The collecting banks could not be held to have warranted the genuineness of the forged cheques merely by demanding payment of them without endorsing them.

Barwick, K.C., and J. H. Moss, for the Crown. Shepley, K.C., and Orde, for defendants. Riddell, K.C., and Matheson, for Quebec Bank. J. A. Ritchie, for Sovereign Bank. G. F. Henderson, for Royal Bank.

HIGH COURT OF JUSTICE.

Boyd, C., Magee, J., Mabee, J.]

COBEAN v. ELLIOTT.

[March 28.

Limitation of actions-Real Property Limitation Act-Tenant at will-Devise for life to tenant upon condition-Violation of condition.

A testator, dying in 1873 devised land of which his brother had been in possession since 1848 to his (the testator's) son after the death of his brother, to whom he devised a life estate, “on condition that he neither sells nor rents the same without consent in writing of my son." The brother continued in possession, and on the 1st April, 1895, leased the land (without consent) for one year. The plaintiffs, claiming under the son, sought to recover possession from the devisee of the brother, by an action begun on the 29th May, 1905.

Held, that the brother, having openly set at naught the condition of the will, should not be presumed to have accepted the devise, and the Real Property Limitation Act was a bar to the action.

Semble, upon the evidence, that the brother went into possession as tenant at will, and that the statute had run in his favour before the death of the testator.

Judgment of FALCONBRIDGE, C.J.K.B., affirmed.

W. T. J. Lee, for plaintiffs. T. J. Blain, for defendants.

Mulock, C.J., Ex., Clute, J., Anglin, J.]

[April 2.

IN RE VILLAGE OF BEAMSVILLE v. FIELD-MARSHALL.

Municipalities-Waterworks - Arbitration - Including matters not under Act-Appeal.

Certain parties having commenced proceedings under the Municipal Act and Waterworks Act and appointed arbitrators in respect to certain lands taken by the municipality in connection with their waterworks system, afterwards entered into an agreement under seal defining the scope of the arbitration, and included a claim for breach of contract and other matters not within the said Acts. They did not provide in this agreement for an appeal under s. 14 of the Arbitration Act, R.S.O. 1897, c. 62. The arbitrators in their award, awarded one sum both for the claim "under the Acts and in respect to all matters referred in the said submission."

Held, affirming the judgment of TEETZEL, J., that as the matters not under the Municipal Act and Waterworks Act could not be distinguished in the amount found from the questions referred under the Acts, the award being one and indivisible in its present form, and as the agreement come to by the parties defining the scope of the arbitration did not provide for an appeal under the Arbitration Act, no appeal on the merits lay, or was possible.

Lynch-Staunton, K.C., and A. W. Marquis, for municipality, appellant. Armour, K.C., for Field-Marshall.

Meredith, C.J.C.P., Teetzel, J., Clute, J.]

[April 19.

REX v. WOOLLATT.

Municipal law-By-law for sale of goods within limits.

Held, that the provision in s. 580, sub-s. 9, of the Con. Mun. Act, 3 Edw. VII. c. 19, whereby municipalities are empowered to pass by-laws "for regulating, measuring or weighing (as the case may be) of lime, shingles, laths, cord-wood, coal, and other fuel," must be read as limited to such articles as are marketed or exposed for sale within the limits of the municipality. It cannot have been intended by the Legislature that where such arti

cles have been the subject of a complete contract of sale made beyond the limits of the municipality, and the only act done within it is the delivery, there should be the right to impose what is practically a tax upon the vendor of the articles.

Douglas, K.C., for informant. W. H. Blake, K.C., for defen

dant.

Meredith, C.J.C.P., Britton, J., Teetzel, J.]

MASSEY-HARRIS v. DELAVAL SEPARATOR CO.

Defamation.

[April 28.

Judgment of MABEE, J., reported ante, p. 112, and 11 O.L.R. 227, affirmed.

MacInnes, for defendants, appellants. Grayson Smith, for plaintiff's.

Mulock, C.J. Ex., Anglin, J., Clute, J.]

BROHM v. TOWNSHIP OF SOMMERVILLE.

[May 3.

