Dubuc, C.J.]

Province of Manitoba.

KING'S BENCH.

MEIGHEN V. ARMSTRONG.

[Jan. 12.

Chattel mortgage-Seed grain-Affidavit of bonâ fides-Landlord and tenant-Distress.

The plaintiff had taken a chattel mortgage from defendant Todd covering the crops to be grown on certain land by Todd as tenant to the defendant Armstrong under a lease for a year dated 1st April, 1904, reserving as rent one-third of the crops, and providing that the lessee should thresh the grain and draw it to the elevator or cars to be stored and shipped as might be agreed between the parties in the name of the lessor, but no time was fixed when that was to be done.

The landlord in the following November distrained for rent, and the plaintiff was thereby prevented from realizing more than a small portion of the amount secured by his mortgage.

The plaintiff had purchased the seed grain from a dealer who delivered it to Todd. The price of it was $300.75, but the chattel mortgage was taken for $360 to cover the solicitor's costs in addition.

Held, 1. The distress was illegal, as there was no rent due at the time, Todd having until 31st March, 1905, to pay it, and also because there was no one in possession of the land at the time. Bell on Landlord and Tenant, p. 271.

2. The chattel mortgage was not void because the affidavit of bonâ fides stated that the agent had "a knowledge of all the facts connected with the said mortgage," instead of saying that he was "aware of all the circumstances' as required by Bills of Sale and Chattel Mortgages Act," R.S.M. 1902, c. 11, s. 12. Emerson v. Bannerman, 19 S.C.R. 1, and Rogers v. Carroll, 30 O.R. 328, followed.

3. It was no objection that the seed grain had not been sold to Todd by the plaintiff himself, but purchased for him from a third party. Kirchhoffer v. Clement, 11 M.R. 460.

4. Under s. 39 of the Act the objection that the mortgage had been taken for a greater amount than the price of the seed grain and interest was fatal to it, as that section provides that every mortgage, bill of sale, etc.," shall, so far as it assumes to bind, comprise, apply to or affect any growing crop, or crop to be grown in the future, in whole or in part, be absolutely void

except the same be made as a security for the purchase price, and interest thereon, of seed grain. Maxwell on Statutes, p. 661; Ex parte Charing Cross, etc., Bank, 16 Ch. D. 35; In re Rolfe, 19 Ch. D. 98; and Hamilton v. Chaiur, 7 Q.B.D. 319, followed.

Judgment for plaintiff against Todd on the covenant in the mortgage for payment of the money, with costs, and dismissing the action as against Armstrong, but without costs.

Daly, K:C., and Meighen, for plaintiff. Aikins, K.C., and Taylor, for defendant Armstrong.

Dubuc, J.]

MCARTHUR v. MARTINSON.

[Feb. 2.

Mechanic's lien-Reserve of percentage of contract price-Payments to material men and wage earners out of the reserveLiability of owner for full amount of reserve.

The defendant Martinson entered into a contract with the owners to erect for them a building for the sum of $17,164. Before the building was quite completed Martinson abandoned the contract, but the owners had kept back fifteen per cent. of the amounts called for by the progress estimates made from time to time. They, however, made payments, both before and after Martinson abandoned the contract, to wage earners and other parties entitled to file liens, and they claimed in this suit, which was brought to enforce the plaintiff's lien for lumber supplied to Martinson for use in the building, that they were entitled to deduct such payments from the fifteen per cent. required by s. 9 of the Mechanics' and Wage Earners' Liens Act, R.S.M. 1902, c. 110, to be held back and were only liable to account to the plaintiff and other lien holders for the balance, relying on s. 10 of the Act.

Sec. 10 in effect provides that if an owner chooses to make any such payments he may do so on giving three days' notice of such payments to the contractor, and that such payments shall be deemed to be payments to the contractor on his contract generally, "but not so as to affect the percentage to be retained by the owner, as provided for in s. 9.”

Held, that this clearly means that no such payments can be made out of the percentage required to be resumed under s. 9, and that the defendants, the owners, were liable in this action for the full fifteen per cent. of the value of the work done up to the time Martinson abandoned the work.

C. P. Wilson and Frank Fisher, for plaintiff. Daly, K.C., and Crichton, for defendants.

Full Court.]

Province of British Columbia.

SUPREME COURT.

[Nov. 8, 1905.

GINACA v. MCKEE CONSOLIDATED HYDRAULIC.

Lease holders and placer miners-Respective rights of, to water -Lease and placer claim-Difference between.

It was the intention of the Legislature by s. 29 of the Water Clauses Consolidation Act, as enacted by s. 2 of c. 56, 1903-4, to secure to free miners, occupants of placer ground, whether they hold as original locators or as lease holders, that continuous flow of water which the section specifies.

A free miner having obtained certain rights on one creek under s. 29, does not forfeit them because he obtained additional rights on another creek under another section.

