ship, proceeded against to recover another claim in a British Court of Vice Admiralty, and this claim was for money advanced in a home port, to pay for repairs, etc, executed in the home port, and is a claim for necessaries, and that this action cannot be maintained because it comes within the exception in s. 5 of Admiralty Courts Act, 1861, 24 Vict., c. 10 (Imp.): The Mecca, Probate Div., 1895; The Albert Crosby, 3 A. & E. 37; The Sophia, W. Rob. 368 ; The Riga, 3 A. &. E. 516.

Held, that payment by the agent of the owner satisfied and discharged any original claim of workmen or supply-men to the extent of such payments: that the assignment to plaintiff agent did not alter the nature of the transaction between plaintiff and owner. The $2,000 being advanced by plaintiff to owner in home port, and being recoverable as necessaries, the express terms of s. 5, 24 Vict., c. 10 (Imp.) prevent the claim being sued for in this Court. Leggatt, for plaintiff. Cameron and Robinson (St. Thomas), for other claimants intervening.

McDougall, Loc. J.]

MCELHANEY V. THE "FLORA."

Seamen's wages-Lien-Musician.

The plaintiffs were musicians, and had an arrangement with the master of the boat that they should have the privilege of meals and state rooms on the boat, and the right to collect from passengers gratuities for musical entertainment furnished.

Held, as there was no contract to pay them wages, they were not seamen within the meaning of the Merchants' Shipping Act, and were not entitled to claim any sum for their services on the said boat, nor were they entitled to set up a maritime lien.

Robinson (St. Thomas) for plaintiff. Cameron (St. Thomas) for plaintiffs in consolidated action intervening.

McDougall, Loc.J.]

BROWN 7. THE FLORA.

Seamen's wages-Caretaker-Lien.

Claim for a lien and for wages earned while acting as watchman on the ship "Flora" during the winter of 1896-97, while the vessel was lying dismantled at a dock in Detroit; the duties performed by the plaintiff were keeping the vessel clear of snow and pumping out any water that accumulated in the hull.

Held, that the plaintiff could not rank as a seaman even within the broad lines laid down in the cases; that his services could only be regarded as being those of a landsman or shore laborer engaged by the owner to perform the duties of watchman. The vessel was not in commission or even preparing for a voyage; she was dismantled, a portion of her machinery had been removed, and she had neither master nor crew; and, though still in a legal sense a ship, she was really little better than a hulk: The Harriet Olcott, Abb. Adam 299 ; The John T. Moore, 3 Woods (U.S.) 61 ; Phillips v. Thomas Scattergood, 1 Gilp. ; Turner v. Crocket, Abb. 490; The Island City v. Towell, U.S. 375.

Hanna (Windsor), for plaintiff. Cameron (St. Thomas), for plaintiffs in consolidated action intervening.

Seaman's wages-Man in charge of confectionery stand--Lien.

The plaintiff was engaged on an excursion and passenger boat to look after the confectionery stand; and performed services for about six weeks; the vessel had to employ persons in various capacities in order to successfully carry on the line of business in which she was engaged. The Merchants' Shipping Act, 1854, s. 2, declares that for the purposes of the Act" seaman" shall include every person (except masters, pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship," and the interpretation clause of the Inland Waters Seaman's Act, R.SC. c. 75, defines " seaman as "every person employed or engaged in any capacity on board any ship, except masters and pilots.

Held, that the plaintiff was entitled to a maritime lien for wages due. Hanna (Windsor), for plaintiff. Cameron (St. Thomas), for plaintiff in consolidated action intervening.

Meredith, J.]

Province of Ontario.

HIGH COURT OF JUSTICE.

ORFORD V. FLEMING.

Solicitor-Charging order-Form of.

[March 21.

In this case, noted ante 238, the order, as drawn up and settled, contained no provision for the sale of the judgment charged with the costs of the plaintiff's solicitors. The order was issued in the following form:-1. It is ordered and declared that the applicants are entitled to a charge on the judgment debt or sum mentioned in the notice of motion, and recovered in this action by judgment bearing date . . for the taxed costs, charges and expenses of the said applicants, of or in reference to such suit, as solicitors for the plaintiff, including the costs of and incidental to this application. 2. And it is further ordered that it be referred to one of the taxing officers to tax such costs as between solicitor and client, including the costs of and incidental to this appli

cation.

