at his death, and attain 21 or marry, "provided that in case any one or more of my children shall predecease me leaving any child or children living at my death, then such child or children of my deceased child shall take their parents' share." The question to be determined was whether or not the children of the son, who was dead at the date of the will, were entitled to participate in the residue, and Joyce, J., held that they were not.

PRACTICE DECLARATORY JUDGMENT-DECLARATION THAT EXPIRED PATENT WAS INVALID-RULE 289-(ONT. JUD. ACT, s. 57 (5)).

North Eastern M.E. Co. v. Leeds Forge Co. (1906) 1 Ch. 324 was an action to obtain a declaration that a patent for an invention owned by the defendants which had expired, was invalid, no consequent relief being asked. Joyce, J., held that in the exercise of a proper discretion, the declaration ought not to be granted, the case being in effect an attempt on the part of the plaintiffs to anticipate their defence in case the defendants should see fit to sue the plaintiffs for an infringement; and the action was, therefore, dismissed with costs.

COMPANY-VOTING

PERSONALLY OR BY PROXY"-POLL-POLL

ING PAPERS-MANNER OF VOTING.

In McMillan v. Le Roi Mining Co. (1906) 1 Ch. 331 a somewhat novel method of taking the vote of shareholders was resorted to, the validity of which was called in question. The articles of the company provided in the ordinary way for the votes of shareholders being given either personally or by proxy, and that if a poll were demanded it should be taken "in such manner and at such time and place as the chairman of the meeting directs." At a general meeting a poll was demanded and the chairman directed that it should be taken by means of polling papers signed by the members and delivered at the offices of the company on or before a fixed day. This Joyce, J., held was neither voting personally nor by proxy, and was ultra vires of the chairman to direct.

VENDOR AND PURCHASER-OPEN CONTRACT-PARTY WALL NOTICE AND AWARD-LATENT DEFECT-MATERIAL FACT-DUTY OF VENDOR TO DISCLOSE FACT-RESCISSION.

Carlish v. Salt (1906) 1 Ch. 335 was an action by a purchaser to recover his deposit, and expenses of investigating the title to a parcel of land which he had contracted to buy from the defendants, but which contract had fallen through in the

following circumstances. Two days prior to the contract an award had been made pursuant to a statute requiring the defendants to pay half the costs of rebuilding a party wall on the premises in question. This award the defendants omitted to disclose to the plaintiffs, and the plaintiffs entered into the contract in complete ignorance of the proceedings in reference to the wall. Upon discovery of this award in the November following the plaintiffs refused to complete except upon receiving compensation. The plaintiffs treated the contract as at an end, but refused to return the deposit or pay the plaintiffs' costs of investigating the title. Joyce, J., who tried the case, determined that the award constituted a latent defect which the defendants were bound to disclose to the purchaser, and that the plaintiffs were entitled to the relief they claimed.

DECLARATORY JUDGMENT-TRESPASS-MUNICIPAL CORPORATION— RULE 289-(ONT. JUD. ACT, s. 57 (5)).

Offin v. Rochford (1906) 1 Ch. 342 is another case in which a merely declaratory judgment was sought. In this case the plaintiff owned lands abutting on a highway. The defendants, a municipal corporation, claimed that part of the plaintiff's land formed part of the highway and threw down a fence erected by the plaintiff to bound it from the highway. This was done more than six months prior to the commencement of the action. In so far as the action was founded on this alleged wrongful act the action was too late, not having been brought within six months of its commission as required by a statute in that behalf. Warrington, J., who tried the action, held that the mere claim of the municipal corporation that the land in question was a part of the highway gave the plaintiff no cause of action, and furnished no ground for making a declaratory judgment, and that the action being too late so far as based on the removal of the fence, it altogether failed, and he, therefore, dismissed it with costs.

COMPANY-WINDING UP ORDER-CONTRACT TO SELL ASSETS

OMISSION TO CONVEY-DISSOLUTION OF COMPANY-TRUSTEE ACT, 1893 (56 & 57 VICT. c. 53) ss. 25 (1), 26-(R.S.O. c. 336, s. 5).

Re No. 9 Bomore Road (1906) 1 Ch. 359. A limited company was the owner of the lease of premises for the residue of an unexpired term of 99 years; it went into liquidation and the leasehold was sold, but by an oversight no assignment of the lease was executed and the company had become automatically

dissolved. The purchasers of the lease now applied under the Trustee Relief Act, 1893-(see R.S.O. c. 336, s. 5) for the appointment of a new trustee and for vesting order. Warrington, J., made the order asked.

COMPANY-DEBENTURE HOLDERS' ACTION-RECEIVER AND MANAGER-ADVANCES TO RECEIVER-RECEIVER'S REMUNERATIONPRIORITY OF CLAIM OF RECEIVER.

In re Gladsir Copper Mines Co., English E. M. Co. v. Gladsir Copper Mines Co. (1906) 1 Ch. 365 was a debenture holders' action in which a receiver and manager had been appointed to carry on the business. For the purpose of carrying it on the receiver was from time to time authorized to borrow money which was secured by first charges on the assets. The money was advanced by the plaintiffs, and nothing was said in the orders authorizing such loans as to any reservation of the receiver's claim for remuneration and costs, but they expressly provided that the receiver was not to be personally liable for such loans. The receiver continued the business, which ultimately proved a failure and the assets of the concern were realized and proved insufficient to pay in full the receiver's remuneration and costs, and also the advances of the plaintiffs. Joyce, J., held, in these circumstances, that the receiver was entitled to priority of payment, though he thought it would have been otherwise if the advances had been made by a stranger to the litigation. The Court of Appeal (Williams, Stirling and Cozens-Hardy, L.JJ.,) affirmed his decision.

