tificate was delivered to her and had always remained in her possession. In 1886 the husband purported to surrender this certificate procuring another one to be issued in favour of his son and daughter, which was delivered to the daughter and had always been in her possession. In 1887 the wife procured a divorce from her husband, but which was admitted to be invalid; and in 1889 the husband went through a form of marriage with one E., when he purported to surrender the last named certificate, procuring another one to be issued in E.'s favour, to whom it had been delivered, and who had always retained possession of it. On the husband's death a claim made by E. was settled, and the question was as to the rights of the wife and children under the respective certificates. Held, that, under the statute then in force, 47 Vict. c. 20(0), the first certificate became a trust in the wife's favour, over which, so long as she lived, the husband had no control except under s. 5 and 6 of that Act, which however, did not empower him to surrender and replace it by another, for this only could be done with the wife's consent under 48 Vict, c. 28, s. 1, sub-s. 3(0). J. B. Clarke, K.C., and C. Swabey, for plaintiff. C. A. Moss, for defendants. Divisional Court.] [July 5. ALLAN V. SAWYER MASSEY COMPANY. Negligence-Master and servant-Injury to servant-Dangerous work-Neglect to provide safe guards—Evidence-Damages. The plaintiff employed as a workman in the defendants' foundry was working within a few feet of another workman, who was chipping off the rough projects from a large cast iron cylinder, when he was struck in the eye by one of the flying chips, so as to cause him to lose the sight of that eye. The evidence shewed that the work was dangerous to those in the immediate vicinity, and that the accident might have been avoided by the use of a screen, or by having the casting on a pivot, and having the chipping done in a direction away from the other workmen, or by having it done in an open yard apart from the other employees. Held, 1. There was evidence of negligence to submit to the jury. 2. A finding of $2,000 damages was not excessive. Lynch-Staunton, K.C., for appellants. Counsell, for respon dents. MacMahon, J.] IN RE TALBOT & CITY OF PETERBOROUGH. [Aug. 8. Municipal corporations-By-law-Motion to quash-License fee -Cigarettes-Prohibitive fee. Where a municipal corporation passed a by-law imposing a license fee of $200 on owners or keepers of stores or shops selling cigarettes, Held, that the by-law was ultra vires, as, on the evidence, such license fee was excessive and in effect prohibitive, and therefore the by-law was not one regulating the sale of cigarettes within the meaning of s. 583, sub-ss. 28, 29 of the Mun. Act, 3 Edw. VII. c. 19. D. O'Connell, for the motion. E. H. D. Hall, for the corporation of Peterborough. Anglin, J.] IN RE RODNEY CASKET Co. [Sept. 8. Practice-Winding-up-Service of petition for Assignee for creditors of company. Held, that service of a creditors' petition for a winding-up order upon the assignee for creditors of a company, is not service upon the company as required by s. 8 of the Dominion Winding-up Act, R.S.C. c. 129; nor could such assignee be held an agent of the corporation within the meaning of Con. Rule 159 for the purpose of such service. G. M. Clark, for petitioners. R. C. H. Cassels, for assignee. Anglin, J.] LEES v. TORONTO & NIAGARA POWER CO. [Sept. 8. Railways- - Expropriation Sufficiency of notice Immediate possession. The defendants had, under their special Act, power to acquire "any privilege or easement required by the company over and along any land, without the necessity of acquiring a title in fee simple thereto"; and the Act defined "land" as including any such privilege or easement, etc. In giving notice of expropriation of certain land the defendants did not state whether it was the fee simple of the land, or merely some easement or privilege over and along them which they sought to acquire, but only that the company proposed to acquire the land "to the extent required for the corporate purposes of the company." Held, that such notice was too uncertain to serve as the foundation for proceedings instituted to effect forcible deprivation of property, and the defendants were not entitled to a warrant for immediate possession under section 170 of the Railway Act of 1903. R. Henderson, for defendants. R. McKay, for plaintiffs. Meredith, C.J.C.P., MacMahon, J., Teetzel, J.] CITY OF TORONTO v. GRAND TRUNK RY. Co. [Oct. 1. Costs Taxation