Province of Manitoba.

KING'S BENCH.

Dubuc, C.J.]

ROBINSON V. GRAHAM.

[Feb. 10. Attachment of goods-County Courts Act, R.S.M. 1902, c. 38, ss. 200-206, 252, 253-Rateable distribution amongst execution creditors-Meaning of word "trader" Is a baker a manufacturer?

This was a contest between the plaintiff who had judgment against the defendant in two suits commenced by writs of attachment issued out of a County Court, and one Sheave who had judgment against the same defendant in a suit commenced by a special writ of summons in the same Court, as to whether Sheave was entitled to his pro rata share of the proceeds of certain goods that had been seized and sold under said writs of attachment. The defendant was a baker and, incidental to his business as such bought and sold candies, cakes and confectionery, and the County Court judge held that he was a trader within the meaning of ss. 200-206 of "The County Courts Act," R.S.M., 1902, c. 38, and decided in favour of Sheave.

Held, on appeal, 1. Whether the defendant was a trader or not, ss. 200-206 of the Act do not apply when goods are sold under a writ of attachment, in which case ss. 252 and 253 govern, and Sheave could not share as he had not sued out any writ of attachment. Secs. 200-206 of the Act, although enacted subsequently to ss. 252 and 253, do not repeal or do away with the effect of the latter sections. A general later statute does not abrogate a special statute by mere implicaion and will not be interpreted as revoking or altering the special enactment when the terms of the latter may have their special application without being so interpreted: Bailey v. Vancouver, 24 S.C.R. 62.

2. The defendant was not necessarily a trader because of his dealing in candies, cakes and confectionery, if that was merely incidential to his business as a baker: Thomas v. Hull, 6 P.R. 172, followed.

Quare, whether a baker is a manufacturer and so comes within the definition of a trader given in s. 200.

Appeal allowed with costs.

Heap, for plaintiff. O'Reilly, for Sheave.

[Feb. 10.

Dubuc, C.J.]

IN RE ANDERSON.

Life insurance-Benevolent Society-Appropriation by will of benefit to persons other than beneficiary named in policy.

This was a case stated for the opinion of the Court as to whether a provision in the will of the deceased, whereby he revoked the benefit of a certain life insurance policy held by him in "The Ancient Order of United Workmen," in which his wife was named as the beneficiary, and directed that the money should fall into and form part of his general estate, was effective to that end or whether the widow was not entitled to the money on his death notwithstanding such revocation in his will, also as to whether the widow, if found so entitled, was bound to elect as between such benefit and other provisions of the will in her favour. The order had been incorporated in 1877 under the provisions of The Charitable Associations Act, now c. 18 of the R.S.M. 1902, and, according to its constitution and rules by which all its members were bound, no member had any right' in or control over the money for which he was insured, except to name the beneficiary to whom it should be paid on his death which right was limited to certain relatives, and a member had not the right to name a creditor as a beneficiary or to appropriate the money so that it could be applied in payment of his debts.

Held, 1. There had been a contract entered into between the deceased and the Order by which it was agreed that the money should be paid to his wife, and that he could not afterwards abrogate or alter such contract or change the destination of the money except in accordance with the constitution and general laws of the Order, and so the widow was entitled to the money. Leadley v. McGregor, 11 M.R. 9; Johnston v. C.M.B.A., 24 A.R. 88, and Babe v. The Board of Trade of Toronto, 30 O.R. 69, followed.

National Trust Co. v. Hughes, 14 M.R. 41, distinguished on the ground that the insurance in that case was governed by The Life Insurance Act, R.S.M. 1902, c. 83, which applies only to insurance in ordinary life insurance companies.

2. The widow was not put to her election, but should have the insurance money as well as the benefits given her by the will of the deceased. Griffith v. Howes, 5 O.L.R. 439, and In re Warren's Trust, 20 Cr. D. 208, followed.

Minty, for widow. Hull, for executors. Wilson, for legatees.

JOHANNISON v. GALBRAITH.

[Feb. 10.

Full Court.] Arbitration and award-Setting aside award-Pleading-Allegation that award relied on invalid-General relief.

Judgment of PERDUE, J., noted vol. 41, p. 621, allowing defendant's demurrer to the statement of claim, reversed on appeal on the ground that the prayer in the original statement of claim. for general relief was sufficient to cover the setting aside of the award as the facts added by the amendment set up such a case as, if true, would entitle the plaintiff to ask specifically for that relief. Dictum of KILLAM, J., in Rogers v. Commercial Union Ass. Co., 10 M.R., at pp. 675 and 676, and notes at page 625 of Bullen v. Leake, 5th ed., followed. Gaughan v. Sharpe, 6 A.R. 417, distinguished.