(It appears to have been contemplated that another application should be made after the taxation, if necessary, for an order to enforce the charge.) W. R. P. Parker, for the applicants. Coatsworth, contra.

Rose, J.] MALCOLM V. PERTH MUTUAL FIRE INSURANCE CO. [March 28. Malicious prosecution-Finding by jury of reasonable and probable causeBona fides-Malice.

In an action for malicious prosecution brought against an insurance company by reason of its laying an information charging the plaintiff with arson, and causing his arrest thereon, the jury found that the company's officers who

laid the charge, believed it to be true; but that such belief was not under the circumstances reasonable, and that they did not act on it laying the charge, and causing the arrest, but that they were actuated by other and improper motives.

Held, that the first finding, being a finding that the defendants acted on their honest belief, and the evidence warranting that finding, absence of reasonable and probable cause could not be held to have been shown, simply because further enquiries might have been made and further facts shown; that the question of malice was of no importance, and the defendants were entitled to judgment.

Brewster and Heyd, for plaintiff. Maybee, for defendants.

Street, J.]

RE BROWN v. CAMPBELL.

[April 7.

Will-Estate tail-Dying without issue-R.S.O. c. 128, s. 32-Construction of.

Sec. 32 of the R.S.O. c. 128, is to be construed strictly, and is confined to cases in which the word “issue," or some word of precisely the same legal import is used; and does not extend to cases in which the word "heirs" is used.

Where a testator devised to his grandson, his heirs and assigns forever, certain land with the qualification that in case of his "dying without leaving any lawful heirs " the land was to go to other persons named, the section was held not to apply, and that the grandson took an estate tail.

F. Denton, for petitioner. C. C. Robinson, contra.

Armour, C.J., Falcon

bridge, J. Street, J. J HENDRIE v. Onderdonk.

[April 21.

Railways-Construction-Damages caused by negligence—Action for, against sub-contractors—Limitation clauses--Dominion and Ontario Railway Acts. The defendant was a sub-contractor for the construction of a tunnel on the line of a railway company, authorized by statute to construct the railway running through a city. In the course of the work the contractor cut the drains and water pipes connected with an adjoining house, of which the plaintiff was tenant, and prevented access to the house for a time; the plaintiff's goods were also damaged by blasting, and by dust and smoke occasioned by the work of construction. In an action for damages,

Held, (1.) That as no negligence in doing the work was shown the plaintiff could not succeed. (2.) That even if a remedy by action was open to the plaintiff, that as the railway company when it was brought within the jurisdiction of the Dominion Legislature by 54-55 Vict., c. 86 (D.), preserved its right to set up the limitation clause in the Ontario Act, R.S.O. (1887) c. 170, s. 142, and this statute could be pleaded in bar to the action as well as the limitation clause in the Dominion Railway Act (51 Vict., c. 29, s. 287); that this defence was available to the contractor, and the action not having been commenced within six months from the time the damage was sustained was too late.

Wallace Nesbitt, for the plaintiff. Dyce W. Saunders, for the defendant.

Divisional Court.]

CLARK V. KEEFER.

[April 25.

Will-Trustees to sell for best price-Power coupled with trust-Discretion of trustees-Right of Court to enforce trust.

Where a power is coupled with a trust or duty, the Court will enforce the proper and timely exercise of the power, but will not interfere with the discretion of the trustees as to the particular time and manner of their bona fide exercise of it. Where, therefore, lands were devised to trustees upon trust, in their discretion to sell, as soon as they might deem it proper to do so, for the most money that could reasonably be obtained therefor; the trustees by a later clause, not to be answerable for the exercise or non exercise of the powers therein contained, or to the manner of the exercise thereof.