Preparing for trial - Searches for missing documents-Party and party costs. In this action a certain contract and certain plans which were of material importance to the trial were lost, and the plaintiffs employed two former solicitors of the City of Toronto to search and endeavour to find these documents or copies of them, which they succeeded in doing, and the same were put in evidence at the trial. For these services a sum of $350 was paid to them. Held, that this expenditure was property taxable among the plaintiffs' party and party costs, though not specially provided for in the tariff. R. C. H. Cassels, for the Grand Trunk Ry. Co. Shirley Denison, for the Canadian Pacific Ry. Co. W. Johnston, for the City of Toronto. Province of New Brunswick. SUPREME COURT. Barker, J.] IN RE LAWTON. Infant-Guardian-Removal. [July 13. It is a ground for the removal of the guardian of the persons of infant children that he has removed out of the jurisdiction of the Court. J. Roy Campbell, for the application. Barker, J.] FAIRWEATHER v. ROBERTSON. [May 22. Costs-Appeal to Judicial Committee of Privy Council-Order of King in Council-Construction. In a suit against L. and R., the bill was dismissed by this Court with costs. An appeal to the Supreme Court was allowed with costs. On appeal by R. to the Judicial Committee of the Privy Council, it was ordered that the decree of the Supreme Court should be discharged as against the appellant with costs, and that the decree of this Court should be restored. L. Held, that costs under the original decree should be taxed to M. G. Teed, K.C., for defendants. G. W. Allen, K.C., for plaintiff. Barker, J.] SEARS v. HICKS. [August 24. Agreement-Family arrangement-Consideration. Held, that the agreement which was under discussion in this case, as a family arrangement, entered into for the purpose of giving effect to the intentions of the deceased without fraud, or misrepresentation, should be upheld. White, K.C., and Friel, for plaintiff. Powell, K.C., and Bennett, for defendant. Province of Manitoba. Full Court.] KING'S BENCH. [June 25. HAYWARD V. CANADIAN NORTHERN RY. Co. Railway company-Negligence-Condition requiring notice of claim for damage to goods. The plaintiff's claim was for damage to goods shipped over defendants' railway, caused by the negligence of their servants. The shipping bill contained a condition providing that there should be no claim for damage to goods unless notice in writing and the particulars of the claim were given to the station freight agent at or nearest to the place of delivery within thirtysix hours after delivery. No such notice had been given, but plaintiff's counsel contended that, under sub-section 3 of section 214 of the Railway Act, 1903, the defendants could not be relieved from the action by the condition relied on, as the damage had arisen from the negligence or omission of defendants or their servants. Held, that section 214 of the Act must be read along with section 275, which provides that "no condition made by the company impairing, restricting, or limiting its liability in respect of the carriage of any traffic shall relieve the company from such liability unless such . . condition shall have been first authorized or approved by order or regulation of the Board of Railway Commissioners of Canada," and that, as the condition in question had been approved by that Board, it was binding on the plaintiff and she could not recover. G. T. R. v. MacMillan, 16 S.C.R. 543, and Mason v. G. T. R., 37 U.C.R. 163, followed. Daly, for plaintiff. Laird, for defendants. Richards, J.] WOOD v. JOHN ARBUTHNOT Co. Set-off-Principal and agent. [August 24. The defendants ordered a quantity of fence wire from the Imperial Implement Company, which had previously, to the knowledge of the defendants, been selling the wire as the agents of the Canadian Steel and Wire Company. Prior to the order, however, the Canadian company had sold the wire to the plaintiffs. The Imperial company delivered the wire and billed it in their own name to the defendants. Held, in an action by the plaintiffs for the price of the wire, that the defendants could not set off a claim which they had against the Imperial Company, although they might have done so if the Imperial Company had been the owners of the wire or if they had not known that that company was only the agent for its sale. So far as the claim of set-off was concerned, it was immaterial whose agents the defendants thought the Imperial Company to be. Boulton v. Jones, 2 H. & W. 564, distinguished. |