alleged claim of the plaintiff's for the said brushes (part of the goods), if any, arose prior to the time when the defendant started in business, and if the same exists at all, which the defendant does not admit, it is against the estate of the defendant's late husband and not against the defendant.

Held, that the part of the paragraph quoted was embarrassing and should be struck out, because it was not stated positively but only on information, and also because it sought to raise an immaterial issue: Odger, pp. 103, 106; Jones v. Turner (1875). W.N. 239.

Par. 5 was as follows:-"The defendant says that she never agreed to purchase mufflers from the plaintiffs for the price and sum of £129 15s. 1d. as alleged by the plaintiffs, and that she never received the same from the plaintiffs or any part thereof."

Held, 1. This was an evasive or ambiguous denial containing a "negative pregnant" and was not in compliance with Rule 290 of the King's Bench Act which requires a specific denial, if any is made, as the statement would be true even if the fact was that the defendant had purchased the goods for a penny less than £129 15s. 1d., and that this paragraph must be amended or in default struck out.

2. A paragraph of the statement of defence alleging that the goods referred to in the statement of claim, if ordered at all, were ordered under a contract set out in another paragraph setting up a counterclaim, or contract which was in no way identified with that sued upon, and alleging a breach of such other contract, which paragraph also apparently involved two defences quite different, was embarrassing, and should be amended or, in default, struck out.

Phillips, for plaintiffs. Hoskin, for defendant.

Mathers, J.]

CHRISTIE V. MCKAY.

[Oct. 30, 1905.

Parties to action-Mechanics' lien-Suit by sub-contractor against

contractor.

The plaintiff was employed by the defendant McKay, who had built a house for the defendant Collins under contract. The plaintiff filed a lien under the Mechanics' and Wage Earners' Lien Act for his unpaid claim against McKay, but before the lien was filed Collins had sold and conveyed all his interest in the land to the defendant George.

Held, that Collins should not have been made a party defen

dant in the action as the plaintiff did not seek and could not have any relief as against him. Although the plaintiff's claim would be limited to the amount due by Collins to McKay, and he would have to prove what that indebtedness was, yet that would not justify making Collins a party, as the plaintiff could prove that indebtedness at the trial or on a reference to the master like any other fact without having Collins before the Court.

Order striking out the name of Collins as a party defendant with costs.

Haney, for plaintiff. Hoskin, for Collins.

Mathers, J.]

[Nov. 20, 1905.

CAMPBELL V. IMPERIAL LOAN CO. Parties-Mortgage-Redemption-Purchasers from mortgagee. Where, after default in payment of a mortgage of lands, the mortgagee has sold some of the land under the power of sale in the mortgage, the purchasers must be made parties to the action unless the plaintiff is satisfied with judgment for redemption subject to the several agreements of sale, as the sales could not be set aside or inquired into without having the purchasers before the Court.

It would not be sufficient to make the purchasers parties in the master's office under Rule 40 of the King's Bench Act, as that rule applies only to cases where no direct relief is sought against the parties to be added: Rolph v. Upper Canada Building Co., 11 Gr. 275, and Hopper v. Harrison, 28 Gr. 22.

A. J. Andrews, and Noble, for plaintiff. Howell, K.C., and Coldwell, K.C., for defendants.

Mathers, J.]

SLOUSKI V. HOPP.

[Nov. 20, 1905.

Mistake-Rescission of contract-Election to affirm. Action for the rescission of contract to purchase lot 17 having a cottage on it, on the ground that plaintiff thought his purchase included the adjoining lot 18 being a vacant corner lot. The trial judge found that the plaintiff had entered into the contract under the mistaken belief that he was getting both the lots; but that the defendants had in no way contributed to that mistake and had not been guilty of any fraud or misrepresentation in connection with the sale, and did not know until afterwards that the plaintiff had made such mistake; also, that the purchase

money agreed on was only about the fair value of lot 17 with the cottage.

Held, 1. Following Miller v. Dahl, 9 M.R. 444, and Tamplin v. James, 15 Ch. D. 215, that the plaintiff was not entitled to have the contract rescinded.

2. The plaintiff had elected to affirm the contract by paying two monthly instalments of the purchase money and by entering into and retaining possession of the property after he had found out his mistake. Campbell v. Fleming, 1 A. & E. 40, and Dall v. Howard, 11 M.R. 577.

Bradshaw, for plaintiff. E. L. Taylor, and Laidlaw, for defendants.

Province of British Columbia.

SUPREME COURT.

Irving, J., Martin, J., Duff, J.]

[Nov. 3, 1905.

SAYWARD V. DUNSMUIR.

