SLANDER MAGISTRATE-JUDGE'-CRIMINAL CHARGE WITHDRAWAL OF CHARGE-DEFAMATORY WORDS AGAINST PROSECUTOR-MALICE-PRIVILEGE STRIKING OUT PLEADING RULE 288-(ONT. RULE 261).

In Law v. Llewellyn (1906) 1 K.B. 487 the defendant applied under Rule 288 (Ont. Rule 261) to strike out the statement of claim as shewing "no reasonable cause of action." The action was brought for slander, the defendant was a magistrate before whom the plaintiff had prosecuted a charge against two persons for obtaining money by false pretences. The charge was withdrawn and after its withdrawal the defendant had uttered the words complained of, alleging that he regarded the charge as a gross attempt to blackmail. Channell, J., held that the occasion was privileged and no cause of action was shewn and struck out the statement of claim accordingly, and his order was affirmed by the Court of Appeal (Romer and Cozens-Hardy, L.JJ.,) on the ground, first, that a magistrate is a judge as was settled in Munster v. Lamb, 11 Q.B.D. 588, and Hodson v. Pare (1899) 1 Q.B. 455, and, therefore, anything said by him in the course of his judicial duty was privileged and could not be made the subject of any action; and, secondly, because the charge could not have been withdrawn without the defendant's consent, and it was reasonable and proper for him in giving his consent to state that the reason he allowed the charge to be withdrawn was because he considered it to be utterly unfounded, and the action of the plaintiff in making it discreditable; and it would have made no difference if he had first given leave to withdraw the charge, and then proceeded to give his reasons for doing so; because it would be all part of one and the same transaction.

DIVORCE-ADULTEROUS PETITIONER.

Evans v. Evans (1906) P. 125, although a divorce case deserves attention. The petitioner in 1902 filed a petition for divorce from his wife on the ground of adultery, and a decree nisi was obtained. This decree was subsequently revoked at the instance of the King's Proctor on the ground that the petitioner had concealed from the Court that he had himself been living in adultery. After the revocation of the decree nisi and until the filing of the present petition in September, 1905, the petitioner had ceased his adulterous intercourse and claimed to have lived chastely, and claimed a divorce on the ground of the adultery of his wife in April, 1905, but Barnes, P.P.D., dismissed the petition, holding that the previous adulterous conduct of the petitioner debarred him from relief.

VENDOR AND PURCHASER-POSSESSORY TITLE-LAND SUBJECT TO RESTRICTIVE COVENANT-NOTICE-REAL PROPERTY LIMITATION ACT, 1833 (3 & 4 Wм. IV. c. 27), s. 34-(R.S.O. c. 133, s. 15).

In re Nisbett & Pott (1906).1 Ch. 386. When this case was before Farwell, J., (1905) 1 Ch. 391, we drew attention to its importance (ante vol. 41, p. 480). Now that his decision has been affirmed by the Court of Appeal (Collins, M.R., and Romer, and Cozens-Hardy, L.JJ.,) its authority and importance is still further enhanced. A too prevalent idea that a possessory title suffices to give an absolutely clear title to land is shewn, to be erroneous. In this case the owner of the land in question in 1872, entered into restrictive covenants with his vendor as to building on the land and the user of buildings to be erected thereon. Nisbett, the present owner of the land, who claimed to have acquired title by possession for upwards of 28 years sold the land to Pott subject to a condition that the title should commence with a conveyance dated 11 August, 1890, which recited that one Headde and his father had been then in possession for thirteen years and upwards. After the contract to purchase was entered into, Pott was notified by the covenantees of the existence of the restrictive covenant. The vendor claimed that he was not bound by the covenant because he had purchased without notice, but it appeared that when he bought he accepted less than forty years' title and that if he had insisted on a forty years' title he would then have had notice of the covenant. The vendor also claimed that the effect of the Statute of Limitations being to extinguish the paper title, that it had also the effect of extinguishing all rights derived under that title. The following passage from the judgment of Cozens-Hardy, L.J., shews how the Court dealt with that contention: "The benefit of a restrictive covenant of this kind is a paramount right in the nature of a negative easement, not in any way capable of being affected by the provisions of the Statute of Limitations on which the squatter relies. The only rights extinguished for the benefit of the squatter under s. 34 are those of persons who might, during the statutory period, have brought, but did not in fact bring, an action to recover possession of the land. But the person entitled to the benefit of a restrictive covenant like this never had any cause of action which he could have brought, because unless and until there is a breach of such a covenant, it is impossible for the person entitled to the benefit of it to bring an action." In Ontario, if a deed containing such a covenant is registered, it is

obvious that a purchaser relying on a possessory title would, nevertheless, be affected with notice of, and bound by, the

covenant.

VENDOR AND PURCHASER-CONDITION OF SALE ALLOWING VENDOR TO RESCIND IF OBJECTION INSISTED ON MISDESCRIPTION ABSENCE OF TITLE TO MINERALS COMPENSATION.

