tiff.

Lynch-Staunton, K.C., for defendant. McBrayne, for plain

Boyd, C., Trial.]

[Oct. 1.

WILLIS v. BELLE EWART ICE CO.

Master and servant-Injury to third person by negligence of servant-Responsibility of master.

Action for damages for injuries sustained owing to alleged negligence of a driver of an ice wagon in the employment of the defendants, who collided in a Toronto street with a motorbicycle on which the plaintiff was travelling. It appeared that the driver had a regular route to follow, over which he delivered ice, and that having delivered his ice he was returning in a drunken condition by a route quite outside his proper homeward course, and on the wrong side of the road, when he ran into the plaintiff.

Held, that the defendants were not liable. From the time the driver having disposed of his ice, delayed returning to the defendants' stables and drove about to enjoy himself, he had in fact discharged himself.

Arnoldi, K.C., for plaintiff. B. H. Ardagh, for defendants.

Falconbridge, C.J.K.B., Magee, J., Mabee, J.]

JONES V. NIAGARA NAVIGATION CO.

[Oct. 2.

Carrier-Contract to carry passenger to United States-Act of Congress requiring payment of poll tax-Liability of carrier -Right to collect from passenger-Unlawful detentionBreach of contract.

The defendants sold the plaintiff a ticket from Toronto to Buffalo and return, by the terms of which he was entitled to travel by the defendants' line of steamers from Toronto to Lewiston, and thence to Buffalo by rail, and to return within five days over the same route. The plaintiff embarked on one of the defendants' steamers, but before reaching Lewiston he was told by an officer of the United States government that he was liable on entering the United States to pay a head tax of $2, and was directed to pay it to the purser of the boat, and at the same time

told that he would be entitled to a refund if he returned to Canada within 48 hours. He offered $2 to the purser, asking for a receipt; the purser refused to give a receipt; the plaintiff did not pay the $2, and on attempting to leave the boat at Lewiston he was stopped by the purser, who asked to see his ticket, and upon getting it retained it, and he was taken back to Toronto. The purser was acting under instructions from the defendants. An Act of the United States Congress provides that a duty of $2 shall be levied on every passenger not a citizen of the United States or of the Dominion of Canada, etc., who shall come by vessel from any foreign port to any port within the United States, and that the duty shall be paid by the owner of the vessel.

Held, that if the plaintiff were within the class of persons covered by the Act, the defendants, and not he, were liable to pay the $2, and the purser had no right to demand it from the plaintiff, and make its payment a condition of his being allowed to land, nor had he any right to retain possession of the plaintiff's ticket, and by so doing broke the defendants' contract to carry the plaintiff to Lewiston. The defendants might, by a few words printed upon their ticket, have made their contract with the plaintiff subject to this payment, if the plaintiff fell within the Act, but, in the absence of such a provision, the defendants were alone liable.

W. T. J. Lee, for plaintiff. J. Bicknell, K.C., for defendants.

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

CUDDAHEE v. TOWNSHIP OF Mara.

[Oct. 17.

Ditches and Watercourses Act-Award-Reconsideration-Construction of ditch-Charge for engineer's services-Letting work-Breach of contract-Reletting.

By virtue of s. 36 of the Ditches and Watercourses Act, the township engineer, on the reconsideration of an award, may make any award which might have been made in the first instance.

In accordance with the provisions of sub-s. 2, of s. 4, of the same Act, the council by by-law fixed the charges to be made by the engineer for his services at the rate of $5 a day, and

under s. 29 the engineer certified to the clerk that he was entitled to $45 for fees and charges for his services.

Held, that his certificate established prima facie the validity of his claim for $45, and the onus was on the plaintiff, objecting to the award, to shew its incorrectness, which she had not done.

Held, also, that under sub-s. 4 of s. 28, work under an award not performed as contracted for, may be re-let.

Judgment of County Court of Ontario reversed.

Inglis Grant, for defendants, appellants. Gunn, K.C., for plaintiff.

Mulock, C.J. Ex. D., Magee, J., Clute, J.]

RE SINCLAIR AND TOWN OF OWEN SOUND.

[Oct. 25.

