for other persons. The widow on the testator's death took possession of the estate and paid the debts and funeral expenses; and on her death a considerable portion of the estate still remained undisposed of. The question then arose whether the gift over took effect. Byrne, J., held it to be inoperative, and that the widow took absolutely, and her absolute interest was not cut down to a life interest by anything contained in the will, or by the attempted gift over on her decease.

COMPANY-WINDING UP-SURPLUS ASSETS, DISTRIBUTION OF.

In re Driffield Gas Co. (1898) 1 Ch. 451, Wright, J., discusses the proper method of distributing surplus assets upon a winding up of an unlimited company, and determines that it must be governed by the articles of association when they make provision therefor. In the case of the company in

question the deed of settlement provided that upon a winding up, the residue, after paying debts was to be divided between the shareholders for the time being "in proportion to their respective shares." The shares were £10 each. Some had been paid in full, some partly paid, and some had been issued at a premium; and Wright, J., held that the surplus must first be applied in returning the paid up capital, and the balance must be distributed amongst all the shareholders in proportion to the nominal amount of their shares, without regard to premiums paid by any of the shareholders, or the manner in which dividends were payable, or had in fact been paid.

Jurisdiction-60-61 Vict., c. 34 (D.), s. 1—Amount in dispute.

Action by an assignee for the benefit of creditors to set aside as a preference a mortgage given by one member of an insolvent firm, upon his individual real estate, within sixty days before making an assignment for the benefit of creditors. The mortgage was to secure an indebtedness by the insolvent firm, amounting to $2,200. Before the action came on for trial, the real estate comprised in the mortgage was sold to a prior mortgagee, who, after satisfying his own claim, paid the whole surplus, amounting to $270, to the appellant, Jermyn. The action was tried before the Chancellor on the 12th of April 1897, and he declared the mortgage to be void, and ordered Jermyn to pay over the $270 to the respondent Tew. On appeal to the Court of Appeal for Ontario, BURTON, C.J.O., and MACLENNAN, J.A., were of opinion that the appeal should be allowed, OSLER, J.A., and Moss, J.A., were of opinion that it should be dismissed. The appellant thereupon appealed to the Supreme Court of Canada. Upon the application of the appellant to have the appeal allowed and the security approved under s. 46 of the Supreme Court Act objection was taken that under 60-61 Vict., c. 34 (Dom.), s. 1 (C.), no appeal lay, as the amount in controversy in the appeal did not exceed the sum of $1,000. MACLENNAN, J.A., held that under sub-sec. (f) of the same clause $270 could not be considered as the amount in controversy, and also that the title to real estate or some interest therein was in question, and that an appeal would lie under sub-sec. (a) of the same clause. The appeal was accordingly proceeded with, the appeal case was settled and printed, and factums were delivered by the appellant and respondent, and the appeal entered for hearing. Upon the appeal being called,

Nesbitt, for the respondent, objected that under the circumstances there could be no appeal.

H. Cassels, for appellant, contra.

The Court (Sir HENRY STRONG, C.J., TASCHEREAU, GWYNNE, Sedgewick, and KING, JJ.), unanimously allowed the objection and quashed the appeal, but, under the circumstances, with costs only as of a motion before a Judge in Chambers. The Court was of opinion that sub-sec. (f) could not affect the construction of sub-sec. (c), and that as the only possible result of the appeal would be the determination of who should receive the $270, the case was governed by sub-sec. (c), and did fall under sub-sec. (a).

Burbidge, J.]

EXCHEQUER COURT.

IN RE MELCHERS AND DE KUYPER.

[March 7.

Trade mark-Resemblance between-Refusal to register both— Grounds of. The object of s. II of the Act respecting Trade Marks and Industrial Designs (R.S.C., c. 63), as enacted in 54-55 Vict., c. 35, is to prevent the registration of a trade mark bearing such a resemblance to one already registered as to mislead the public and render it possible that goods bearing the trade mark proposed to be registered may be sold as the goods of the owner of the registered trade mark.

2. The resemblance between the two trade marks justifying a refusal by the Minister of Agriculture in refusing to register the second trade mark, or the Court in declining to make an order for its registration, need not be so close as would be necessary to entitle the owner of the registered trade mark to obtain an injunction against the applicant in an action of infringement.

3. It is the duty of the Minister to refuse to register a trade mark when it is not clear that deception may not result from such registration: Eno v. Dunn, 15 App. Cas. 252; and In re trade mark of John Dewhurst & Sons, Ltd. (1896), 2 Ch. 137, referred to.

T. Brosseau, for applicants. A. Ferguson, Q C., and C. S. Campbell, for opposants.

YULE 2. THE QUEEN.

Burbidge, J.] [April 4. Constitutional law-8 Vict. (P.C.), c. 90-B.N.A. Act, 1867, s. 111-Liability of Province of Canada existing at time of Union—Jurisdiction—Arbitration-Condition precedent to right of action—Waiver.

By the Act 8 Vict. (P.C.), c. 90, Y. was authorized at his own expense to build a toll-bridge with certain appurtenances over the River Richelieu, in the parish of St. Joseph de Chambly, P.Q., such bridge and appurtenances to be vested in the said Y., his heirs etc., for the term of fifty years from the passing of the said Act; and that at the end of such term the said bridge and its appurtenances should be vested in the Crown and should be free for public use, and that it should then be lawful for the said Y., his heirs, etc., to claim and obtain from the Crown the full and entire value which the same should at that time be worth, exclusive of the value of the tolls, such value to be ascertained by three arbitrators, one of which to be named by the governor of the province for the time being, another by the said Y., his heirs, etc., and the third by the said two arbitrators. The bridge and its appurtenances were built and erected in 1845, and Y. and his heirs maintained the same and collected tolls for the use of the said bridge until the year 1895, when the said property became vested in the Crown under the provisions of the said Act.

