MCDOUGALL, Co.J.: The only costs that can be given under the statute are witness fees on the Division Court scale, and the per diem allowance to the two judges from outside counties. The travelling expenses are expressly directed by the section of the statute to be paid by the clerk of the municipality out of the deposit made with him by the complaining ratepayer, the appellants, and the balance of such deposit ordered to be returned to them. The Court has no discretion to order these expenses to be paid otherwise. The order for costs will be made in that way.

DARTNELL, Co.J., and MCGIBBON, Co.J., concurred.

Graham, J.]

Province of Nova Scotia.

SUPREME COURT.

HART v. GIFFIN.

Statute of Limitations-Executor-Part payment.

[Nov. I.

This was an action brought on the 10th day of January, 1898, on a judg ment recovered on November 24, 1876. The defence was the Statute of Limitations. An execution was issued Dec. 17th, 1877, returnable within sixty days, and the sheriff sold the defendant's lands under the execution, and credited the proceeds on the execution. The plaintiff contended that this part payment under the statute.

was

Held, that there was part payment within the meaning of the statute, following the reasoning in the case of Chinnery v. Evans, 11 H.L. Cas. 115, where enforced payment was held to be equivalent to voluntary payment for the purposes of the Statute of Limitations.

J. A. Fulton, for plaintiff. Macgillivray, Q.C., for defendant.

Province of New Brunswick.

SUPREME COURT.

Full Bench.]

CUSLING V. Kelly.

[Nov. 4.

Woodmen's Lien Act—Logs detained in transit—Order for sale. Logs detained on a stream for want of sufficient water for driving are in transit within the meaning of s. 12 of the Woodmen's Lien Act, 1894, and an order of sale made by a County Court Judge under s. 18 of the Act, while the logs are so detained is invalid.

L. A. Currey, Q.C., for appellant. A. R. Slipp and C. E. Duffy, for respondent.

Full Bench.] WATEROUS ENGINE WORKS Co. v. POIRIER. [Nov. II. Trover-Plea of purchase under an equity decree to which plaintiff was not a party.

In an action of trover defendant pleaded that by a decree of the Supreme Court in Equity it was adjudged that he had a lien on the property involved,

and that the said property should be sold for the purpose of satisfying the said lien, and that the defendant, having been granted liberty by the said decree to bid at the said sale, purchased the property as the highest bidder, and thereby became the lawful owner thereof.

Held, on demurrer, that the plea was bad in that it did not allege that the plaintiff was a party to the suit wherein the decree was made.

M. G. Teed, for plaintiff. Geo. G. Gilbert, Q.C., for defendant.

Full Bench.]

EX PARTE SAGE.

[Nov. 11.

Assessment-Certiorari—Bond under Con. Stat., c. 100, s. 110.

The applicant was assessed on the property of a fishing club in Restigouche County, on which he had paid the assessments for several years previously. He was a non-resident and obtained a rule nisi for a certiorari to bring up the last year's assessment, but did not enter into a bond as required by above act. Held, on motion to make absolute the rule nisi, that a bond was not necessary where the assessment was absolutely void.

McLatchey and Stockton, Q.C., in support of rule.

W. A. Mott, contra.

[Nov. II.

Absent debtor-Sufficiency of affidavits as to absence-Meaning of "indebted" in Con. Stat., c. 44, s. 3.

A County Judge issued a warrant against the property of S. as an absent debtor under Con. Stat., c. 44, s. 3, on the application of C., who produced his own affidavit, in which the absence of S. from the province was clearly deposed to, and the affidavit of his attorney, in which the latter set forth that he had been informed by S.'s wife that S. had left home, and that she had been communicating with him in the United States by letter. An application was made for a supersedeas under sec. 10, which the judge after hearing refused. The debt, on which the proceedings were founded, although contracted before the debtor left the province, and more than six months before the application for the warrant, had not been due six months prior to the application.

