that the judgment and execution issued thereon should stand as security for the plaintiffs' claim. The defendant paid the costs and paid the $100 into Court, and then delivered a statement of defence, and issued and served a præcipe order upon the plaintiffs for security for costs, which the plaintiffs moved to set aside.

Wyld, for the motion, contended that the defendant, being allowed in on terms, was now the actor, and was not entitled to security, citing Doer v. Rand, 10 P.R. 169; Exchange Bank v. Barnes, 11 P.R. 11 ; Thibaudeau v. Herbert, 16 P.R. 420; Walters v. Duggan, 17P .R. 359.

R. V. Sinclair, for the defendant.

Præcipe order set aside with costs.

Armour, C.J., Falconbridge, J., Street, J.]

REGINA V. HOLMES.

[March 7.

Criminal law-Criminal Code, s. 210-Neglect to support wife-Former marriage-Proof of death of first husband—Conviction.

The defendant on the complaint of his wife was convicted under sub-sec. 2 of s. 210 of the Code of refusing to provide necessaries for her. The evidence showed that the parties were married in 1890, but that the complainant had been married to one W. in 1886, though she had never lived with him ; that in 1888 she had received a letter stating he was dying in the United States, and that that was the last she heard of him, save that about a year after her marriage to H. she again heard that he was dead.

No further proof of the death of the first husband was given.

Held, that there was evidence to go to the jury of the death of the first husband, and that the defendant was properly convicted.

J. R. Cartwright, Q.C., for Crown. J. M. Godfrey, for defendant.

Rose, J.]

[March 7.

IN RE MCGILLIVRAY AND CHESTERVILLE PUBLIC SCHOOL. Public schools-Dissolution of Union school section-Power of arbitrators— 59 Vict., c. 70, O., ss. 43, 44.

Proceedings having been taken under the provisions of The Public Schools Act, 1896, 59 Vict., c. 70, O., for the dissolution of the Union school section hereinafter mentioned, arbitrators appointed by the county council under s. 44 of the Act, provided by their award that "Union school section No. 8 of Winchester Township, comprising the incorporated village of Chesterville and rural section No. 8 in said township, be dissolved, and that all the parcels of land included within the boundaries of rural section No. 8 be attached to and form the same for school purposes, and that all the parcels of land included within the boundaries of the village of Chesterville shall remain attached to and form the urban section of Chesterville village for such purposes.

Held, that though the language was in part insensible, the effect of it was to dissolve the union, recognizing the village as a corporation subject to the provisions of ss. 53 & 54 of the Act, and school section No. 8 as a non-union school section subject to the provisions of certain other sections; and that the award was valid as an exercise of power under sub-secs. 5 or 6 of s. 43. Aylesworth, Q.C., for the motion to set aside the award. B. C. Clute, Q.C., and Hilliard, contra.

Meredith, J.]

ORFORD V. FLEMING.

[March 21.

Solicitor-Charging order-Rule 1129—“ Property”—Judgment— Assignment -Notice-Taxation of costs-Sale of judgment.

An application made under Rule 1129, by the solicitors who obtained on behalf of the plaintiff a judgment in the High Court for the recovery of money from the defendant, for an order charging their costs upon the judgment debt. Previous to the application the judgment had been assigned by the plaintiff to the mother of the defendant. Rule 1129 is new in Ontario, and is as follows: "I. Where a solicitor has been employed to prosecute or defend any cause, matter or proceeding, it shall be lawful for the Court in which the cause, matter or proceeding has been heard or is pending, or for a judge thereof, to declare such a solicitor to be entitled to a charge upon the property, of whatever nature, tenure or kind, recovered or preserved through the instrumentality of such solicitor; and upon such declaration being made, such solicitor . . shall have a charge upon and against and a right to payment out of the property so recovered or preserved, for the taxed costs, charges and expenses of or in reference to such a cause, matter or proceeding and all conveyances and acts done to defeat, or which may operate to

defeat, such charge or right shall, unless made to a bona fide purchaser for value without notice, be absolutely void and of no effect as against such charge of right.

2. The court or judge may make such order for taxation of such costs, charges and expenses, and for the raising and payment of the same out of the said property as may seem just.

Held, following Birchall v. Pugin, L.R. 10 C.P. 397, that the judgment debt was "property" within the meaning of the Rule.

Held, also, upon the facts, that the assignment was not to a bona fide purchaser for value without express notice; but, even if there were no express notice, the assignee must, following Cole v. Eley (1894), 2 Q.B. 180, be taken to have notice of the solicitors' lien, for she was buying a judgment debt, and the implied notice she would have would be notice within the meaning of the Rule.

An order was made for the taxation of the costs of the action and of this application, declaring the applicants entitled to a charge upon the judgment for the amount which should be taxed, and directing that such amount should be raised and paid out of the judgment by a sale thereof.

W. R. P. Parker, for applicants.

Meredith, J.]

Coatsworth, contra.

WINCH V. TRAVISS.

[March 23.

Arrest Discharge Failure to deliver statement of claim-Rule 1044Extension of time-Rule 353-Terms.

Under the present practice there is power, after the expiration of the time appointed by Rule 1044 for the delivery of the statement of claim, where a defendant is detained in custody under an order for arrest, to extend the time. The case is within Rule 353, and the wording of Rule 100 of the Rules of Trinity Term, 1896, has been altered from "shall have been given" to "is given" in Rule 1044.