ADULTERATION-SAMPLE-PURCHASE FOR ANALYSIS-DIVISION OF

SAMPLE SALE OF FOOD & DRUGS ACT, 1875 (38 & 39 VICT. c. 63), s. 14—(R.S.C. c. 107, s. 9).

In Lowery v. Hallard (1906) 1 K.B. 398 a Divisional Court (Lord Alverstone, C.J., and Lawrance and Ridley, JJ.,) held, on a case stated by magistrates, that where a sample of goods is taken for analysis under the Food & Drugs Act, 1875, s. 14 (R.S.C. c. 107. s. 9), each of the three parts into which the sample is required to be divided must be sufficient to admit of an analysis being made thereof.

DISCOVERY-EXAMINATION FOR DISCOVERY-DEFAMATION-LIBEL

IN PERIODICAL-DEFENCE OF FAIR COMMENT-INFORMATION ON WHICH ALLEGED LIBEL FOUNDED—NAMES OF INFORMANTS. Plymouth Mutual Society v. Traders Publishing Association (1906) 1 K.B. 403 was an action for libel contained in a periodical published by the defendants. The defence was fair comment.

The plaintiff's applied to examine the defendants for discovery, (1) as to the information the defendants had when they published the alleged libel, and which induced them to believe in its truth, and whether they did in fact believe in its truth; and (2) the names of the persons from whom they received the information. The Court of Appeal (Williams, Stirling and Moulton, L.JJ.,) held affirming Sutton, J., that the first question must be answered; but overruled him as to the second, being of opinion that in actions against newspaper publishers for libels in newspapers, according to the general rule of practice, in the absence of any special circumstances, the defendants ought not to be compelled to answer the second question.

CONTRACT-LIQUIDATED DAMAGES AS PENALTY-DEPOSIT-FOR

FEITURE.

Pye v. British Automobile Syndicate (1906) 1 K.B. 425 is a case in which the somewhat difficult question was raised as to whether a sum agreed on to be forfeited, in the event of a breach of a contract, was to be regarded as a penalty, or liquidated damages. In this case the plaintiff entered into a contract to act as the defendants' agent for the sale of automobiles. The plaintiff as part of the agreement deposited with the defendants £300 as a deposit in respect of the goods, which sum was to be repaid upon payment by the plaintiff of the price of all the goods mentioned in a schedule to the agreement, which specified the automobiles to be sold, and it was provided that if the plaintiff refused to accept, or pay for any of the goods the defendants were to be at liberty to declare the deposit forfeited to the defendants "by way of liquidated and ascertained damages." The plaintiff committed a breach of the agreement and the defendants declared the deposit forfeited. The action was brought to recover the deposit, the plaintiff contending that the agreement for forfeiture was merely a stipulation by way of penalty. and that as it was made to take effect on the occurrence of one or more of several events, viz., the non-payment of the price of any one or more of the motor cars, notwithstanding the wording of the agreement, the deposit ought not to be construed as liquidated damages. Bigham, J., however, was of opinion that the deposit was, in this case, for liquidated damages and that, therefore, the plaintiff was not entitled to get back the £300. The fact that the plaintiff had actually paid over the money he regarded as an important circumstance, and he thought that the Court ought to give effect to the express words of the contract

unless it could be sure that the plain intention of the parties to be gathered from all the circumstances, was that the sum named was to be a penalty.

LIQUOR LICENSE-SALE AT UNAUTHORIZED PLACE UNAUTHORIZED ACT OF SERVANT MASTER AND SERVANT-SCOPE OF EMPLOYMENT (R.S.O. c. 245, ss. 49, 50, 72).

Boyle v. Smith (1906) 1 K.B. 432 was a case stated by magistrates. The defendant was licensed to sell liquor by retail. He sent his servant to deliver beer to customers. The servant had no authority to sell, his sole duty was to deliver beer to customers who had previously given orders therefor to the defendant; and the servant had been expressly ordered not to sell or deliver beer to other persons, and to bring back beer he was unable to deliver. The servant in disobedience of his orders sold and delivered beer from his van in a street to persons who had not previously ordered it. The magistrate refused to convict the master for selling liquor in an unauthorized place, and the Divisional Court (Lord Alverstone, C.J., and Lawrance and Ridley, JJ.,) held that he was right, on the ground that the servant was himself responsible and not his master for his unauthorized act.

COSTS-WRIT OF POSSESSION-JUDGMENT FOR POSSESSION UNDER RULE 118-(ONT. RULE 604)-JUD. ACT, s. 5-(ONT. RULE 1130).

The Dartford Brewery Co. v. Moseley (1906) 1 K.B. 462 was an action for rent, and to recover possession of land. The plaintiff applied for and obtained judgment for possession of the land, under Rule 118 (Ont. Rule 604), the claim for rent standing over. The defendant having failed to deliver possession, a writ to compel delivery of possession was issued, and the plaintiff now applied for an order for the payment of the costs of the writ. Lawrance, J., made an order as asked and the Court of Appeal (Williams and Stirling, L.JJ.,) affirmed the order, holding that the costs were in the discretion of the Court under s. 5 of the Jud. Act. (Ont. Rule 1130). Under the combined effect of Ont. Rules 870, 871, it is possible such an application would be unnecessary in Ontario.