toll to be paid for the use by anyone but the owner of his improvements in the stream, but it does not give him power to determine whether or not the rate fixed by him shall apply to the past or to the future. That is a question solely for the Court to determine when it arises in an action.

(2) Parties entitled to such tolls are not confined to the statutory remedy by distress proceedings (section 19), but may bring an action, nor is such action confined within one month, the period within which by section 19 the seizure must be made.

Per MEREDITH, J.A.-That which the plaintiffs were entitled to was a toll when fixed in the manner prescribed by the Act, until which time the common right to use the stream continued unburdened.

Riddell, K.C., and Hodgins, K.C., for plaintiffs, appellants. Aylesworth, K.C., and A. G. F. Lawrence, for respondents.

HIGH COURT OF JUSTICE.

Meredith, C.J.C.P.]

[April 19.

IN RE WIARTON BEET SUGAR CO.
FREEMAN'S CASE.

Company-Winding-up-Bonus shares-Transfer of—Contributory-Directors-Breach of trust-Winding-up Act.

A man to whom bonus shares in a company have been issued as fully paid up and who has transferred them previously to winding-up order to bonâ fide purchasers for value without notice, is not liable to be placed on the list of contributories for the amounts which ought to have been paid on them as between the company and himself-there being nothing in the Windingup Act, R.S.C. c. 129, which creates any such liability on the part of a past member of a company, where he is not subjected to such a liability by the Act under which the company was created or some Act relating thereto.

But the alleged contributory in this case having been a director of the company where the bonus shares were allotted to

him was liable as for a breach of trust in being a party to the allotment of the shares as fully paid up, as well as in putting them off on his transferees to the prejudice of the company as fully paid up shares, and might properly be made liable under s. 83 of the Act.

W. M. Douglas, K.C., for shareholder. W. H. Blake, K.C., for liquidator.

Falconbridge, C.J.K.B.]

[June 11.

IN RE JANSEN.

Insurance-Apportionment of benefits between wife and children -Preferred beneficiaries—Instrument in writing-Invalid will.

A document intended to operate as a will, but wholly invalid as such, cannot be treated as an instrument in writing under s. 160, sub-s. 1, of the Ontario Insurance Act, R.S.O. 1897, c. 203, whereby the assured may by an instrument in writing attached to or endorsed on or identifying a policy by its numbers or otherwise vary a policy or declaration or apportionment previously made in respect to the benefit to be taken under a policy by wife or children respectively.

Laidlaw, for widow. A. G. F. Lawrence, for five children.

Full Court.]

Province of Manitoba.

KING'S BENCH.

SINCLAIR v. RUDDELL.

[May 7. False imprisonment-Reasonable and probable cause-MaliceMalicious prosecution-Application for new trial-Putting questions to jury-Misdirection-Evidence as to character of plaintiff.

The defendant McKay, a peace officer, at the request of the defendant Ruddell, arrested the plaintiff on suspicion of having

stolen a valise in a hotel and detained him in custody for about two hours. The plaintiff brought this action for false imprisonment. At the trial the judge told the jury that in his opinion there was an entire absence of reasonable and probable cause for the arrest, but left that question to be decided by them on the evidence. The jury returned a general verdict for the plaintiff and assessed the damages at $500, $250 against each defendant. On application to this Court for a new trial the following points were decided.

1. The trial judge was not bound to put to the jury specific question, such as, "Did the defendants take reasonable care to inform themselves of the facts?" "Did the defendants honestly believe that the plaintiff was guilty of the offence for which he was arrested?" but might, with a proper charge, submit all the facts to the jury leaving them to return a general verdict.

2. In charging the jury, the Judge should not suggest to them that they might put themselves in the plaintiff's position, and. consider how much they ought in that case to be paid, but this only affected the quantum of damages as to which no objection had been raised. Hesse v. St. John Ry. Co., 30 S.C.R. 218, followed.