Where the statement of claim was delivered two days after the month had expired, and the defendant moved for his discharge, an order was made validating it for all purposes, upon terms as to speedy trial and payment of

costs.

C. C. Robinson, for the plaintiff. C. Millar, for the defendant.

ASSESSMENT CASES.

Dartnell, Co. J.] GRAND TRUNK RAILWAY Co. v. Port PERRY.
Assessment-Railways-Tank and platform -Sub-tenant.

Appeal from the Court of Revision of the village of Port Perry. Held, water tanks and platforms are part of the superstructure of a railway and are not assessable.

2. The assessment of a sub-tenant of a railway company should be deducted from the total assessment.

E. Donald, for appellants. Yarnold, for respondent.

Dartnell, Co. J.]

HARRIS V. TOWNSHIP OF WHITBY.

Assessment-Parsonage.

Appeal from the Court of Revision of the township of Whitby.

In 1885 two acres of land were conveyed to the Church Society in trust for a churchyard and burial ground for the use of the members of the Church of England. A church and subsequently a parsonage were erected thereon.

Held, that since 1890 the parsonage and a reasonable curtilage surrounding it were liable to taxation for municipal purposes.

Province of Nova Scotia.

SUPREME COURT.

Graham, E.J.] NORTH SYDNEY MINING Co. v. GREENER.

Equitable execution—Application for appointment of receiver by way of, under R.S.N.S. c. 104, s. 13, s.-S. 7—Mere convenience not sufficient ground— O. 40, Rules 34, 35.

Application for a receiver by way of equitable execution to realize an amount due to the defendant as mortgagee (the mortgage being not yet due). Under R S. N.S., c. 104, s. 13, s.-s. 7, enabling the court to appoint a receiver in all cases in which it shall appear to "be just or convenient" to do so. Under R.S. N.S. c. 104, Ord. 40, R. 34, 35, the sheriff may take mortgages in execution and either collect them in his own name, or assign them to the creditor in satisfaction of the execution.

Held (refusing the application), that the provision enabling the court to appoint a receiver did not alter the law which existed before it was passed as to the circumstances in which a receiver would be appointed, and that it would not do so merely because it would be a more convenient way of obtaining satisfaction of a judgment than the usual mode of execution. Harris v. Beauchamp Brothers (1894), 1 Q.B. 801. Holmes v. Millage (1893) 1 Q.B. 551. Manchester Banking Co. v. Parkinson, 22 Q.B.D. 173. Cases decided in respect to a similar provision in England followed. [See also Pacific Investment Co. v. Swann, ante p. 107.]

W. A. Henry, for plaintiff. F. Mathers, for defendant.

Full Court.]

[Jan. 15.

MCLEOD V. THE INSURANCE CO. OF NORTH AMERICA. Marine insurance-Policy on hull and freight-Acceptance of abandonment -Admission of right to recover-Duty of company undertaking to repair -Owner prejudiced by -Right of owner to inspect work-" Boston clause" -Construction-Evidence - Matters peculiarly for jury-Authority of master and consignee superseded by arrival of special agent-Proofs of loss-Right of court to supply finding-Substantial wrong or miscarriage must be shown—O. 37, R. 6.

The brigantine "Hattie Louise," owned by plaintiff and insured by the defendant companies under policies on the hull and freight, left Trinidad for Vineyard Haven with a cargo of molasses. Shortly after leaving port she encountered heavy weather, and put into the port of St. Thomas, W. I., in a leaky condition.

A survey was called which resulted in the cargo being ordered to be discharged and stored, and the vessel placed upon the slip for repairs, but before anything was done under the surveyors' report, J. B., an agent of the defendant companies, and W. H. B.. the plaintiff's agent, arrived at St. Thomas by the same vessel, and several interviews took place with a view to determining what course should be pursued. This resulted in a disagreement, the plaintiff's agent insisting that the cargo should be trans-shipped, and the vessel taken to a northern port, after making temporary repairs, while the agent for the insurers insisted upon the vessel being permanently repaired at St. Thomas, and carrying her own cargo forward. Notice of abandonment was given on December 28th by letter addressed to the defendant companies. In consequence of the failure on the part of the agents to come to an agreement, the plaintiff's agent withdrew from the project of repairing the vessel, and the work of effecting repairs was proceeded with by the defendant's agent. After the vessel was taken off the slip and the cargo reloaded, it was found that the vessel was still leaking badly, and was unseaworthy, and that it would be necessary to again discharge the cargo. At this time the disbursement account had run up to $4,014.48, and the vessel, which was valued in the first instance at $6,000, had not been re-metaled or re-classed. An attempt was made to raise money on bottomry, but failed on account of the leaky condition of the vessel, and as the consignees refused to allow the cargo to be discharged a second time, until the claims were paid, she was finally sold under process to recover the claims. The policies contained what is known as the “Boston clause," under which it is stipulated that "the acts of the assured or insurers in recovering, saving, and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of the abandonment." The jury found among other things that there was an acceptance of the abandonment.

Held, 1. The underwriters having intervened for the purpose of making permanent repairs the repairs must be thorough and made within a reasonable time; otherwise they must be held to have accepted the abandonment.