out license in violation of 57 & 58 Vict. c. 51(D), s. 3, and 61 Vict. c. 39 (D), s. 3, and was fined $20 and $10.65 costs, and was adjudged in default of payment forthwith to be imprisoned in the common jail for 30 days. His discharge was applied for on the grounds; (1) That before a warrant for his imprisonment could issue and бe executed a warrant of distress must be issued and returned, and (2) That the sum placed in the warrant for costs and charges of conveying defendant to goal, $25, was excessive. Held, 1. It was competent for the justice to issue the warrant for imprisonment in the first instance without resorting to distress and that it was not imperative in construing the statute (c. 39, s. 3, sub-s. 18), to read the word "may" as "must. 2. If excessive fees were charged the defendant's remedy was by action and he should not be discharged from goal on that ground. A. A. Mackay, for the prisoner. Full Court.] BENT v. MORIN. [Nov. 16. Absconding debtor-Affidavit for arrest-Form. An affidavit for order for arrest which contains allegations setting out a good cause of action in respect to the amount for which the defendant is held to bail is sufficient even though it may be somewhat unusual in form. Mellish, K.C., for appellant. O'Connor, for respondent. Province of New Brunswick. SUPREME COURT. Full Court.] [Nov. 16. THE KING V. KAY. Canada Temperance Act-Fine exceeding $50.00 for first offence. This was an application to quash a conviction under the above Act on the ground that the fine was excessive, and beyond the power of the magistrate. The appellant had been fined $200 for a first offence, under the C.T.A., which enacts that the fine for the first offence shall not be less than $50.00. Held, that the magistrate had power to fine $200, and he acted within his rights, as long as the amount was not less than $50.00. There might be a case (e.g., where the fine was, say, $1,000), which the Court should interfere as being exorbitant, but this is not such a case and the application was refused. Trueman, K.C., for appellants. Chandler, K.C., contra. Province of Manitoba. COURT OF APPEAL Full Court.] [Oct. 22. CARRUTHERS v. CANADIAN PACIFIC Ry. Co. Railway-Obligation to fence for the protection of others than the lawful occupants of adjoining lands. The plaintiff had a verdict for the killing, by a train of the defendants, of four horses, which, without any negligence on his part, escaped from his enclosed pasture into a highway, thence into the field of a neighbour adjoining the defendants' right of way, and thence through an opening in the fence along the right of way on to the railway track. The defendants had neglected for two years to place a gate at such opening. Held, PHIPPEN, J.A., dissenting, that, under ss. 199 and 237 of the Railway Act, 1903, the obligation of a railway company to fence their right of way is a duty which it owes to the public at large, and is not imposed upon it solely for the benefit of the occupants of the lands adjoining the right of way, and that the plaintiff was entitled to recover. Fenson v. C.P.R., 8 O.L.R. 688, and Bacon v. G.T.R., 7 O.W.R. 753, followed. Ferris v. C.P. Ry. Co., 9. M.R. 510, not followed. O'Connor and Barrett, for plaintiff. Aikins, K.C., for defendants. Full Court.] [Oct. 22. COSENTINO V. DOMINION EXPRESS CO. Bailment Negligence-Involuntary bailee. Judgment of Richards, J., noted ante, p. 364, reversed, Perdue, J., dissenting. Per HOWELL, C.J.:-Defendants did not know that the envelope containing the money was the property of another. They thought it was their own property and treated it exactly in the same way as they treated their own registered letters, and it disappeared. The defendants owed no duty to the plaintiff to take care of the letter. Nor can the plaintiff complain of any negligence of the defendants. They thought the letter was theirs, and they had a right to do with their own as they chose. Per PHIPPEN, J.:-The loss of the money was the consequence of the plaintiff's taking and using one of the company's envelopes which he had no right to do. The contingency of persons causing large sums of money to come into its clerks' possession on other than the company's business was not one which the company was bound to contemplate when selecting its clerks and determining their fitness for the position they were appointed to fill. Hoskin, for plaintiff. Robson and Coyne, for defendants. BANK OF OTTAWA v. NEWTON. Full Court.] [Oct. 22. Insolvency-Assignments Act, R.S.M. 1902, c. 8, s. 29-Rights of second creditor after valuation of his security. Judgment of RICHARDS, J., noted ante, p. 401, reversed on appeal. Held, that, when the assignee has failed within a reasonable time to exercise his right of election to take over the securities at ten per cent. above the valuation, the creditor has the right to collect what he can from