Held, also, that this Court has jurisdiction to set aside an award whether or not it is one to which the provisions of 9 & 10 Wm. III. c. 15, apply. That statute provides for summary proceedings to set aside awards of a certain kind, and limits the time within which such proceedings may be taken, but the Court of Chancery formerly could, and this Court can now, exercise jurisdiction over award independently of that statute. Smith v. Whitmore, 2 De G. J. & S. 297, followed.

Per MATHERS, J., Rule 773 of the King's Bench Act provides a code of procedure only for the enforcement of award, and Rule 774, which reads, "The former practice with respect to awards shall not be abolished, but the same shall only be followed by special leave of the Court or judge" should be interpreted as if it read, "The former practice relating to the enforcement of awards, etc."

Wilson, for plaintiff. Potts, for defendant.

Province of British Columbia.

SUPREME COURT.

Duff, J.]

[Dec. 23, 1905.

CARROLL v. CITY OF VANCOUVER.

Land-Compulsory appropriation by waterworks companyCrown-Pre-emption record.

Held, that before the lands of any person can be compulsorily appropriated under the provisions of any statute giving a com

pany or corporation such powers, the area sought to be appropriated must be set out and ascertained in accordance with the terms of the statute.

Macdonell, for plaintiff. Hamersley, K.C., for defendant.

Taxes, distress for-Notice of sale-"At least ten days"—" Ten clear days"-Time, computation of-Damages-New trial.

The plaintiff company was organized in 1899. The defendants were tax-collecting officials of the Provincial Government. Of three canneries purchased by the company two of them were from the liquidators of defunct companies. One of these, the Star cannery, was in arrears for personal property tax for 1894, 1895, 1896, 1899, 1900 and 1901. Claim was made by defendant Fagan for these arrears together with arrears in respect of the other properties from 1899. The company contended that they were liable only for taxes on their property acquired since their incorporation, and tendered the sum of $890 in satisfaction of all claims to the end of 1902, which was refused; distress was made on the goods and chattels. of the company and in pursuance of a notice dated 5th August, 1902, a sale was had on the 15th of certain goods of the company for $825 and costs. This notice was given under s. 88 of the Assessment Act, which requires that the collector shall give "at least ten days' public notice of the time and place of such sale." At the trial, DUFF, J., held that the notice was one day short.

Held, on appeal, 1. The provision in s. 88 of the Assessment Act directing that the collector of taxes shall give at least ten days' public notice of the time and place of sale of goods for delinquent taxes, means "ten clear days," and the party making a distress on less notice becomes a trespasser ab initio.

2. Sec. 87 does not create the relationship of landlord and tenant between the parties; nor does it give a lien upon goods such as the preferential charge upon lands under s. 80.

Martin, K.C., for plaintiffs (respondents). Maclean, K.C., D.A.-G., for defendants (appellants).

Book Reviews.

Conveyancing and Other Forms. A collection of precedents adapted to the law in every Province, etc., with clauses applicable to special cases. Third edition, revised and enlarged, with notes on cases and references to statutes. By A. H. O'BRIEN, M.A., Assistant Law Clerk of the House of Commons; author of "Chattel Mortages and Bills of Sale," "Digests of the Fish and Game Laws of Ontario and Que bec," etc. Toronto: Canada Law Book Company, 1906.

That a new edition of this work should be required within three years of the previous edition would indicate both the necessity for a good work upon conveyancing and continued confidence in Mr. O'Brien's book. This new edition contains all the important forms in the previous edition, and has been largely increased both in size and matter. The two hundred and fifty pages now added comprise many subjects not in the previous edition, viz., forms relating to Acknowledgements, Railways, etc., and forms for use in Alberta, Saskatchewan, New Brunswick, Prince Edward Island and the Yukon. The forms for Manitoba and Nova Scotia have been largely added to. A number of new special forms and clauses appear under the headings, Company, Chattel Mortgages, Conveyances, Landlord and Tenant, Mining, and Mortgages. The law of dower in every Province is given, also an Index of Law, and many useful notes, while the very complete Index of Forms is not the least valuable part of the book. The type is clear and the publishers' part well done. The author's reputation is a sufficient guarantee that the matter within the covers is what might be expected.

Flotsam and Jetsam.

Thinking men in the United States, as here, are beginning to discuss the over-production of law with special reference to new legislation and the tinkering of statutes. In the United States the grievance is said to be very serious; some 14,000 statutes being enacted yearly as compared with 292 in England. We would present that "horrid example" to our legislatures in this country.