SLATER V. LABOREE.

Divisional Court.] [Nov. 13, 1905. Bills and notes-Endorsement by third party without endorsement by payee-Endorsement for valuable considerationLiability.

The defendant became the endorser of two promissory notes without the payee having endorsed same, being so endorsed by the defendant in pursuance of an agreement with the payees for valuable consideration that he should so endorse them and become liable thereon.

Held, that the defendant was so liable. Robinson v. Mann (1901) 31 S.C.R. 484 followed. Steele v. McKinley (1880) 8 App. Cas. 654, and Jenkins v. Coomber (1898) 2 Q.B. 168 not followed.

It is the duty of Courts to follow the decision of the highest Court in Canada, being the latest decision on the subject, without questioning whether or not it is in accordance with previous

cases.

Russell Snow, for appellant. Middleton, for respondent.

Divisional Court.]

RE HURST.

[Nov. 17, 1905. Will-Dower-Election-Specific devise of portion of lot-Use of driving house-Rooms in dwelling house.

A testator by his will devised to his widow for life 17 acres on the west side of a lot together with the use of a drive house on his lands for the storage of crops taken from the 17 acres, and of two rooms, certain furniture and bedding and all the fruit she wanted for her own use from that now grown thereon; and subject to such life estate and a payment of one hundred dollars to his daughter, he devised same to one of his sons. To another son he devised the remainder of the lot, containing thirty-three acres, together with all buildings and erections thereon, reserving. such privileges as were theretofore given to his widow during her life time and subject to a bequest of $150 to the said daughter, and the payments of the funeral and testamentary expenses.

Held, that the widow was not entitled to dower in the dwelling house and 17 acres, but she was so entitled as to the thirtythree acres not being put to her election thereto by reason of the disposition made in her favour.

Judgment of ANGLIN, J., affirmed.

Middleton, for appellants. J. H. Campbell (St. Catharines), for respondent.

Falconbridge, C.J.K.B., Street, J., Britton, J.]

LEVI v. EDWARD.

[Nov. 18, 1905.

Solicitor's lien-Set-off-Counterclaim-Con. Rules 1130, 1165. Appeal from judgment of ANGLIN, J.

The effect of Rule 1165, which provides that "a set-off of damages or costs between parties shall not be allowed to the prejudice of the solicitor's lien for costs in the particular action in which the set-off is sought," seems to be that if A. has judgment against B. for payment of a sum of money, and B. has judgment against A. for a sum of money which includes costs due B.'s solicitor, A. cannot insist upon having B.'s judgment set off against his own, if the effect of the set-off would be to prejudice a lien of B.'s solicitor for his costs of obtaining B.'s judgment.

But the case of a claim and counterclaim in the same action does not come within the purview of this rule. In such a case for the purpose of execution for the final balance between the amount recovered by the plaintiff for debt and costs, and that recovered by the defendant for his debt and costs, there is only one action.

This being so Rule 1164 is special authority for setting off costs taxable to the defendant against those taxable against him without any saving of solicitor's lien.

Per FALCONBRIDGE, C.J.-Rule 1165 does not fetter the discretion of the trial judge which by Rule 1130 (subject to saving clause as to trustees, etc., and subject to the Judicature Act, 1895, and the express provision of any other statute) is practically unlimited. Rule 1165, however, restricts the power of a taxing officer and probably of the judge in Chambers to allow a set-off to the prejudice of the solicitor's lien, but it does not limit the power of the trial judge to order such a set-off.

R. McKay, for defendant. G. M. Clark, for plaintiff.

Divisional Court.]

[Nov. 21, 1905.

GUMMERSON v. TORONTO POLICE BENEFIT FUND.

Benefit fund-Pension-Right to Proper forum-Injury in the execution of duty.

By Rule 32 of the Rules and Regulations of a Police Benefit Fund it was provided that where a member "in the execution of duty" received such injury as "in the opinion of the Police Commissioners" permanently incapacitated him from service in the police force, he should receive a pension as therein provided.

The plaintiff, a policeman, while vaulting over a wooden horse in the gymnasium, this being part of a manual exercise prescribed by a police inspector, received an injury whereby he claimed he was permanently incapacitated from further service in the force, and so entitled to such pension, and brought an action therefor.

Held, that the injury was one sustained by the policeman in the execution of duty, but that this matter was one for the consideration of the Police Commissioners, and that the action was not maintainable.

R. McKay, for plaintiff, appellant. Aylesworth, K.C., and D. T. Symons, for defendant.

Boyd, C., Meredith, J., Magee, J.]

[Nov. 28, 1905.

KASTOR & SONS ADVERTISING Co. v. COLEMAN. Principal and agent-Contract-Authority of agent, scope ofRatification- Conflicting evidence - Reversing finding of trial judge.