In re Jackson & Haden (1906) 1 Ch. 412. The Court of Appeal (Collins, M.R., and Romer and Cozens-Hardy, L.JJ.,) have affirmed the decision of Buckley, J., (1905) 1 Ch. 603 (noted ante, vol. 41, p. 532), but not on precisely the same grounds. The question was one between vendor and purchaser. Property had been sold subject inter alia to conditions of sale (1) providing that the vendors might rescind if the purchaser insisted on any objection which the vendors should be unable to remove or comply with"; and (2) entitling the purchaser to compensation in the event of misdescription. The property consisted of a villa residence; the vendors had no title to the mines or minerals, but in offering the property for sale they did not except them. The purchaser required the vendors to make title to the minerals or in default claimed compensation. The vendors then claimed to rescind. Buckley, J., held that the condition entitling them to rescind did not apply because the objection in regard to the minerals was not "an objection to title," because the vendors had no title at all thereto, and, as he said, "you cannot object to that which has no existence." The Court of Appeal, on the other hand, held that the objection was "an objection to title," but it was, nevertheless, not open to the vendors to avail themselves of the condition for rescission, because such a condition cannot be relied on where the vendor has been guilty of fraud, dishonesty, or recklessness in entering into the contract; here the Court considered the vendors had been guilty of recklessness in describing the property so as to include the mines, to which they knew or ought to have known that they had no title; and, therefore, they were not entitled. to rescind, but that the purchasers were entitled to performance with compensation for the misdescription.

VENDOR AND PURCHASER-SALE BY COURT-CONDITION FOR RESMISREPRESENTATION - RESCISSION PURCHASER'S

CISSION

COSTS RECOVERABLE ON RESCISSION-COSTS.

Holliwell v. Seacombe (1906) 1 Ch. 426 is a cognate case to the two preceding. Here the sale was had under the order of the Court subject to a condition entitling the vendor to apply to

rescind in the event of the purchaser making any requisition the vendor should be advised not to comply with, and stipulating that the return of the deposit should be accepted by the purchaser in discharge of all claims for costs or otherwise. The purchaser applied to rescind on the ground of misrepresentation and the Court granted the application, and the only point in dispute was as to whether the purchaser was entitled to any, and, if any, what costs. The vendor contended he was only entitled to get back his deposit without costs; but Kekewich, J., held that the costs were in the discretion of the Court and that the purchaser should get all costs of investigating the title and of the application to rescind together with the costs occasioned by his bidding and becoming the purchaser.

TRUSTEE-APPOINTMENT OF NEW TRUSTEE-STATUTORY POWER— DONEE APPOINTING HIMSELF TRUSTEE-TRUSTEE ACT, 1893 (56 & 57 VICT. c. 53), s. 10—(R.S.O. c. 129, s. 4).

In re Sampson, Sampson v. Sampson (1906) 1 Ch. 435. An application was made to Kekewich, J., to determine whether a new trustee, purported to be appointed under the provisions of the Trustee Act, 1893, s. 10 (R.S.O. c. 129, s. 4), had been duly appointed, the donee of the power, having appointed himself as the new trustee. The learned judge held that the Act did not authorize the appointment and that the words "any other person" in the Act excluded the donee.

ADMINISTRATION

MARSHALLING ASSETS DEBTS CHARGED ON LANDS-LEGACIES INSUFFICIENCY OF PERSONAL ESTATE. In re Kempster, Kempster v. Kempster (1906) 1 Ch. 446. Kekewich, J., decided that although the Land Transfer Act of 1897 has put land of a deceased person on an equality with his personalty for payment of debts, and it is, therefore, no longer necessary that debts should be charged on the realty; yet where land is devised subject to the payment of debts and the personalty is exhausted in payment of debts, pecuniary legatees and specific devisees are still entitled to have the assets marshalled.

CLUB RULES-POWER TO ALTER RULES-FUNDAMENTAL OBJECTS OF CLUB-GENERAL MEETING-RESOLUTION-VALIDITY. Thellusson v. Valentia (1906) 1 Ch. 480 was an action brought by a member of a recreation club to have a rule, passed at a general meeting, abolishing pigeon shooting, declared ultra vires. The plaintiff contended that as one of the rules provided

that the club was instituted for the purpose of providing a ground inter alia for pigeon shooting, this was one of the fundamental objects of the club, and that it could not be allowed, but Joyce, J., dismissed the action, holding that there was no fundamental rule that any particular sport should be provided, and that what had been done was within the power the club possessed of altering its rules; he being of the opinion that there is no rule of law requiring a company, or other association, to fulfil each and every separate purpose for which it was originally instituted.

RECEIVER AND MANAGER-RECEIVER BORROWING WITHOUT AUTHORITY-INDEMNITY.

In re British P. T. & L. Co., Halifax Banking Co. v. British P. T. & L. Co. (1906) 1 Ch. 497 was a debenture holders' action in which a receiver and manager had been appointed. Authority had been given to the receiver to borrow for the purpose of carrying on the business, a certain amount; he had exceeded the limit and borrowed additional sums without any authority from the Court. He had retired from his office and the plaintiffs in the action applied for a declaration that he was not entitled to any indemnity out of the assets in respect of moneys borrowed in excess of the amount authorized. Warrington, J., however, held that the receiver had not necessarily forfeited his right to indemnity by borrowing without authority, but that if he sought indemnity in respect of the excess it would be necessary for him to shew that having regard to all the circumstances he was justified in contracting the further loan or loans, but that it would not be enough for him to shew that such loan or loans had been contracted bonâ fide and in the ordinary course of business.

HUSBAND AND WIFE-POLICY OF ASSURANCE FOR BENEFIT OF WIDOW

AND CHILDREN-DEATH OF WIFE-SECOND MARRIAGE-MARRIED WOMEN'S PROPERTY ACT, 1870, s. 10-(R.S.O. c. 203, s. 159 (1)).

In re Parker (1906) 1 Ch. 526 a husband effected an insurance on his own life in accordance with the Married Women's Property Act, 1870, s. 10 (see R.S.O. c. 203, s. 159 (1)), by which the policy moneys were expressly made payable to his widow and children, or some, or one of them, as he should by deed or will appoint. He had then a wife living; she died, and he married again, and he then by deed appointed the policy moneys to be paid to the second wife, if she should survive him. He died leaving the second wife and children of both marriages