2. The clause in the policy was applicable rather to cases where the owner neglects or refuses to save the ship than to cases where he is going on with the project of saving her.

3. The owner was clearly prejudiced by the interference of the defendant's agent as the expenses of repairing at St. Thomas were excessive, and the vessel could not be re-metaled or re-classed there, whereas if she had been taken to a northern port as proposed by plaintiff's agent the repairs could have been better effected and at half the cost.

4. The case being one in which there was obscurity and evidence of a contradictory character was peculiarly one for the consideration of the jury and upon which they were especially competent to pass. And their findings were such as reasonable men might have found.

5. The authority of the master and consignees to bind the owner was superseded by the arrival of the plaintiff's agent at St. Thomas, and that if the consignees, after the agent's arrival, accepted the tender for repairs, express authority to do so must be shown.

6. Where repairs are made by the underwriter the owner has the same right to have someone superintend the work that the underwriter has where the repairs are made by the owner.

7. The Court will not set aside a verdict for misdirection unless there has been some substantial wrong or miscarriage (O. 37 R. 6).

8. Proofs of loss are not necessary when the loss need not amount to anything to entitle the plaintiff to recover.

9. Acceptance of the abandonment is an admission of the plaintiff's right to recover.

IO.

When the party with whom the contract is made is identified as the party insured there is not the same reason for requiring proof of interest as where the insurance is effected "for whom it may concern."

II. The finding of the jury that each company by its conduct, reasonably led plaintiff to believe that formal proofs of interest and loss and adjustment were not required, and the evidence showing that defendants' agent, who was present at St. Thomas, knew more about the loss than the owner did, was a reasonable finding.

12. On the authority of Manufacturers Ins. Co. v. Pudsey, that if the answer as to waiver was defective, because the authority of J. B., who purported to act as agent for defendants, was assumed, the Court could deal with the matter and supply a finding as to waiver.

13. There having been an agreement that the trial Judge should submit to the jury "such questions as he decided were proper to be left to the jury." It was held with respect to a question which it was contended the Judge should have submitted, that the question should have been formally offered, and a ruling had upon it, and a note made of the fact.

R. E. Harris, Q.C., and R. C. Weldon, Q.C., for appellant. R. L. Borden, Q.C., for respondent.

Full Court.]

WEATHER BE v. WHITNEY.

[Jan. 22.

Contract for sale of coal mining areas—Plaintiff not entitled to recover alleged price but only damages occasioned by breach-Arrest of defendant - Order for set aside-Claim that equitable title passed—Affidavit held insufficient to support-Where perfected and completed sale is alleged it need not be alleged further that title passed.

Plaintiff brought an action against defendant for the breach of a contract for the sale of a certain coal mining property, claiming among other things the specific performance of the alleged agreement, or, in the alternative, damages for the non-performance thereof. Subsequently to the bringing of the action plaintiff procured an order for the defendant's arrest on the ground that he was about to leave the Province, and that unless he was forthwith arrested the debt would be lost.

Held, (affirming on this point the judgment of Ritchie, J., setting aside the order) that the breach of an agreement for the sale of a mining right does not entitle the vendor to recover the purchase money, but only to damages occasioned by the breach.

It was contended on the part of plaintiff that the equitable title to the areas passed by the agreement, and that this was sufficient to entitle plaintiff to sue for the price of the areas.

Held, that even if this were true, as the only allegation in plaintiff's affidavit was that defendant signed by his agent, and not that he himself signed a note or memorandum of the agreement, this not being an equitable action for specific performance but a common law action to recover a certain sum of money, the alleged price of the areas, that plaintiff could not succeed on that ground in upholding his proceedings.

Held, further, on the authority of Hargreaves v. Hayes, 5 E. & B. 272, (reversing on this point the decision appealed from) that it was not necessary for plaintiff, in his affidavit, in addition to alleging a perfected and completed sale of the coal mining areas to defendant, to allege that the title passed.

W. B. A. Ritchie, Q.C., for appellant. W. B. Ross, Q.C., for respondent.

Full Court.] FULTON V. THE KINGSTON VEHICLE CO. [Jan. 22. Assignment and confession of judgment—Induced by threat of criminal prosecution-Held not ground for setting aside in absence of agreement express or implied to abandon proceedings- Where debtor or delinquent is himself seeking to avoid contract-Held distinguishable-Threat to do that which may lawfully be done-Held not to be duress.

