14th, but, although he instructed his solicitor by telephone between 6 and 7 p.m. of the 15th to accept the offer, his proceedings and those of his solicitor were so dilatory that the plaintiff was not informed of the acceptance until about 10 a.m. of, the 16th, and was unable to communicate it to the proposed purchaser within the time limited, and the offer was withdrawn. Up to this time neither the defendant nor his solicitor had asked plaintiff to give the name of the purchaser.

Held, that under the cirucmstances, the defendant had waived the condition requiring the plaintiff to "produce" the purchaser to the defendant, and that the latter had refused to make the sale, within the meaning of the agreement, and that plaintiff was entitled to recover from the defendant one fourth of the whole purchase money. This was not the ordinary case of an agent employed to find a purchaser. The amount to be paid plaintiff was five times the ordinary commission. The agreement was made to settle a suit in which the plaintiff claimed an interest in the lands, and he had a real and substantial interest in them which, under certain circumstances, was to become forfeited to the defendant. Forfeitures are not favoured by the Court, and if, by any reasonable contruction of the agreement a forfeiture can be avoided, the Court is bound to adopt such construction. It was admitted that if the plaintiff had given the purchaser's name to the defendant's solicitor that would have been a sufficient "producing" of the purchaser, but the plaintiff was not even asked for his name. It may fairly be inferred that the plaintiff had the right to employ agents to sell the land, who would thereby become the agents both of the plaintiff and defendant, and, therefore, the agent through whom the offer was made was the defendant's agent as well, and the purchaser was known to him, which would satisfy the requirements of the agreement. If the name had been asked for, no doubt the plaintiff could have ascertained and communicated it to the defendant or his solicitor in plenty of time, but the omission to give the name was treated as entirely unimportant, and it would be unjust to now permit the defendant to raise the objection, and by so doing deprive the plaintiff of an interest in lands valued at over $6,000.

Haggart, K.C., and Sullivan, for plaintiff. Pitblado and Hoskin, for defendant.

Richards, J.]

[June 23.

IVESON v. CITY OF WINNIPEG.

Municipality-Negligence-Notice of action-Liability for nonrepair of highway.

The plaintiff's claim was for damages for injuries received in consequence of a fall caused by stepping on a decayed plank in a sidewalk on one of the streets of the city. The plank broke under plaintiff's weight. Its weakness was not visible either to the plaintiff or to the defendants' inspector who used to walk over it about three times in every two weeks. The sidewalk in question had been built about twentytwo years before, and was old and in constant need of repairs. It was proved that very frequently the stringers and the under side of the planks became rotten, while the upper side appeared still sound enough to walk on.

Held, that the method of inspection of the sidewalk was not sufficient to protect the city from liability for negligence to a person injured as the plaintiff was. The practice was to look for breaks and to replace planks found broken, but little or nothing was done to obviate the danger of breaks occurring, which danger should, in the case of such a sidewalk, have been anticipated.

The defendants also objected to the sufficiency of the notice of the action given by the plaintiff as required by sub-s. (b) of s. 667 of "The Municipal Act," R.S.M. 1902, c. 116, which says that "notice of any such claim or action must be served upon the clerk of the municipality within one month after the happening of the alleged negligence." Plaintiff's notice stated that she claimed from defendants $1,000 damages with respect to the matters therein set out and that she would commence an action against defendants in the Court of King's Bench to recover that sum for injuries sustained by her through the omission and default of defendants to keep in repair the sidewalk in question. It was given within a month from the date of the injury, but did not state such date or the nature of the injury or how it had occurred.

Held, (1) following Curle v. Brandon, 15 M. R. 122, that the notice was sufficient. The statute should receive a liberal construction, and requirements, not specifically stated in it, and not necessarily implied, should not be read into it.

McInnes v. Egremont, 5 O.L.R. 715; Keen v. Millwall Dock Co., L.R. 8 Q.B.D. 482, and Christie v. St. John, 21 S.C.R. 7, distinguished on the ground that the statutes under which they were decided differed from the above statute.

(2) Plaintiff's injuries having resulted much more seriously after the notice was given than she anticipated, she was not precluded by the terms of the notice from claiming and recovering in the action a larger amount than that mentioned in the notice.

Verdict in plaintiff's favour for $3,000 damages.

Robson and Coyne, for plaintiff. I. Campbell, K.C., and Hunt, for defendants.

Full Court.]

