CORPORATION OF THE CITY OF SHERBROOKE V. Appeal-Validity of by-law-Supreme and Ex- judgment of the Superior Court in Review Quebec.] The plaintiff sued the defendants to retwo business taxes, one of $100 as compouncover the sum of $150 being the amount of ders and the other of $50 as a wholesale dealer under the authority of a municipal byOn appeal to the Supreme Court; Held, law. The defendants pleaded that the by-law that the order of the Court of Queen's Bench was not a final judgment, and that the judg-council, and also that the statute 47 Vic. ch. was illegal and ultra vires of the municipal ment does not come within the exceptions 84 P. Q. was ultra vires of the legislature of allowing an appeal in certain cases of new trials, and therefore the case is not appealable. held that both the statute and the by-law the Province of Quebec. The Superior Court Appeal quashed without costs. were intra vires, and condemned the defenHatton, Q. C., & McCarthy, Q. C., for dant to pay the amount claimed. On an appellants. appeal to the court of Queen's Bench by the Greenshields, Q. C., & Abbott, Q. C., for defendant (present respondent,) the Court respondents. Quebec] BLACHFORD V. McBEAN. Appeal-Title to land in controversy-Supreme Held, that as the case was originally insti. tuted in the Superior Court and that upon the face of the proceedings the right to the possession and ownership of an immovable property is involved, an appeal lies. Supreme and Exchequer Courts Act, sec. 29 (b) and secs. 28 and 24. Strong J., dissenting. confirmed the judgment of the Superior Court as regards the validity of the statute, but set aside the tax of $100 as not being authorized. The plaintiff thereupon appealed to the Supreme Court, complaining of that part of the judgment which declares the business tax of $100 invalid. There was no cross appeal. On motion to quash for want of jurisdiction; Held, that sec. 24 (g) of the Supreme & Exchequer Courts Act was not applicable, and that as neither parties on the present appeal attacked the constitutionality of the statute 47 Vic. ch. 84 (P.Q.), the case was not appealable under sec. 29 (a) of the Supreme and Exchequer Courts Act. Strong, J., dissenting. Appeal quashed with costs. Brown, Q. C., for appellant. Ontario.] PEOPLES LOAN Co. v. GRANT. Mortgage-Rate of interest—“ Until principal is fully paid and satisfied"—Effect of provision-Rate after principal is due. G. mortgaged certain real estate to the C. Motion to quash dismissed with costs. L. Ins. Co. giving certain policies of insur Archibald, Q. C., for appellant. ance on his life as collateral security. He afterwards made a declaration under the Ontario statute that the said policies should be payable to his wife and in case of her dying before him to his children. After this declaration was made he mortgaged the same property to the P. L. Co. giving the same policies as collateral, and the first mortgage was assigned to the P. L. Co, and was, in fact, paid off with the proceeds of the second loan. The mortgage to the P. L. Co. contained a provision that it was to be void on payment at a certain time of the principal and interest thereon at the rate of ten per cent per annum "until fully paid and satisfied." In an action to have the assignment of the policies cancelled Held, (Dec. 10, 1890) that the P. L. Co. could only hold the policies as collateral security for the mortgage to the C.L. Ins. Co., and not as security for their own mortgage. Held further, that the mortgage to the P. L. Co. only carried interest at the rate of ten per cent until the principal was payable, and after that date the statutory rate governed. Rykert v. St. John (10 Can. S. C. R. 278) followed. Appeal dismissed with costs. Delamere, Q. C., for appellants. North-West Territories.] MARTIN V. MOORE. ment-Practice. the judge refusing it was affirmed by the full court. The defendant then sought to appeal to the Supreme Court of Canada. Held, (March 11, 1891) Gwynne, J., hesitante, that the judgment sought to be appealed from was not a final judgment in an action, suit, cause, matter or other judicial proceeding within the meaning of the Supreme Court Act, and the Court had no jurisdiction to hear the appeal. Appeal quashed with costs. Ontario.] HOBBS V. ONTARIO LOAN AND DEBENTURE Co. ancy-Rent reserved-Tenancy at will- A mortgage of real estate provided that the money secured thereby, $20,000 with interest at seven per cent., should be paid as follows:-$500 on Dec. 1, 1883, and on the first days of June and December in each of the years 1884, 1885, 1886, 1887, and $15,500 on June 1st, 1888. The mortgage contained the following clause : "And the mortgagees lease to the mortgagor the said lands from the date hereof until the date herein provided for the last payment of any of the moneys hereby secured, undisturbed by the mortgagees or their assigns, he, the mortgagor, paying therefor in every year during the said term, on each and every of the days in the above proviso for redemption appointed for payment of the moneys hereby secured, such rent or sum as equals in amount the amount payable on such days respectively according to the said proviso, without any deduction." A writ of summons, in the ordinary form of writs for service within the jurisdiction, was issued out of the division for the District of Alberta of the Supreme Court of the North West Territories and a judge's order was afterwards obtained for leave to serve it out of the jurisdiction. The writ having been served in England, the defendant moved before a judge of the Court below to set aside The goods of the mortgagor having been the service, alleging that the cause of action seized under execution the mortgagees claimarose in England and he was, therefore, noted payment as landlord under the said clause subject to the jurisdiction of the courts in the Territories; also, assuming the Court had jurisdiction, that the writ was defective as the practice required that a judge's order should have been obtained before it issued. The motion was refused, and the decision of of a year's rent out of the proceeds of the sale of the goods under the Statute of Anne. Held, (Dec. 10, 1890) that it