Plaintiffs sought to set aside a deed of assignment made by A. R. F. to the defendant F. in which the defendant company were preferred creditors, and also a judgment confessed to the defendant company at the same time, on the grounds that A. R. F. was induced to make the assignment and confess the judgment, (1.) under threat of criminal prosecution; (2.) by an agreement on the part of defendants to stifle such criminal prosecution if their demand was complied with. A large number of questions were submitted to

the jury, all of which were answered in plaintiff's favour, with the exception of the 8th, which was as follows: "Whether there was any understanding between the defendant company or its directors and A. R. F, either express or implied, to abandon the criminal prosecution if the assignment and warrant to confess judgment were executed," to which the jury answered “No.”

Held, that in the absence of such understanding or agreement the mere fact that threats of a criminal prosecution were employed to induce A. R. F. to give security for a debt admittedly due, and compliance on his part in fear of arrest for the alleged offence, were not enough to invalidate the security given under such circumstances.

Semble, that the case where the debtor or delinquent is himself seeking to avoid his contract is distinguishable from the case where the security is given by a third party in fear of or to save from criminal prosecution a near relative.

Semble, that where the threat is only to do that which may lawfully be done, as a threat of a lawful imprisonment, there is no duress.

H. A. Lovett, for appellants. R. L. Borden, Q.C., and H. McKenzie, for respondents.

Townshend, J.]

PITFIELD V. GUEST.

Fraudulent assignment-Particulars of fraud.

[March 11.

This was an action of replevin against the Sheriff of Yarmouth. The defendant pleaded, inter alia, that the deed of assignment under which the plaintiff claimed (a) was made “for the purpose and with the intent to defraud, hinder and delay the creditors of the grantor, etc." and (b) that the deed “is void under 13 Eliz. c. 5, as hindering and delaying creditors." The plaintiff moved under Order 19, Rule 7, for further and better particulars of the fraud pleaded as aforesaid, citing The Rory, 7 P.D. 121, and Wallingford v. Mutual Society, 5 App. Cas. 701.

Held, that the particulars sought must be refused with costs. The plea of purpose and intent has a well settled meaning and indicates all that can reasonably be asked. It is not such a general allegation of fraud as is mentioned in the cases cited by the applicant. It is as definite as is necessary. The defence of the statute 13 Eliz. is specifically set up, and what that defence means and the evidence required under it are too well known to take anyone by surprise.

J. A. Chisholm, for the motion. Ernest Gregory, contra.

Full Court.]

Province of Danitoba.

QUEEN'S BENCH.

CARRUTHERS v. HAMILTON PROVIDENT.

[March 5.

Mortgagor and mortgagee-Negligence in exercising power of sale. Appeal from decision of Bain, J., noted ante p. 51, dismissed with costs, but verdict reduced by $200.

C. H. Campbell, Q.C., for plaintiff. J. S. Ewart. Q.C., and A. D. Cameron for defendant.

Full Court.]

CRAYSTON 7. MASSEY-HARRIS CO.

[March 5.

County Courts-Jurisdiction-Extent of Equitable relief. County Court appeal. The plaintiff sued to recover back money paid by him to the defendant company under stress of a seizure of his crop by the bailiff, and for damages for trespass to goods. It was shown at the trial that the plaintiff had given the company by mistake a chattel mortgage for an amount larger than he really owed them, and that at the time the bailiff made his demand the plaintiff really owed the company nothing; that the plaintiff gave a bond for the forthcoming of the goods to induce the bailiff to withdraw and subsequently sold enough of the grain and paid the amount demanded. Plaintiff had a verdict for the amount overpaid and $10 for the trespass.