Mechanics' lien-Time for filing-Principal and agent—Authority of agent-General particulars-General authority conferred verbally-Subsequently limited by writing-Notice thereof to third party-Judgment in personam—Evidence. Whether material is supplied in good faith for the purpose of completing a contract, or as a pretext to revive a right to file a lien, is a question of fact for the trial judge and his decision on such fact should govern.

Where an agent is vested with general authority, and such. authority is subsequently sought to be limited by writing, notice of such subsequent limitation must be conveyed to third parties having dealings with the agent. In the absence of such notice the principal is estopped from setting up the limitation as against a third party acting bona fide.

Whether authority has been conferred on an agent is a question of fact, which may be proved by shewing that it was expressly given; or the acts of recognition by the principal may be such that the authority may be inferred.

When the relationship of debtor and creditor is established on the hearing of a claim for a Mechanics' Lien, the jurisdiction of the County Court judge to give a judgment in personam arises under Mechanics' Lien Amendment Act, 1900, c. 20, s. 23.

Per DUFF, J:-A finding of fact, based entirely upon the inference which the trial judge has drawn from the evidence before him, may be freely reviewed by the Court of Appeal. (Hood v. Eden (1905) 36 S.C.R. 476, at 483.) A principal who, knowing that an agent with a limited authority is assuming to exercise a general authority, stands by and permits third persons to alter their position on the faith of the existence in fact of the. pretended authority, cannot afterwards, against such third party, dispute its existence.

Decision of Harrison, Co., J., affirmed.

R. T. Elliott, for plaintiff. Barnard, for defendant Dunsmuir. Helmcken, K.C., for Harrison.

Hunter, C.J., Martin, J., Morrison, J.]

LASELL V. THISTLE GOLD COMPANY.

[Nov. 16, 1905.

Agreement-Corrupt or illegal consideration-Promise of benefit to employee-Fraud on company by its manager.

L. being manager and part owner of a mining company, which was in financial difficulties, and owing him some $1600 on account of salary, agreed with H. that the latter should acquire the outstanding debts of the company, obtain judgment, sell the property at sheriff's sale and organize a new company, in which H. was to have a controlling interest. L. was to refrain from taking any steps towards winding up the company, and in consideration therefor he was to be given in the new company a proportionate amount of fully paid-up and non-assessable shares to those held by him in the old company. He also agreed not to reveal this understanding to certain of the shareholders.

Held (Morrison, J., dissenting), that if there was any consideration for H.'s promise it was an illegal consideration, a fraud on the shareholders, and a breach of trust on the part of the manager. A man who occupies the position of superintendent or manager of a mine is not to facilitate the remedies of creditors but to protect the interests of the company.

Bloomfield, for plaintiff (respondent). Belyea, K.C., and Morphy, for Hannah, defendant (appellant).

Courts and Practice.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

RULES AS TO APPEALS.

The following rules of the Judicial Committee making a change in the practice in some particulars are not easy of access. We therefore reproduce them for the benefit of those concerned:

.

1. Where a respondent . . whose name has been entered on the record of the appeal by the Court admitting the appeal, fails to enter an appearance to the appeal in the registry of the Privy Council, and it appears from the transcript record in the appeal, or from a certificate of the officer of the Court transmitting the said transcript record to the registrar of the Privy Council, that the said respondent has received notice of the order admitting the appeal . . . or of the order .. giving the appellant special leave to appeal. . . and has also received notice of the despatch of the said transcript record to the registrar of the Privy Council, the appellant shall not, subject to any direction by their Lordships to the contrary, be required to take out appearance orders calling upon the said respondent to enter an appearance in the appeal, and the appeal may, subject as aforesaid, be set down for hearing ex parte as against the said respondent, at any time after the expiration of three calendar months. from the date of the lodging of the appellant's petition of appeal, in like manner as if the said appearance orders had been taken out by the appellant and the times thereby respectively limited for the said respondent to enter an appearance had expired.

Rule 2 makes a similar provision in regard to a case where a respondent to the appeal, whose name has been brought on the record of the appeal by an order of the Privy Council, fails to enter an appearance.

3. Nothing herein contained shall be deemed to affect the power of their Lordships to order the appellant in an appeal referred . . . to their Lordships to take out appearance orders, or to be excused from taking out appearance orders in any case in which their Lordships shall think fit so to order, and generally to give such directions as to the time at which, and the conditions on which an appeal so referred as aforesaid shall be set down as, in the opinion of their Lordships, the circumstances of the case may require.

4. This order shall apply to all appeals in which the petition of appeal shall be lodged after the date hereof.