BENNETT v. GILMOUR.

[June 25.

Practice-Amendment-Transfer of land under Real Property Act does not work an estoppel-Parties to action.

Appeal from order of Perdue, J., refusing to allow certain amendments to the statement of claim asked for by the plaintiffs.

By that statement the plaintiffs claimed the land in question under a transfer from one James Gardiner, not a party to the action, who was the registered owner by a certificate of title issued under the Real Property Act, and alleged that, after the delivery of the transfer to them and before its registration, the defendant Gilmour registered a caveat against the land, claiming that the said Gardiner was a trustee for him for an undivided one-third interest therein, that after the filing of such caveat the defendant Gilmour sold his said interest to Gardiner, and that the plaintiffs, as transferees from Gardiner, were entitled to the fee simple in said land free from any claim of Gilmour, and they asked that this said caveat and claim of Gilmour might be declared to be a cloud on their title.

The plaintiffs sought to amend by setting up that, pursuant to the sale to Gardiner by Gilmour of his one-third interest, Gardiner paid money and gave securities to Gilmour for the purchase price and that Gilmour had realized money on such securities, and had parted or otherwise dealt with them, and by asking, as alternative relief, that they might be declared entitled to stand in the position of Gardiner towards Gilmour and that an account might be taken as between Gardiner and Gilmour,

and that plaintiffs might be declared entitled to specific performance by Gilmour of his said agreement with Gardiner.

Held, that leave to make such amendments had been properly refused on the following grounds:

(1) A transfer of land, in the form provided in the Real Property Act, made by the registered owner, and without any special comments or recitals, does not operate as an estoppel and does not rest in the transferee an equitable interest subsequently acquired by the transferor, there being no fraud or misrepresentation by the latter. No covenant is expressed in the transfer, and the law does not imply any. The only recital in the transfer is that the transferor is the registered owner, which Gardiner admittedly was in this case.

In a transfer under the Real Property Act, all that the transferor purports to convey is "all his estate and interest in the said piece of land" without specifying what that estate and interest consists of. The facts stated do not, therefore, shew that the plaintiffs are entitled to Gardiner's subsequently acquired interest, and the proposed amendments would be useless.

Noel v. Bewley, 3 Sim. 103, and Re Hoffe, 82 L.T.N.S. 556, distinguished.

(2) Gardiner was not a party to the action, nor was it proposed by the amendments to make him a party.

Appeal dismissed with costs.

Potts and Minty, for plaintiffs. Howell, K.C., and Hoskin, for defendants.

Duff, J.]

Province of British Columbia.

SUPREME COURT.

[June 6.

MCGREGOR v. THE CANADIAN CONSOLIDATED MINES, LTD.

Statute, construction of-Penal statute-Inspection of Metalliferous Mines Act Amendment Act, 1901, s. 12 Rule 21a"Machinery hereinafter mentioned," meaning of.

On a case stated by the police magistrate of Rossland, the following questions were submitted:

(a) Whether employment for wages to perform duties which are in violation of the provisions of Rule 21a of s. 25 of the Inspection of Metalliferous Mines Act, 1901, constitutes an inducing or persuading within the meaning of Rule 216 of said amended Act?

(b) Whether the words "preceding section" in the third line of said Rule 21b apply to the matters referred to in Rule 21a?

(c) Whether the provisions of said Rule 21a apply at all unless both a direct-acting, geared, or indirect-acting hoisting engine, exceeding fifty horse power and a stationary engine or electric motor (exceeding fifty horse power) are operated in the same mine?

Held, answering the first two questions in the affirmative, that in construing a penal statute, the rule to be followed is that by which that sense of the words is to be adopted which best harmonizes with the context and promotes in the fullest manner the policy and object of the Legislature.

The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent; and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention.

Semble, the phrase "machinery hereinafter mentioned" in Rule 21a of s. 25 of the Inspection of Metalliferous Mines Act, as enacted by c. 37 of 1901, means "any of the machinery hereinafter mentioned."

R. M. Macdonald, for plaintiff. MacNeill, K.C., for defendants.

Flotsam and Jetsam.

NOT COMMITTING HIMSELF.-In a Scottish Court recently an important witness failed to put in an appearance, and the judge indignantly demanded to know why he was not present. "It's his duty to be here. Where is he?" demanded his honour. The officer, with true Scotch canniness, replied: "Weel, I'll no say for that-but he's dead."