3. Evidence to prove the bad character of the plaintiff was properly rejected at the trial: Newsome v. Carr, 2 Stark. 69; Jones v. Stevens, 11 Price 235, and Downing v. Butcher, 2 Moo. & R. 374.

4. The judge's charge to the jury that it is necessary in such an action for the plaintiff to prove malice (as he would in an action for malicious prosecution) was wrong, but, although there was no evidence of malice, the misdirection was not a ground for disturbing the verdict, as it was not attacked as being excessive.

5. There is no ground for an action for malicious prosecution unless the acts complained of are the result of a complaint laid before a magistrate: Austin v. Dowling, L.R. 5 C.P. 534.

Howell, K.C., for plaintiff. Hoskin and Bowen, for defendants.

VOL. XLII.

AUGUST.

NOS. 15 AND 16.

MR. JUSTICE STREET.

"Justum et tenacem propositi virum."

The Horatian line above quoted seems fitly to indicate the general impression made by the late Mr. Justice Street on those who knew him best and recognized in him one who was in all the relations of his personal and professional life "a just man and firm of purpose." Such was not always the opinion of those who were not so well acquainted with him and who were sometimes led to imagine that the low-pitched voice, the slender, almost attenuated frame, and the gentle manner were the index of a mind that might be easily bent and influenced by those of a more masterful temperament. How utterly baseless any such view of his character would be, none can know so well as his brethren of the Bench and of the Bar, who while fully appreciating the charm of his suaviter in modo, were no less forced to recognize, not always to their complete contentment, his fortiter in re. It may be said, however, that his long judicial career of nearly twenty years had impressed the public no less than the profession with the salient features of his personality to which we have referred.

It is not necessary here to give more than the briefest outline of the career of the deceased judge, the main facts of which moreover lie within a comparatively narrow compass. William Purvis Rochfort Street was born in November, 1841, in the good. town of London the Less, which has sent so many of its sons to grace the Bench, and was educated at the Grammar School there under the supervision of that fine old scholar and gentleman, the Rev. Benjamin Bayly, one of whose sons, the well-known K.C., was a pall-bearer at his funeral. He studied law in his native city, was called to the Bar in 1864, and forthwith was taken into partnership by the late H. C. R. Becher, Q.C., a well-known

leader of the Bar in London and Western Ontario generally in those days. He speedily attained a high position more especially as a pleader and consultant, though his friends would scarcely claim for him the possession of those special gifts which qualify their owner to shine as a leading counsel in the strenuous arena of nisi prius. His reputation however as a consummate lawyer steadily increased, and in 1883 he was created a Q.C. by the Marquis of Lorne. It is said also on good authority that in the same year he was offered a Superior Court judgeship, but refused for the reason that he was not satisfied that his knowledge of criminal law was adequate to the requirements of the position. This fact illustrates alike the modesty and the conscientiousness which were such strongly marked elements in his character, but fortunately these scruples were overcome a few years later, and on November 30, 1887, he was raised to the Bench as a puisne judge of the then Queen's Bench Division, a few days after a similar dignity was conferred upon the present Chief Justice of the Division. About the same time the late Hon. J. D. Armour became the Chief Justice of that division, and members of the Bar who are also graduates of our National University will long be glad to remember that for many years that notable Court was made up of three men who were gold medallists of the University in classics, modern languages and law, respectively.

Our limits will not permit us to refer in any detailed way to Mr. Justice Street's judicial career. It was soon felt by all who came before him that in him were united many of the characteristics that go to make up the ideal judge. Rapid and keen comprehension of facts, wide and accurate grasp of legal principles, unfailing courtesy to all with whom he came in contact (including even the "younger" or "youngest members of the Bar") tempered by a dignity on which none could presume, and a firmness which all were forced to respect-all these good judicial gifts were his by common consent. It has been said that he was too "technical" in his application of legal principles and there may be some force in the criticism. Every one has