the securities, and rank for dividends as a creditor for the full amount of the difference between his claim and the valuation, although he may have collected from the securities more than the amount of his valuation, provided he shall not receive in all more than 100 cents in the dillar; also, that the creditor cannot be called upon to re-value his securities. Robson, for plaintiff. Hoskin, for defendant. Full Court.] MCDOUGALL v. GAGNON. [Oct. 22. Registered judgment-Judgments Act-Devolution of Estates Act-Interest of heir in lands of intestate before letters of administration granted-Parties to action. Judgment of RICHARDS, J., noted, ante, p. 363, reversed. Under s. 21 of "The Devolution of Estates Act," R.S.M. 1902, c. 48, land of a deceased intestate vests in the administrator who has power to sell it for payment of debts. If sold, any surplus goes to the next of kin as if it were personal estate. But before an administrator is appointed it is impossible to say whether the next of kin will ever have any interest in the land as land, so that the next of kin has no interest in the land which can be bound by the registration of a certificate of judgment under s. 3 of "The Judgments Act," R.S.M. 1902, c. 91. In the present case, the defendant's interest sought to be sold was only that of sole lien to his wife-who had died childless and intestate -and the wife's interest in the land in question was as an heir of her father, the owner of the land, who had died intestate. Letters of administration of the father's estate had been granted to the widow, but she had neither sold the land nor conveyed any interest in it to the defendant's wife. No administration of the wife's estate had been appointed. There was, therefore, a double uncertainty whether the defendant would ever have any interest in the land. Held, also, that an administrator of the estate of the defendant's wife was a necessary party to any proceedings affecting her estate or the defendant's interest in it. Re Sheppard, 43 Ch. D. 131, followed. Semble, even if the estate of the defendant's wife had been represented in the action, it would have to be held that the defendant, while the land remained vested in the administrator, had no interest in it which would be bound by the judgment: Thomas v. Cross, 2 Dr. & Sm. 423. Sec. 3 of "The Judgments Act," with the interpretation of the word "land" given in sub-s. (f) of s. 2, refers to a present existing interest in land, and does not cover an interest which may come to him as real estate or may come to him as money according to the actions of the administrator and the unknown exigencies of the administration. The defendant may have an interest in his wife's estate which the plaintiff might reach by proper proceedings, such as the appointment of a receiver, but he has no interest which can now be sold as land under a judgment and conveyed as land by the Court to a pur chaser. Wilson and Hartley, for plaintiff. Hudson and Marlatt, for defendant. KING'S BENCH. Mathers, J.] VANDERLIP v. PETERSON. [Oct. 16. Contract-Acceptance of offer-Option to purchase land— Specific performance. Defendant gave plaintiff an option to purchase land. The day before the option was to expire, plaintiff tendered defendant his wife's marked cheque for a deposit of $100 on account of the purchase money and desired him to sign a document evidencing a sale of the land to the plaintiff's wife on terms named and acknowledging the receipt of the $100. Defendant objected to sign the document on the ground that it shewed a sale to the plaintiff's wife and not to himself, but said he would retain the cheque in the meantime until he could consult his solicitor. Plaintiff then told him to make the receipt satisfactory, and that all he wanted was a receipt for the $100. The defendant did not see his solicitor for a couple of days, but after having seen him he decided not to sell and sent back the cheque to the plaintiff. Several days after the option had expired the plaintiff tendered the full amount of the cash payment, $1,000, and, upon the defendant refusing to accept it, brought this action for specific performance. Held, that the plaintiff had not, within the time limited, notified the defendant of his acceptance of the latter's offer and could not, therefore, succeed in the action. Instead of accepting the offer himself, he tendered his wife as the purchaser and was not bound to accept as purchaser any person other than the plaintiff, who did not accept the option on his own behalf until after the expiration of the time limited. Haggart and Whitla, for plaintiff. Monkman and Morley, for defendant. Dubuc, C.J.] [Oct. 22. UNION BANK OF CANADA v. DOMINION BANK. Bank cheque-Forgery-Indorsement of cheque-Liability as between banks for loss of money paid on forged cheque. The Provincial Treasurer having mailed a cheque on the |