Held, on motion to make absolute an order nisi for certiorari to bring up the warrant, MCLEOD and LANDRY, JJ., dissenting, that the Court, although not deeming the affidavit verifying the debtor's absence satisfactory, would not treat it as insufficient, the County Judge having accepted and acted upon it. Held also, that it was sufficient that the debt was contracted more than six months prior to the application, though not due for that period.

Order nisi discharged.

W. B. Chandler, in support of order nisi. A. R. Slipp, contra.

Barker, J.]

KING 7. KEITH.
Mortgage-Interest-Rate.

[Nov. 15.

The proviso for the defeasance of a mortgage was as follows: "The full sum of $225 in four years from the day of the date hereof with lawful interest on the same, at the rate of nine per centum per annum, payable annually on

the 18th day of June in each year, the first payment of interest to be made on the 18th day of June, A.D., 1886 ; the same rate of interest to be paid and chargeable from and after the expiration of the said four years, and until the whole sum is well and truly paid; overdue interest to bear interest at the said rate of nine per centum per annum."

Held, that the principal money bore nine per cent. interest after as well as before maturity, and that overdue interest bore the same rate whether accruing due before or after the maturity of the principal.

Stockton, Q.C., for plaintiff. W. B. Chandler, for defendant.

Province of Manitoba.

QUEEN'S BENCH.

Killam, J.]

FOULDS v. FOULDS.

[Nov. 10.

Practice-Queen's Bench Act, 1895, s. 31—Registering certificate of decree for alimony-Retrospective legislation.

This was an appeal from the referee dismissing a motion to set aside the registration, since the coming into force of the Queen's Bench Act, 1895, of a decree for alimony obtained in 1889.

Held, that section 31 of the Act authorizes the registration of such a certificate, and applies to decree, orders, or judgments previously obtained. Such cases as Wright v. Hale, 6 H. & N. 227; Boodle v. Davis, 8 Ex. 351; and Weldon v. Winslow, 13 Q.B.D. 784, show that legislation relating to procedure only, or improving the remedy, is prima facie applicable to prior existing proceedings or rights.

Pratt v. Bull, 32 L.J. Ch. 144; Queen v. Taylor, 1. S.C.R. 65; and Hughes v. Lundy, 24 L.J. Q.B. 29, distinguished. Appeal dismissed with

costs.

Mathers, for plaintiff. Mulock, Q.C., for defendant.

Province of British Columbia.

SUPREME COURT.

Full Court.]

MCNERHANIE v. ARCHIBALD.

[Nov. 10.

Mineral claim-Right of partner who has allowed his license to expire, to share in proceeds of sale of-Mineral Act of 1896, ss. 9, 34, 50, 80-92.

Action for a declaration of partnership in a mineral claim and for an order that plaintiff was entitled to share in the proceeds of the sale thereof by his

co-owners.

In 1895, the plaintiff and defendant and one Murchie, went out prospecting together and it was agreed that the three should stake out some mineral claims for themselves, and the plaintiff proposed that they should be interested in

everything that they staked to which the defendant and Murchie agreed. The three then staked a number of claims, some for themselves in their several names. These they sold, and no dispute arose concerning those so staked; but in addition to those claims they located a number of claims for other persons-outsiders-in particular the defendant Archibald (June 21st, 1896), staked a claim known as the Dorothy Morton. He said it was staked on the understanding that he was to have one-half non-assessable interest for staking it, and that the other half was to belong to Chick and Moody, by whom the fees were to be paid. On the other hand, the plaintiff, McNerhanie, claimed that he, under the original agreement, was entitled to a one-third in the half coming to Archibald, and it was in consequence of this dispute that this action was commenced on October 8th, 1897.