Held, that upon the vesting of the bridge and its appurtenances in the Crown, the obligation created by the said statute to compensate Y. and his heirs, etc., for the value thereof was, within the meaning of the 11th section of "The British North America Act, 1867," a liability of the late Province of Canada, existing at the Union, and in respect of which the Crown, as represented by the Government of Canada, is liable.

2. That the Exchequer Court had jurisdiction under clause (d) of the 16th section of the Exchequer Court Act, in respect of a claim based upon the said obligation, it having risen under the said provision of the B.N.A. Act, 1867, which, for the purposes of construction of the said 16th section of the Exchequer Court Act, was to be considered a law of Canada.

3. That under the wording of the said Act, 8th Vict. (P.C.), c. 90, no lien or charge in respect of the value of the said property existed against the same in the hands of the Crown.

4. Where both the Governments of Ontario or Quebec, on one or both of which the burden of the claim would ultimately fall, had expressed a desire that the matter should be determined by petiition of right and not by arbitration, and where the suppliants, with knowledge thereof, had presented their petition of right praying that a fiat thereon be granted, or, in the alternative, that an arbitrator be appointed by the Crown, naming their arbitrator in case that course were adopted, and the Crown on that petition had granted a fiat that “right be done," even if the appointment of arbitrators for the purpose of ascertaining the value of the said bridge and its appurtenances, as provided in 8th Vict. (P.C.), c. 90, constituted a condition precedent to a right of action accruing for the recovery of the same, such a defence must, under the above circumstances, be held to have been waived by the Crown.

E. Barnard, Q.C., W. D. Hogg, Q.C., E. Lafleur, for suppliants. Solicitor-General and E. L. Newcombe, Q.C., for respondent.

Second Division.]

Province of Ontario.

COURT OF APPEAL.

SEYFANG V. MANN

[Feb. 14.

Chose in action-Assignment of--Novation-Set off.

A firm of G. & P., which had contracted with defendants to supply them with a number of bicycles, was subsequently dissolved, G. retiring and S. taking his place. The notice of dissolution stated that the business would be carried on by S. & P., who would pay the indebtedness of the firm, and who were alone authorized to collect its debts, and by the agreement of dissolution, the partners released each other from all liability, and it was agreed that all the claims of the firm belonged to and would be collected by S. & P. as the owners thereof. The defendants wrote the new firm notifying them of the contracts they had made with the firm before dissolution, on which they said they had a large claim for damages for non-fulfilment, and trusted the new firm had made this a consideration in the change of the firm; that they were ready at any time to settle up their account, but must first have a settlement of their claim for damages. The plaintiffs in answer, disputed the defendants claim for damages, but not on the ground that they, plaintiffs, had not undertaken to pay the liabilities of the old firm.

Held, that what took place constituted a novation, and the defendants' were therefore entitled to claim against the plaintiffs the damages which the defendants had sustained through the breach of the contract, but that such damages must be limited to the damages arising from breaches occurring prior to the dissolution.

Aylesworth, Q.C., and Cronyn, for defendants. R. D. Gamble, and I. F. Hellmuth, for the respondents.

From Street, J.]

MOORHOUSE v. KIDD.

[May 5.

Principal and surety-Counter security-Right to enforce-Depreciation— Contribution.

Where the principal debtor gives to his sureties counter-security by mortgage of real estate, any of the sureties is entitled, after the principal debtor's default, to enforce the security without the consent or concurrence of the others, and it is not an answer to a claim for contribution by one surety who has paid the whole debt that the security has depreciated in value, and that the paying surety has refused to take any steps to enforce it. Judgment of STREET, J., 32 C.L.J. 680; 28 O.R. 35, affirmed.

McCarthy, Q.C., for appellant. Aylesworth, Q.C., for respondent.

From Boyd, C.]

RICE V. TOWN OF WHITBY.

Municipal corporations-Highway-Obstruction.

[May 5.

A house which was being moved from one part of a town to another, was allowed to stand over night upon one of the streets, without a watchman or warning light. The plaintiff's horse while being driven past the house that night took fright and the plaintiff was injured. Some of the town councillors knew that the house was to be moved and that it had been left standing upon the street for the night.

Held, assuming that the house was an obstruction to the highway, there was not sufficient notice or sufficient lapse of time to impose liability upon the corporation. Judgment of BOYD, C., 33 C.L.J. 691; 28 O.R. 598, reversed. C. J. Holman, for appellant, the third party. Aylesworth, Q.C, and Farewell, Q.C., for the town. W. R. Riddell, for respondent.

From Rose, J.]

MCMILLAN v. MUNRO.

[May 5.

Registry law-Priorities-Mortgage for balance of purchase money. The plaintiff agreed to sell a parcel of land, one-half of the purchase money to be paid in cash and the other half to be secured by a mortgage thereon. A deed and mortgage were prepared and executed, the cash payment made, and the deed delivered to the purchaser. The mortgage was delivered to the vendor's agent to be registered. The purchaser had obtained the cash payment from the defendant upon the security of a first mortgage upon the land in question, and this mortgage was prepared, executed and delivered before the execution and delivery of the deed, and was registered before the deed and before the mortgage to the plaintiff. Upon receiving the