Held, that County Courts in Manitoba have no jurisdiction to rectify written instruments for fraud or mistake or to entertain an action for the recovery of money paid under the strict terms of such an instrument. S. 60 of the County Courts' Act only gives jurisdiction in personal actions, and the limitations as to amounts show that purely money demands are contemplated. If equitable claims are to be entertained at all they must be equitable debts or demands of cognate character to legal ones coming under the terms used. The plaintiff was liable at common law for the full amount of the mortgage he had signed and sealed. A recital in it estopped him and he could have had no defence to an action on the covenant for the full amount, and the license to seize the grain would have been an effectual defence to any action of trespass. Money paid under such a contract could not have been recovered back at law; and the County Court, having to right no rescind or rectify the chattel mortgage or to declare it satisfied, could not exercise an equitable jurisdiction to adjudge re-payment of the money : Foster v. Reeves (1892), 1 Q.B. 255. The provision in section 70 of "The County Courts' Act," that the judge "may make such orders, judgments or decrees thereupon as appear to him just and agreeable to equity and good conscience," does not authorize him to give the relief that the plaintiff would be entitled to in a court possessing general equitable jurisdiction. It and section 71 come under the heading "Practice and Procedure," and only apply to orders and decrees in actions within the jurisdiction of the court as defined by section 60, and deal only with the practice and procedure in such actions, and with the manner in which the judges are to dispose of such actions at the trial: Ahrens v. McGilligat, 23 U.C.C.P. 171. The jurisdiction of the County Court being confined to personal actions which constitute one of the three divisions into which civil actions maintainable in the old common law courts were divided, and it being a rule of construction that when technical words are used in reference to a technical subject, they will prima facie be understood to be used in the sense they have acquired in that subject, it is open to question if the legislature intended to give jurisdiction to entertain any causes of action but such as might have been sued for as personal actions in the courts of common law; and at all events the words do not include a claim to reform or cancel a deed for fraud or mistake. Appeal allowed with costs, and non-suit entered in the County Court.

Howell, Q.C., for plaintiff. Culver, Q.C., for defendant.

Dubuc, J.]

RITZ v. SCHMIDT.

[March 11.

Practice-Service of process-Leave to defend -Setting aside judgment. Motion by the defendant Frose to set aside the judgment recovered by plaintiffs against the defendants by default for possession of a farm and a writ of hab. fac. poss. and the proceedings and dellvery of possession thereunder. The plaintiffs bought the land in question at a sale held by order of the Court in a suit commenced by one Russell to realize the amount of a judgment against the defendant Schmidt, and had obtained an order to the Court vesting the title in them; but, as defendants had refused to give up possession, this action was necessary. Defendants made affidavits that they had never been served with any statement of claim and had no knowledge of the proceedings in this action. They also denied service of any papers or notices in the former suit in which the vesting order had been made, and claimed that the same had never in any manner been brought to their knowledge and that they had a good defence to the action on the merits; that the land in question was the homestead of the defendant Schmidt before he conveyed it to the defendant Frose; and that the land was exempt from sale under legal process. The affidavit of service on the defendants stated that true copies of the statement of claim had been personally served on the defendants by delivering the same to, and leaving the same with, the defendants respectively at their houses and that they refused to accept the same and the bailiff left the copies at the houses on the land described in the affidavits.

Held, on the authority of Thompson v. Pheney, 1 Dowl. 441, that personal service requires that the process should be shown to have come to the notice of the person to be served, or that he has been informed of the nature of the process, when it will be sufficient to throw it down before him and leave it there; and, as such was not shown to have been done in this case, the service was not effectual, more especially as the defendants were Mennonites, and did not understand English; and that defendants should be allowed to put in their defence to the action within fifteen days.

The evidence disclosed on the affidavits as to the merits of the defence raised not being satisfactory or convincing.

Held, following O'Sullivan v. Murphy, 78 L.T. 213, that none of the proceedings should be set aside in the meantime, and plaintiffs should be allowed to remain in possession of the property. Costs of the application reserved

until after the trial of the action.

Phippen, for plaintiffs.

Wilson, for defendants.

HUTCHINGS v. Adams.

Principal and agent-Assignment for creditors--Sale of goods.

Appeal from a County Court. One Pifer, who had been carrying on a business as a general trader in Oak Lake, being in embarrassed circumstances, made a transfer of his stock in trade and other property to the defendant in trust for certain creditors, and a written agreement was entered into between Pifer and the defendant which provided among other things that the former