The action was tried at Vancouver before IRVING, J. and a common jury, who found that the conversation relied upon by plaintiff as establishing a partnership actually took place, and that the partnership agreement then arrived at applied to the Dorothy Morton. On April 10, 1897, Chick, in whose name the Dorothy Morton was recorded, conveyed to Archibald a one-half interest in the claim, and by a document dated July 19. 1897, Chick, Moody and Archibald entered into an agreement with Messrs. Lang & Ryan for the sale to them of the Dorothy Morton for the sum of $20,000, payable as follows: $1,000 on the deposit in escrow of the crown grant, and a conveyance of the mineral claim; this was paid on January 7, 1898; $8,000 on January 19, 1898; $8,000 on April 19, and the balance on June 19, 1898. This agreement was recorded on July 25, 1897. McNerhanie, who was a free miner at the time the original agreement was formed, and at the time the Dorothy Morton was staked, permitted a certificate to expire in July, 1897, and did not take out a free miner's license until about August 7, 1898.

The defendant in his defence denied any partnership agreement, and set up as a defence that the plaintiff had on July 25, 1897, permitted his certificate to expire, and that under s. 9 of the Mineral Act he forfeited any right which he might have had to claim. The trial judge dismissed the action, holding that by s. 9, on the expiration of the plaintiff's certificate, his interest in the mineral claim vested in the co-owners, and with it his share of the purchase money. On appeal to the full court,

Held, that if a partner in a mineral claim makes an agreement for sale thereof with a third party, another partner does not forfeit his share in the proceeds of such sale, merely because his free miner's certificate was allowed lapse after the making of the agreement.

Martin, Attorney-General for appellant. Davis, Q.C., for respondent.

Martin, J.].

[Nov. 17.

DROSDOWITZ v. MANCHESTER FIRE ASSURANCE COMPANY. Practice-Judgment debtor-Examination of, where judgment for costs only— R.S.B.C. c. 10, s. 19 and Rule 486.

This was a summons by defendants for an order for the examination of the plaintiff as a judgment debtor for costs only under the above Act or alternatively under Rule 485.

Held, that though the examination could not be held under said sec. 19, as decided in Griffiths v. Canonica, 5 B.C. 49, yet that under the rule a person against whom a judgment has been recovered for costs only can be examined as a judgment debtor.

Morphy, for application. Anderson (McPhillips, Wootton & Barnard),

contra.

McColl, C.J.]

MCLELLAN v. HARRIS.

[Nov. 18.

Practice-Affidavit-Sworn before solicitor's agent resident outside Province— Rule 417.

Summons by defendants to set aside an order for service of a writ out of the jurisdiction. It appeared that several affidavits sought to be used in support of the summons were sworn before a notary public of Manitoba, who was the agent or correspondent of the solicitor for the defendants, but was not a solicitor of this Court.

Held, that an affidavit sworn before a notary public in Manitoba who had been acting as agent for the defendant's solicitor, is insufficient under Rule 417, which applies to agents or correspondents without as well as within the Province.

Gilmour, for summons. Hagel, Q.C, contra.

Book Reviews.

The Hudson's Bay Company's Land Tenures, by ARCHER MARTIN, barristerat-law, 1898 London, William Clowes & Sons, limited.

Mr. Martin, now one of the judges of the Supreme Court of British Columbia, has produced a work which will be of lasting historic as well as legal interest as regards the Province of Manitoba and the district of Assiniboia. Its first chapter is upon the subject matter of a paper read by the author before the Historical and Scientific Society of Manitoba in 1892, and which was reprinted in the Western Law Times. The remaining five chapters and the appendices are the result of investigations pursued by the author in regard to the foundations of titles derived from Lord Selkirk and the Hudson's Bay Company in the "Red River Settlement," which has since developed into the important Province and district before mentioned. The company's grant to Lord Selkirk in 1811 comprised 116,000 square miles of territory, and in 1836 the district was repurchased from him by the company, and grants and leases were thereafter made by it until the acquisition of same by the Canadian Government in 1869, which, however, was expressly subject to the confirmation of all titles theretofore granted by the company, thus indicating the importance, in some instances, of investigating titles prior to the crown grant. The work gives evidence of the most careful research, and the subject is handled by the learned author in a way both erudite and entertaining. Lists of grantees under the Earl of Selkirk and the Hudson's Bay Company appear in the appendices as well as a complete copy of the latter company's charter.