Held, that the power of sale was coupled with a trust to sell for the most money, etc., and that the Court would enforce such trust by requiring the most money to be obtained; the powers of the Court being in no way affected by the later clause exonerating the trustees, which extended merely to the time and manner of exercising the trust.

G. G. S. Lindsey, for plaintiff. B. B. Osler, Q.C., for defendant.

Ferguson, J., Robertson, J.,

Meredith, J.

REGINA V. EDWARDS.

[May 6.

Criminal Code, s. 821-Indictment for rape-Conviction of common assault— Time within which complaint laid.

Notwithstanding the provisions of s. 841 of the Criminal Code a prisoner indicted for rape may be found guilty of common assault, although the complaint was not made or information laid within six months from the time when the matter of complaint or information arose.

Cartwright, Q.C., Deputy Attorney-General for the Crown.
Faulds, for the prisoner.

Divisional Court.]

DAVIDSON v. HEAD.

[May 9.

Division Courts—Claims over $100-Dispensing with taking down evidence— Necessity for written consent.

The consent required by ss. 22-123, of the Division Courts Act, R.S.O., c. 60 (O.), to dispense with the evidence being taken down in writing, in a case where the amount claimed exceeds $100, must be in writing and filed, a verbal consent therefor not being sufficient.

R. J. Maclennan, for the appeal. John Greer, contra.

Ferguson, J.]

CARROLL V. CARROLL.

[May 10.

Destroyed will-Parol evidence of contents by a witness of the will.

This was to establish the will of Eliza Carroll, deceased, dated in April, 1871. She became insane in 1872, and so continued until her death on December 11, 1897. The alleged will was made in favour of the plaintiffs, one of whom was named therein as an executrix, under a family arrangement

whereby the plaintiffs agreed to support deceased for her lifetime in consideration of a will being made in their favour of all her estate. The evidence showed that the will was deposited in a drawer by the testatrix, locked by her, and the key delivered to a brother, since deceased, who was named as an executor. About ten years after, the testatrix being insane, found the key and destroyed the will, some jewelry, valuable papers and coins by burning, and on the key being found in her possession by the plaintiffs, confessed what she had done. The plaintiffs supported the testatrix during her lifetime. On her death this action was brought by the surviving executrix, who is also one of the beneficiaries, and the other beneficiaries against the other heirs of the testatrix to establish the will or for specific performance of the agreement to make a will in their favour. The defendants did not appear, and the plaintiffs moved for judgment.

Held, following Brown v. Brown, 8 E. & B. 88, that the will could be established by evidence of parties from recollection of contents of the will, and that the will was fully established by the evidence submitted, and that probate should be granted by the proper court to the surviving executrix, according to the practice of the court.

Duncan (Woodstock), for plaintiffs.' No one appeared for the defendants.

Street, J.]

BAKER V. TRUSTS AND GUARANTEE Co.

[May 14. Bond-Condition-Maintenance and support-From time to time—Not restricted to penal sum—Registration-Lien on land.

Plaintiff sold her share in her father's real estate to her brother and accepted in payment a bond from him in a penal sum of $400, conditioned for her maintainance and support and giving her a lien on the land, which bond was registered. In an action for her maintenance after her brother's death against subsequent mortgagees of the land,

Held, that she was not limited to the amount of the penalty in the bond, but had the right to sue for her support as it accrued from time to time, and that the registration of the bond gave her a lien on the land in the hands of assignees from the brother.

R. Smith and Geo. H. Pettit, for the plaintiff. Jas. Leitch, Q.C., for the defendants.

Divisional Court.]

FRASER V. LONDON STREET RAILWAY COMPANY.

[May 18.

Street railways-Foot-board on side of car-Invitation to ride on—Improper construction of bridge-Negligence-Excessive damages-New trial.

On an electric car on defendants' railway, there was a step or foot-board running along the side of the car about a foot from the ground, leading to doors in the centre and rear parts of the car, with a brass rail or rod about chest high, for persons standing thereon to hold on by, and electric buttons to communicate with the conductor. The plaintiff seeing that the car was filling up rapidly, all the inside seats being occupied, and the rear platform crowded,