Municipal corporations-Local option by-law-Voting on by electors-Town divided into wards-Elector not entitled to more than one vote-Disregard of statutory formalities not affecting result-Curative provision, s. 204-Voters not legally entitled-Qualifications-Confusion from colour of ballot papers.

Sec. 355 of the Con. Mun. Act, 1903, providing that "where a municipality is divided into wards each ratepayer shall be so entitled to vote in each ward in which he has the qualification necessary to entitle him to vote on the by-law," does not apply to what is commonly known as a local option by-law, which, under s. 141 of the Liquor License Act, R.S.O. 1897, c. 245, must be "approved of by the electors of the municipality in the manner provided by the sections in that behalf of the Municipal Act"; and in voting on such a by-law no elector is entitled to more than one vote.

Objections based upon formalities not observed in the taking of the votes upon a local option by-law, not being such as are required by the statute, in express words, to be observed as a condition precedent to the right to pass the by-law, were held to come within the curative provisions of s. 204 of the Municipal Act, there being nothing to shew or suggest any intentional violation of the directions of the Act, nor any reason for believing that any disregard of the statutable formalities called for by the Act affected the result of the voting.

It was also objected that one hundred persons were allowed to vote who were not legally entitled to vote.

Held, that more than 75 of these persons might be duly qualified voters, for all that was shewn was that they did not possess the qualifications credited to them by the assessment roll, whereas they might be possessed of other sufficient qualifications, and in that event would be entitled to vote; but, even if all of them were disqualified, it was not shewn that their being allowed to vote was the result of any evil intent, and deduction even of one hundred votes from the majority (476) would not affect the result; and this objection was overruled.

Finally, it was objected that the voters were confused or misled by the colour of the ballot papers being similar to that used for voting upon another by-law at the same time and place. One was scarlet, the other pink. Each ballot had printed on its face a statement of its purport and effect.

Held, that no person of ordinary intelligence, exercising ordinary care, could mistake one for the other; and this objection was also overruled.

Order of MABEE, J., quashing the by-law, reversed.

F. E. Hodgins, K.C., and J. W. Frost, for town corporation. Haverson, K.C., and W. H. Wright, for applicant.

Province of Nova Scotia.

SUPREME COURT.

Graham, E.J.] THE KING v. REYNOLDS.

[Oct. 24.

Criminal law-Obstructing highway-Indictment insufficient. Defendant was indicted in the following terms: "For that he on the 16th day of July, in the year 1906, and ca and at diver's other days and times before that date unlawfully and injuriously did and he does yet continue to obstruct the highway the same being a public highway of the district of the municipality of East Hants by erecting fences on and across the said highway, and thereby did commit and does continue to commit a common nuisance endangering the comfort

of the public, and which common nuisance did at Tennycape aforesaid on the said 16th day of July, 1906, occasion actual injury to S. and others."

Held, that the indictment was bad as not alleging an injury to the person of anyone, and as not closing with the words "to the common nuisance, etc.," and as not describing with sufficient certainty the locality of the road and of the obstruction.

Granting that judicial notice could be taken of the fact that the municipality of East Hants was within the County of Hants the same could not be said of Tennycape where the prosecutor and others were said to have been injured.

Christie, K.C., for the Crown. Sangster, for defendant.

Longley, J.]

LANGILLE v. ERNST.

[Oct. 29.

Collision-Measure of damages-Loss of profits.

In an action claiming damages for collision with a vessel lying at anchor in port at night a part of the damages claimed was for loss of fishing during the season, the vessel having been laid up as a result of the accident for a period of twenty-six days.

Held, that in the absence of data to fix the sum, although it was probable that loss did result from such detention the damages must be confined to the sum actually proved as shewn by the bills.

J. A. McLean, K.C., and Freeman, for plaintiff. J. A. Roberts, for defendant.

Graham, E.J.]

MASSEY-HARRIS Co. v. ZWICKER.

[Nov. 2.

Bills and notes-Action against guarantor-ConsiderationAgency Termination Notice Damages - ContractRepugnant clause.

Plaintiff's sent to defendant two bicycles for sale on commission. The bicycles were sold by defendant to D. and E. and promissory notes taken in payment. The notes were sent to plaintiffs, but were returned to defendant who signed a printed form indorsed on the back of each note and returned them to