therefore, the terms of the charter, the House of Lords (Lords Halsbury, Robertson and Lindley) held that the rights of the parties inter se as opposite riparian proprietors were governed by the general law applicable to running streams, whereby every riparian proprietor has a prima facie right to the ordinary use of the water flowing past his land; and, apart from rights acquired by prescription, one owner cannot interfere with the rights of another riparian proprietor; and that any prescriptive rights must be measured by the extent of their actual enjoyment, and that to the extent only to which those prescriptive rights had been actually enjoyed by the plaintiffs were they entitled to any preferential user of the waters of the stream. The decision of the Court below was therefore reversed.

CONTRACT-CONSTRUCTION-"WHOLE OPERATION OF ITS RAILWAY"-PERCENTAGE OF EARNINGS.

Montreal Street Railway Co. v. Montreal (1906) A.C. 100 was an action brought by the City of Montreal to recover a percentage of earnings of the defendants' railway under a contract which provided for the payment of a percentage on their earnings from the whole operation of their railway, and the question at issue was whether or not the contract extended to earnings of the railway beyond the city limits. The case occasioned great diversity of opinion in the Courts below, five judges, including a majority of the Supreme Court of Canada being of opinion that it extended to earnings beyond the city limits, and six being of the contrary opinion. The Judicial Committee of the Privy Council (Lords Davey, James and Robertson and Sir Andrew Scoble) adopted the view of the majority and reversed the judgment of the Supreme Court. Their Lordships, looking at the contract as a whole, being of opinion that it was intended to be confined to "lines of railway for conveyance of passengers in the city."

MUNICIPALITY-DRAIN BECOMING

INSUFFICIENT-NEGLIGENCE

EXERCISE OF STATUTORY POWERS.

Hawthorn v. Kannuluik (1906) A.C. 105 demands a brief notice. It was an appeal from the Supreme Court of Victoria. The action was brought against a municipality for damages caused by the flooding of the plaintiff's land, owing to the insufficiency of a sewer provided by the defendants. The defendants, in pursuance of statutory powers, had taken over the care

of a watercourse and converted it into a public drain, which, though sufficient at first, proved in course of time to be increasingly insufficient to carry off the mixture of slime and sewage poured into it, whereby the plaintiff's property was flooded. The Judicial Committee of the Privy Council (Lords Macnaghten, Davey and James, and Sir A. Wilson) affirmed the judgment of the Court below in favour of the plaintiff.

TRESPASS INJUNCTION EXPROPRIATION ACT ARBITRATION CLAUSE NEGLECT TO PURSUE STATUTORY PROCEDURE FOR EXPROPRIATION—ACTION-36 VICT. c. 102, s. 5, ONT.

Saunby v. Water Commissioners of London (1906) A.C. 110 is an appeal from the Supreme Court of Canada. The action was brought against the defendants for trespass on the plaintiff's land and interference with his rights of water. The defendants set up as a defence that they were authorized to do the acts complained of by Statute 36 Vict. c. 102, Ont., and that the plaintiff's remedy, if any, was by arbitration as provided by section 5 of that Act. It appeared that the defendants had not adopted the procedure prescribed by the Act for expropriating the plaintiff's property in question, but the Supreme Court of Canada nevertheless held, overruling the Ontario Court of Appeal, that the action would not lie, and the plaintiff's only remedy was by arbitration. The Judicial Committee of the Privy Council (Lords Macnaghten, Davey and James, and Sir A. Wilson) held that the Court of Appeal was right, and reversed the decision of the Supreme Court, and held that an injunction was rightly granted, but that it should be limited in duration until the defendants should have expropriated the property in the manner directed in the Act.

ONT. JUD. ACT, s. 113-INTEREST ON PAYMENTS IN ARREAR.

Toronto Railway Co. v. Toronto (1906) A.C. 117. This case is reported at length ante p. 205.

MASTER AND SERVANT-WRONGFUL DISMISSAL- JUSTIFICATIONDUTY OF JUDGE AT TRIAL-NEW TRIAL.

Clouston v. Corry (1906) A.C. 122 was an action for wrongful dismissal in which the defendants justified on the ground that the plaintiff had been guilty of drunken and disorderly conduct. The evidence of the plaintiff's drunken and disorderly

conduct shewed it to have been of a gross character, and was uncontradicted; the jury nevertheless found that it did not justify the defendants in dismissing the plaintiff, and gave a verdict in his favour for £875. This verdict was affirmed on appeal by the Court of Appeal for New Zealand. The Judicial Committee of the Privy Council (Lords Macnaghten, Davey, James and Robertson, and Sir A. Wilson) thought that the verdict was so unsatisfactory that it could not be allowed to stand and a new trial was ordered. The costs of all the proceedings below were ordered to abide the event of the new trial, but the plaintiff was ordered to pay the costs of the appeal to His Majesty in Council.

