SHIP CARRIAGE OF BULLION-BILL OF LADING-IMPLIED WARRANTY. Queensland National Bank v. Peninsular and Oriental S.S. Co. (1898) I Q.B. 557, was an action brought against a steamship company to recover damages for the non-delivery of bullion entrusted to them for carriage from Australia to England. The bill of lading was subject to exceptions of "Robbers or thieves by sea or land, loss by thefts or robberies by sea or land, and whether by persons directly or indirectly in the employment or service of the company, or otherwise," etc., etc.; and the question presented to the Court for adjudication was whether there was any implied warranty in the bill of lading that the bullion room in the ship was reasonably fit to resist thieves, and whether if such warranty was broken the exceptions apply. On these points Mathew, J., gave judgment in favour of the plaintiff, and the Court of Appeal (Smith, Chitty and Collins, JJ.), unanimously affirmed his decision. The contract being for the carriage of bullion, which was to be carried in a room specially intended for that class of freight, the Court of Appeal held that there was an implied warranty that that room was reasonably fit to resist thieves, following in this respect The Maori King v. Hughes (1895), 2 Q.B. 550, and other cases where such an implied warranty of the fitness of the vessel in respect of other kinds of freight has been held to exist. Correspondence. ABSURDITIES IN THE CANADA TEMPERANCE ACT. To the Editor of the Canada Law Journal. SIR, In the Province of Nova Scotia, under the Canada Temperance Act, offenders are tried before a stipendiary magistrate, two justices of the peace or other persons mentioned in the Act. As my objection refers only to cases tried before a stipendiary magistrate or two justices of the peace, I will content myself by referring to them. As matters stand now, if a case is tried before two justices of the peace an appeal lies to the County Court; if the case is tried before the stipendiary magistrate then no appeal lies. Now it might be contended that the cause of this is that legal gentlemen hold the positions of stipendiary magistrates, hence the appeal being taken away. Even if this were true I would not for one moment admit that the right of appeal should not exist. But it is not correct that "gentlemen of the robe" hold the positions of stipendiary magistrates. In fact in the municipalities the reverse is generally the case. By the Towns' Incorporation Act lawyers are appointed recorders, and these gentlemen frequently hold both offices, recorder and stipendiary magistrate, but not always. I have said if the case is tried before a stipendiary magistrate there is no appeal, but the reverse if the case is tried before two justices. Now suppose the case is tried before two magistrates, one of whom is a stipendiary and the other just an ordinary justice, then an appeal lies. Certainly it appears absurd on the face of it that if an information is heard before the stipendiary alone, no appeal, but if before the stipendiary sitting as an ordinary justice, but none the less a stipendiary, and another justice, then the party aggrieved has his appeal. Looking at this matter from a reasonable standpoint the position is absurd and the Act should be so amended that an appeal would lie in any case. As matters stand now the prosecuting officer can lay his information before a favourable stipendiary, and on very weak evidence obtain a conviction, and the defendant is really without remedy. If any legal questions are to be taken advantage of, the defendant, at great expense, has to apply to a Judge of the Supreme Court for a writ of certiorari, and, assuming it is granted, by this time the prosecutor has found out, or possibly knew from the start, he had no right to a conviction, and does not oppose the same being quashed, the result of which is that while the defendant succeeds in quashing a conviction which should never have been entered against him, he does so at his own expense, the costs amounting to as much, if not more, than if he had paid the penalty in the first instance. This is not fair and is onesided legislation of the worst kind. Amend the Act by giving appeal in all cases, and providing that costs shall abide the result of the case, opposed or unopposed, and fair play will be shown on both sides. As the law on the matter stands now great injustice can be, and often is, done to innocent parties who have not the necessary means to pay for expensive litigation to get their rights protected. FAIR PLAY. Ontario] REPORTS AND NOTES OF CASES Dominion of Canada. SUPREME court. HOGABOOM v. RECEIVER-GENERAL. IN RE CENTRAL BANK. [Dec. 9, 1897. Winding-up Act-Moneys paid out of Court-Order made by inadvertence— Jurisdiction to compel repayment-R.S.C. c. 129, SS. 40, 41, 94-Locus standi of Receiver-General-55 & 56 Vict., c. 28, s. 2-Statute, construction of. The liquidators of an insolvent bank passed their final accounts and paid a balance, remaining in their hands, into Court. It appeared that by orders Issued either through error or by inadvertence, the balance so deposited had been paid out to a person who was not entitled to receive the money, and the Receiver-General for Canada, as trustee of the residue, intervened and applied for an order to have the money repaid in order to be disposed of under the provisions of the Winding-up Act. Held, affirming the decision of the Court of Appeal for Ontario, that the Receiver-General was entitled so to intervene, although the three years from the date of the deposit mentioned in the Winding-up Act had not expired. Held, also, that even if he was not so entitled to intervene, the provincial courts had jurisdiction to compel repayment into Court of the moneys improperly paid out. Appeal dismissed with costs. S. H. Blake, Q.C., and W. R. Smythe, for the appellants. Newcombe, Q.C., and F. E. Hodgins, for the Receiver-General. McCarthy, Q.C., for the respondent Holmested. Ontario.] BURNS & LEWIS 7. WILSON. [Dec. 9, 1897. Insolvency -Fraudulent preference-Chattel mortgage-Advances of moneySolicitor's knowledge of circumstances—R.S.O. (1887) c. 124—54 Vict., c. 20 (Ont.)