The enactment contained in c. 56 of 1903-4, shews a clear intention to cut down the rights of holders of water records, and to increase the benefits accruing to the individual free minor under the Placer Mining Act.

Per IRVING, J. (dissentiente) :-A leasehold, being held under a lease granted pursuant to the recommendation of the Gold Commissioner, on the representation by the applicant that the ground is abandoned as placer ground, the term "location" would not be properly applied to it.

Decision of HENDERSON Co. J. (Mining Jurisdiction), affirmed.

A. D. Taylor, for appellants. Kappele, for respondents.

Full Court.]

MCADAM V. KICKBUSH.

[Nov. 22, 1905.

Nonsuit-Evidence in rebuttal, rejection of-Burden of proof -Damages.

In an action of replevin, plaintiff proved ownership and rested his case. Defendant then moved for a nonsuit, the decision on which was reserved until he had presented his case. Plaintiff offered evidence in rebuttal to meet the case made by defendant, which was rejected on the ground that evidence to prove the non-existence of the tenancy alleged would be merely

confirmatory of the plaintiff's case, and the action was disposed of by allowing defendant's application for a nonsuit.

Held, that the rejection of the evidence tendered by the plaintiff in rebuttal could be sustained only on the ground that the onus of proof on the issues to which it related was at the outset of the case on the plaintiff; and that the course adopted by the learned trial judge admitted the evidence for the defendant to and excluded the evidence for the plaintiff from review by the Court of Appeal.

Decision of BOLE, Co. J., reversed.

Macdonell, for plaintiff. Bowes, for defendant.

Hunter, C.J.]

MORTON V. NICHOLS.

[Feb. 26.

Contract-Specific performance-Option to purchase mineral claim-Time of the essence-Tender of instalment of purchase money.

Where the contract is for the sale of property of a fluctuating value, such as mineral claims, although there is no stipulation that time shall be of the essence of the contract, yet by the very nature of the property dealt with, it is clear that time shall be of the essence.

Where the transaction is an option, or unilateral contract, for that reason time is to be taken as intended to be of the es

sence.

Where there is a stipulation to pay money on a particular day, and no place is agreed upon, it is the duty of the payor to seek out and find the payee if he is within the jurisdiction.

R. T. Elliott, for plaintiffs. W. J. Taylor, K.C., and Twigg, for defendant.

Full Court.]

HOPPER v. DUNSMUIR.

Costs "Event," what constitutes.

[Jan. 25.

By s. 100 of the Supreme Court Act, 1904, the Legislature expressly intended to provide an automatic code for the disposition of the costs of all trials, hearings and appeals in the Supreme Court, and to sweep away all discretion save in relation to the specific exceptions set out in the said s. 100.

Bodwell, K.C., for plaintiff. E. P. Davis, K.C., and Luxton, K.C., for defendants. Sir C. H. Tupper, K.C., for intervenant.

Full Court.]

[March 6.

WEST KOOTENAY POWER AND LIGHT Co. v. CITY OF NELSON. Water Clauses Con. Act-Grant to municipality for power purposes.

Appeal from judgment of IRVING J. See 41 C.L.J. p. 726.

Held, having regard to Lord Blackburn's examination of Rickett v. Morris, L.R. 1 H.L. (Sc.) 47, in Orr-Ewing v. Colquhoun (1877) 2 App. Cas. at p. 852 et seq., and the remarks of Fitzgibbon and Barry, L.JJ., in The Belfast Ropeworks Co. v. Boyd, 21 L.R. Ir. 560, the law is not that any sensible interference is per se actionable, but that there must be either actual damage or a reasonable possibility of damages to give a good cause of action, and that in determining whether the defendant has discharged the onus regard must be had to the circumstances of the

case.

Held, further, that in this particular case the defendants had discharged the onus, having regard to the evidence taken since. the trial by leave of the Full Court.

MacNeill, K.C., and Lennie, for plaintiffs, respondents. Bodwell, K.C., and W. A. Macdonald K.C., for defendants, appellants.

Bench and Bar.

At a recent meeting of the County of Hastings Law Association a resolution was passed expressing a deep sense of the loss sustained by the members of the Bar of the above County through the death of His Honour Judge Lazier, who had held office for over thirty years. The resolution spoke of the courtesy, integrity, impartiality and devotion to duty which characterized him in his judicial career; and expressed the assurance that his example would be deemed the standard for, and his life's work and memory held dear by the members of the legal profession in the County in which he had lived for nearly four score years.

The appointment of Mr. Hugh McMillan, of Guelph, as junior judge of the County of Victoria has been well received in the County that knows him best. It is refreshing to record that the organ of the political party to which he does not belong applauds the appointment, saying: "His long experience in and knowledge of the law, his mature judgment, his fairness and his practical common sense, well fit him for the discharge of the duties which he has been called upon to perform." We concur.