PRACTICE-APPEAL ADMITTED BY COURT BELOW DISMISSED AS INCOMPETENT-SPECIAL LEAVE TO APPEAL REFUSED.

In Grieve v. Tasker (1906) A.C. 132, an appeal to His Majesty in Council had been allowed by the Supreme Court of Newfoundland, but on motion of the respondent it was dismissed as incompetent and a special application for leave to appeal was also dismissed by the Judicial Committee. The action had been commenced in or prior to 1897 to recover a sum of money, and on October 13, 1897, judgment was awarded in favour of the plaintiff, declaring defendant's liability. On September 27, 1897, a letter was sent to the defendant from Scotland informing him that a discharge had been granted to him in bankruptcy. The defendant made no application to set up this defence, and on April 6, 1898, the Court pronounced a final decree for payment of $22,295 by the defendant. He then applied for leave to appeal to the Queen in Council, and afterwards abandoned the appeal. In June, 1899, he moved to set aside the judgment, or to limit its effect to its being made the subject of proof in the bankruptcy proceedings, which motion was dismissed June 7, 1899. He made another application of the same kind, which was also refused August 29, 1904. On December 1, 1904, the plaintiff obtained leave to issue execution, and on March 20, 1905, the defendant made a similar application to that of August, 1904, to restrain execution, which was refused, and from that order he now appealed to the King in Council. But inasmuch as it was clear that no substantial relief could be given to the defendant without his getting rid of the judgment of 1897 and 1898, the Judicial Committee regarded the appeal as altogether futile and dismissed it as incompetent.

Trust-Co-trustee-Joint action-Delegation of trust.

A trustee in Toronto wrote to a co-trustee in St. Mary's stating that an offer had been made to purchase a portion of the trust estate for $12,000, and giving reasons why it should be accepted. The co-trustee replied concurring in said reasons and consenting to the proposed sale. The Toronto trustee afterwards had negotiations with the solicitors of G. and at their suggestion offered to sell the same property to G. for $13,000, but without further notice to his co-trustee. The offer was accepted by the solicitors, whereupon the party who had offered $12,000 raised his offer to $14,000, and the trustee notified the solicitors of G. that the sale to him was cancelled. In a suit by G. for specific performance,

Held, affirming the judgment of the Court of Appeal ((1904) L.R. 522) that the letter written by the co-trustee in St. Mary's contained a consent to the particular sale mentioned therein only and could not be construed as a general consent to a sale to any person even for a higher price. Even if it could there were circumstances which occurred between the time it was written and the signing of the contract with G. which should have been communicated to the co-trustee before he could be bound by said contract. Appeal dismissed with costs.

Ritchie, K.C., for appellant. mere, K.C., for respondents.

Aylesworth, K.C., and Dela

Bd. Ry. Comm.]

[April 6.

JAMES BAY RY. Co. v. GRAND TRUNK RY. CO.

Board of Railway Commissioners JurisdictionJurisdiction- Appeal to Supreme Court.

The Board of Railway Commissioners granted an application of the James Bay Ry. Co. for leave to carry their line under

the track of the Grand Trunk Ry. Co. but, at the request of the latter, imposed the condition that the masonry work of such under crossing should be sufficient to allow of the construction of an additional track on the line of the Grand Trunk Ry. Co. No evidence was given that the latter company intended to lay an additional track in the near future, or at any time. The James Bay Ry. Co., by leave of a judge, appealed to the Supreme Court of Canada from the part of the order imposing such terms, contending that the same was beyond the jurisdiction of the Board.

Held, 1. The Board had jurisdiction to impose said terms. 2. Per SEDGEWICK, DAVIES and MACLENNAN, JJ. that the question before the Court was rather one of law than of jurisdiction, and should have come up on appeal by leave of the Board or carried before the Governor-General in Council.

Appeal dismissed with costs.

Barwick, K.C., and G. F. Macdonnell, for appellants. Chrysler, K.C., for respondents. A. G. Blair, for the Board.

Ont.]

CONNELL V. CONNELL.

[April 14.

Will-Promoter-Evidence-Subsequent conduct of testatorResiduary devise-Trust.

In proceedings for probate by the executors of a will which was opposed on the ground that it was prepared by one of the executors who was also a beneficiary there was evidence, though contradicted, that before the will was executed it was read over to the testator who seemed to understand its provisions.

Held, IDINGTON, J., dissenting, that such evidence and the fact that the testator lived for several years after it was executed and on several occasions during that time spoke of having made his will, and never revoked nor altered it, satisfied the onus, if it existed, on the executor to satisfy the Court that the testator knew and approved of its provisions.

Held, also, that where the testator's estate was worth some $50,000, and he had no children, it was doubtful if a bequest to the propounder, his brother, of $1,000 was such a substantial benefit that it would give rise to the onus contended for by those opposing the will.

Appeal dismissed with costs. Watson, K.C., for appellants. and Middleton, for respondents.

Whitney, K.C., French, K.C.. Fisher, for widow.