—58 Vict., c. 23 (Ont.). In order to give a preference to a particular creditor, a debtor who was in insolvent circumstances, executed a chattel mortgage upon his stock in trade in favour of a money-lender by whom a loan was advanced. The money, which was in the hands of the mortgagee's solicitor, who also acted for the preferred creditor throughout the transaction, was at once paid over to the creditor who, at the same time, delivered to the solicitor, to be held by him as an escrow and dealt with as circumstances might require, a bond indemnifying the mortgagee against any loss under the chattel mortgage. The mortgagee had previously been consulted by the solicitor as to the loan, but was not informed that the transaction was made in this manner to avoid the appearance of violating the Acts respecting assignments and preferences, and to bring the case within the ruling in Gibbons v. Wilson, 17 Ont. App. R. 1. Held, that all the circumstances necessarily known to the solicitor in the transaction of the business, must be assumed to have been known to the mortgagee, and the whole affair considered as one transaction contrived to evade the consequences of illegally preferring a particular creditor over others, and that, under the circumstances, the advance made was not a bona fide payment of money within the meaning of the statutory exceptions. Appeal allowed with costs. Gibbons, Q.C., for the appellants. Ritchie, Q.C., for the respondent Wilson. John J. Scott, for the respondents, the W. E. Sanford Man. Co. Ontario.] SMALL V. THOMPSON. [Dec. 9, 1897. Mortgage-Married women-Implied contract-Disclaimer. Where a deed of lands to a married woman, but which she did not sign, contained a recital that as part of the consideration the grantee should assume and pay off a mortgage debt thereon and a covenant to the same effect with the vendor, his executors, administrators and assigns, and she took possession of the lands and enjoyed the same and the benefits thereunder without disclaiming or taking steps to free herself from the burthen of the title, it must be considered that in assenting to take under the deed she bound herself to the performance of the obligations therein stated to have been undertaken on her behalf, and an assignee of the covenant could enforce it against her separate estate. Appeal allowed with costs. Armour, Q.C., for the appellant. Aylesworth, Q.C., for the respondent. Ontario.] MALONEY V. CAMPBELL. [Dec. 9, 1897. Conveyance subject to mortgage-Obligation to indemnify-Assignment ofPrincipal and surety - Implied contract. The obligation of a purchaser of mortgaged lands to indemnify his grantor against the personal covenant for payment may be assigned even before the institution of an action for the recovery of the mortgaged debt, and, if assigned to a person entitled to recover the debt, it gives the assignee a direct right of action against the person liable to pay the same. Appeal dis missed with costs. C. H. Ritchie, Q.C. (Boland with him), for the appellant. McPherson and Clark, for the respondent. Ontario.] BANK OF HAMILTON v. HALSTEAD. [Dec. 9, 1897. Banking-Collateral security – R.S.C. c. 120, Schedule “C”—53 Vict., c. 31, ss. 74, 75-Renewals—Assignments. An assignment made in the form "C" to the "Bank Act" as security for a bill or note given in renewal of a past due bill or note, is not valid as a security under the seventy-fourth section of the "Bank Act." The judgment of the Court of Appeal for Ontario (24 Ont. App. R. 152) affirmed. Appeal dismissed with costs. John J. Scott, for appellant. Gibbons, Q.C., and Henderson for respondent. Ontario.] WASHINGTON v. GRAND TRUNK R. W. Co. [Dec. 9, 1897. Railway-51 Vict., c. 29, s. 262 (D.)-Railway crossings-Packing railway frogs, wing-rails, etc.—Negligence. The proviso of the fourth sub-section of section 262 of "The Railway Act," 51 Vict., c. 29 (D.), does not apply to the fillings referred to in the third sub-section, and confers no power upon the Railway Committee of the Privy Council to dispense with the fillings in of the spaces behind and in front of railway frogs or crossings and the fixed rails of switches during the winter months. Judgment of the Court of Appeal for Ontario (24 Ont. App. R. 183) reversed. Appeal allowed with costs. Staunton, for the appellant. McCarthy, Q.C., for the respondents. PERRAULT 7 GAUTHIER. Quebec.] [Feb. 16. Trade union-Combination in restraint of trade-Strikes-Social pressure. Workmen who in carrying out the regulations of a trade union forbidding them to work at a trade in company with non-union workmen, without threats, violence, intimidation or other illegal means take such measures as result in preventing a non-union workman from obtaining employment at his trade in establishments where union workmen are engaged, do not thereby incur liability to an action for damages. Appeal dismissed with costs. Lafleur and Lanctot, for appellant. Geoffrion, Q.C., for respondent. Quebec.] Appeal - Jurisdiction MACDONALD v. GALIVAN. [Feb. 26. Monthly allowance-Future rights-"Other matters and things”—R.S.C. c. 135, s. 29 (b)--56 Vict., c. 29 (D.)-Established jurisprudence in Court appealed from. In an action en declaration de ptaernite the plaintiff claimed an allowance of $15 per month until the child (then a minor aged four years and nine months) should attain the age of ten years, and for an allowance of $20 per month thereafter "until such time as the child should be able to support and provide for himself." The Court below, following the decision in Lizotte v. Descheneau, 6 Legal News, 107, held that under ordinary circumstances, such an allowance would cease at the age of fourteen years. Held, that the demande must be understood to be for allowances only up to the time the child should attain the age of fourteen years and no further, so that apart from the contingent character of the claim the demande was for less than the sum or value of two thousand dollars, and consequently the case was not appealable under the provisions of the twenty-ninth section of “The Supreme and Exchequer Courts Act," and that, even if an amount or value of more than two thousand dollars might become involved under certain contingencies as a consequence of the judgment of the Court below, no appeal would lie. Rodier v. Lapierre, 21 S.C.R. 69, followed. Held, also, that the nature of the action and demande did not bring the |