The defendant, the owner of a summer resort hotel, engaged a person to manage and conduct it for a season, agreeing that the latter should have the entire control and management of the hotel. Out of the gross receipts 15 per cent. was to be paid to the defendant for rent, and all profits were to be equally divided.

Held, 1. A contract for advertising the hotel was within the scope of the manager's authority as agent for the defendant, and that the defendant was bound by it.

2. Upon conflicting evidence, reversing the finding of the trial judge, that the contract was in fact authorized or ratified by the defendant.

Per BOYD, C.-Where two witnesses of apparently equal credibility contradict each other as to particular statements or conversations, acceptance should be given rather to one who remembers what happened than to one who denies, probably because he does not remember. Another rule for dealing with such conflicts of evidence is to consider what facts are beyond dispute and to examine which of the two accounts in conflict best accords with those facts according to the ordinary course of human affairs and the usual habits of life or bus ness.

Judgment of STREET, J., reversed.

H. Carscallen, K.C., for plaintiffs. S. F. Washington, K.C., for defendant.

Divisional Court.]

SHEA v. INGLIS.

[Dec. 12, 1905.

Master and Servant-Workmen's Compensation Act-Superin

tendence.

The plaintiff, who was a lad of eighteen, was engaged with two men in rivetting the plates of a boiler. It was the duty of one of the three to heat the rivets, of the second to place them in position, and of the third to fasten them by means of a hydraulic hammer which he put in operation by a lever. This man directed the plaintiff to go inside the boiler to hold back a loose stay which was coming in the way of the rivets, and the plaintiff while in the boiler was injured.

Held, that the man who was using the hammer was in effect necessarily entrusted with superintendence of the whole operation, that to his orders the plaintiff was bound to conform, and that the accident having happened, as was found, owing to this man's negligence, the plaintiff was entitled to damages.

Garland v. City of Toronto (1896) 23 A.R. 238 distinguished. DuVernet and R. H. Greer, for appellants. W. T. J. Lee, for respondents.

Anglin, J.]

[Dec. 15, 1905.

BARRIE v. TORONTO & NIAGARA POWER CO. Practice-Judgment on admissions-Payment into Court of part "in full satisfaction"—Payment out-Rules 419, 616. The plaintiffs appealed from an order of the Master in Chambers dismissing their application under Rule 616 for judgment upon alleged admissions in the pleadings with leave to proceed for the balance of their claim not admitted, and for payment out of Court of a certain sum paid in by the defendants with their statement of defence under Rule 419. The sum thus paid in by the defendants, they alleged in their pleading to be "balance due in respect of all the said matters," and they brought it into Court in full satisfaction of the plaintiff's claim therein."

Held, 1. The plaintiffs were not entitled to judgment with leave to proceed for the balance of their claim, and for payment out of the money paid in, for by moving as they did they accepted the statement of defence, and must take the negative as well as the affirmative allegations therein contained, and were not entitled to the benefit severed from the accompanying statement that the account admitted was the entire sum due.

2. The money should not be paid out to the plaintiffs under Rule 419 for whatever discretion the Court may have by virtue

of the words "subject to further order" under that rule, it should not be exercised to enable the plaintiffs to take as payment on account moneys which the defendants had offered only "in full satisfaction."

Middleton, for plaintiffs. J. H. Moss and H. H. Macrae, for defendants.

Meredith, C.J.C.P.]

DOON v. TORONTO FERRY CO.

[Dec. 22, 1905.

Practice-Third party notice-Directions for trial-Discretion. of the Court-Rules 209 and 213.

On a motion for directions for the trial of an action under Rule 213 it is in the discretion of the Court to determine whether having regard to the nature of the case it is a proper one for the application of the third party procedure notwithstanding that leave has been given to serve a third party notice under Rule 209. Miller v. Sarnia Gas Electric Co. (1900) 2 O.L.R. 546, and Holden v. Grand Trunk Ry. Co. (1901) 2 O.L.R. 421 referred to and considered.

Judgment of the Master in Chambers reversed.

D. C. Ross, for plaintiff. Greer, for defendants. Mackelcan, for third parties.

In an action on a policy on the life of the plaintiff's husband, the defendants filed an affidavit on production, but objected to produce certain letters between a local and the head offices on the ground: "that they are privileged, being of a confidential nature and disclosing certain legal points in connection with the defence of this action." On a motion to compel production the defendants manager swore that: "It is my custom in the course of business, frequently to write to the head office on matters involving points of law; the head office confer with their general solicitors, receive legal advice from them, and then communicate with me. The letters (in question) are of the same nature as those between solicitor and client, and are, as I am advised and believe, privileged for that reason.

Held, not sufficient; and that the affidavit should state that the letters "came into existence for the purpose of being com