Municipal corporation-Snow fences-By-law-Conditional undertaking by municipality to pay for fences-Compulsory arbitration.

The defendants' council passed a by-law enacting:-"That where the road is liable to be blocked with snow in winter and where in the opinion of the council such drifts would be prevented by the removal of any rail, board, or other fence and replacing the same by wire or other fence, the council may order the removal of such fence, .. and in the removal of such

fence or fences by the owners and the erection of such wire or other fences as the council shall direct, the parties erecting such wire or other fences shall be paid out of the general funds of the municipality a sum not exceeding 35 cents per rod of fence." The plaintiff before erecting certain wire fencing submitted his contract for its construction to the council through the medium of a neighbour; at a session of the council, and in presence of the township clerk and several councillors, the reeve expressed to this neighbour the opinion and order of the council that the plaintiff's existing fence should be removed, and its direction

for or approval of, the erection of the wire fence proposed by the plaintiff; the neighbour communicated this order and direction to the plaintiff, and pursuant thereto and in reliance on the by-law, and the sanction of the council, the plaintiff removed his existing fence, and had the wire fencing in question erected.

Held, that defendants were liable to pay for the wire fencing The by-law was a conditional undertaking by them to pay, and the plaintiff had fulfilled the required conditions.

By the Act respecting Snow Fences, R.S.O. 1897, c. 240, s. 1:-"If the council and the owner cannot agree in respect to compensation to be paid by the council, then the same shall be settled by arbitration in the manner provided in the Municipal Act and the award so made shall be binding upon all parties."

Semble, that this did not preclude the jurisdiction of the Court where, as here, the parties were not merely unable to agree as to the amount of compensation, but the municipal corporation wholly repudiated liability.

McDiarmid, for plaintiff. F. D. Moore, for defendants.

Province of New Brunswck.

SUPREME COURT.

Barker, J.]

LOGGIE v. MONTGOMERY.

[Oct. 13, 1905.

Easement-Origin in grant-Prescriptive title-EvidenceReferee's deed-Proof of decree.

In 1854, R. B. owner of lot 8 conveyed the northern part thereof to M., together with the privilege of taking water thereto through a pipe, which M. was empowered to build, from a spring on the southern part of the lot. By mesne assignments M.'s lot, with the water privilege, became vested in T. B. In 1871 he executed to S. for 21 years, with covenant for renewal, a lease of the spring, with a right to lay pipe therefrom through the southern part of lot 8 to lot 9. The ownership of the southern part of lot 8 was then in H., and in 1905 became vested in the defendant. In 1872 S. built a pipe from the spring across

H.'s land to lot 9, and it has been in uninterrupted use ever since, a period exceeding 20 years. In 1904 lot 9 with the lease was assigned to the plaintiffs. The plaintiffs' predecessors in title always rested their right to the easement on the lease and not upon adverse user.

up.

Held, that prescriptive title to the easement could not be set

A deed of a Referee in Equity, though purporting to have been made under a decree of the Court, is not admissible in evidence without proof of the decree.

Pugsley, K.C., A.-G., Tweedie, K.C., for plaintiffs. Allen, K.C., Teed, K.C., and Lawlor, for defendant.

Barker, J.]

[Dec. 19, 1905.

DUNCAN v. TOWN OF CAMPBELLTON.

Arbitration-Injunction-Jurisdiction.

An injunction will not be granted to restrain a party from proceeding with an arbitration where the result of the arbitration will be merely futile and of no injury to the party seeking the injunction.

An arbitration to determine the value of land of the plaintiff taken by the defendants will not be restrained because a condition precedent to the taking of the land may not have been complied with.

Mott, for plaintiff. White, K.C., and McLatchy, for defendants.

Barker, J.]

IN RE CUSHING SULPHITE FIBRE CO.
Practice-Order-Variation-Mistake.

[March 9.

A company against which a winding-up order had been made obtained at the instance of the large majority of its shareholders and holders of its bonds an order in an action by it against C. granting leave to appeal to the Supreme Court of Canada from a judgment of the Supreme Court of this Province confirming a judgment of the Supreme Court in Equity, and entrusting the conduct of the appeal to the company's solicitors. Subsequently the liquidators of the company moved to vary the order by add