is competent for mortgagee and mortgagor to create by agreement the relation of landlord and tenant between them. ARCHIBALD V. HUBLEY. Bill of Sale-Affidavit of bona fides-Form of jurat-Omission of date and words “before me"-Writ of execution-Signature of prothonotary. Held, per Strong, Gwynne, and Patterson, Nova Scotia] JJ., affirming the decision of the Court of Appeal (16 Ont. App. R. 255) Ritchie, C.J., and Taschereau, J., contra, that such relationship did not exist under the re-demise clause of the mortgage in this case,the amount purporting to be reserved as rent under such clause being so largely in excess of the rental value of the premises as to indicate a want of intention in the parties to create such relationship. The Nova Scotia Bills of Sale Act, R.S. N.S. 5th Ser., c. 92, s. 4, provides that a bill of sale or chattel mortgage shall be void unless accompanied by an affidavit that the same was made in good faith for a debt due to the grantee, etc. By sec. 10 the express "bill of Held, per Strong, J., that no tenancy at will was created by agreement, but such a ten-sale" does not include an assignment for the ancy could be held to exist by operation of general benefit of creditors. One E. assigned the statute of frauds, the alleged lease being his property to A. in trust to sell the same for a period of more than three years and not and apply the proceeds to the payment of signed by mortgagee. The Imperial Statute, debts due certain named creditors of the as8-9 Vic. c. 106, requiring leases for over three signor. The affidavit accompanying this inyears to be made by deed (of which the strument omitted from the jurat the date and Ontario Act is a re-enactment) does not words " before me." repeal the statute of frauds, but merely substitutes a deed for the writing required by the latter statute. Per Gwynne and Patterson, JJ., that no tenancy at will, by agreement or otherwise, was created by the re-demise clause of the mortgage. Held, (Nov. 10, 1890) reversing the judgment of the Supreme Court of Nova Scotia, Gwynne, J., dissenting, that this instrument was not an assignment for the general benefit of creditors and was a bill of sale within the above section of the act. Held, also, that the affidavit required by said section must have all the requirements Therefore the omission of the date and words of affidavits used in judicial proceedings. "before me" from the jurat made the affidavit void and the defect could not be cured by Held, per Strong, J., Gwynne and Patterson, JJ., contra, that the demise clause might be construed as containing an agreement for a lease capable of being enforced in equity and, since the Judicature Act, to be treated by common law courts exercising he func-parol evidence in proceedings by an exetions of courts of equity as a lease. Per Gwynne, J., that the clause could only be regarded as an agreement for the creation of a tenancy in the future if the parties so desired, such agreement to be carried out by the execution of the mortgage by the mortgagees. Held, per Strong, Gwynne and Patterson, JJ., that the demise clause could only be construed as purporting to create a tenancy for the entire term of five years, and it could not be held a good lease for four and a half years at a rent reserved of $1000 a year and void for the remaining half year. Appeal dismissed with costs. Gibbons for appellants. cution creditor of the assignor to have the mortgaged goods taken to satisfy his execution. Held, per Gwynne, J., that it is only when an affidavit is necessary to give the Court jurisdiction to deal with a matter before it that defects of form will invalidate it. In a case like this the affidavit is only an incident in the proceedings and the defect could be cured by evidence. Held also, per Gwynne, J., that an assignment of property absolute in its form and upon trust to sell the property assigned is not affected by said section four of the act which deals only with bills of sale by way of chattel mortgage. The goods assigned by E. were seized by the sheriff under an execution and in an action against the sheriff the execution pro duced was not signed by the Prothonotary of the court out of which it was issued. Held, that it is the seal of the court which gives validity to such writs and not the sig. nature of the officer, and the want of such signature did not affect the validity of the execution. Appeal allowed with costs. W. B. Ross for the appellant. Held, 1st, Per Ritchie, C. J., and Gwynne, J., reversing the judgment of the Exchequer Court, that the report of F. S., assuming him to have been the Chief Engineer to give the final certificate under the contract, cannot be construed to be a certificate of the Chief Engineer which does or can entitle the contractor to recover any sum as remaining due and payable to him under the terms of his contract, nor can any legal claim whatever against the Government be founded thereon. 2nd. Per Ritchie, C. J. That the contrac THE QUEEN, Appellant & ROBERT MCGREEVY, tor was not entitled to be paid anything until Respondent. On appeal from the Exchequer Court of Canada. Present Sir W. J. Ritchie, C. J., and Strong, Taschereau, Gwynne and Patterson, JJ. the final certificate of the Chief Engineer was approved of by the Commissioners or Minister of Railways and Canals. 31 Vic., ch. 13, sec. 18, and 37 Vic., ch. 15, Jones v. Queen, 7 Can. S. C. R. 57. ers, the suppliant is not entitled to recover on F. S.'s certificate. Per Strong and Taschereau, JJ., (dissenting) that F. S. was the Chief Engineer and as such had power under the 11th clause of the contract to deal with the suppliant's claim, and that his report was "a final and closing certificate" entitling the respondent to the amount found by the Exchequer Court on the case submitted. 3rd. Per Patterson, J., that although F. S. Claim for extra and additional work due under was duly appointed Chief Engineer of the Intercolonial Railway contract-31 Vic. c. Intercolonial Railway, and that his report 13, secs. 16, 17, 18—and 37 Vic. ch. 15-final and closing certificate to which he was on suppliant's claim may be held to be the Change of Chief Engineer before final cert-entitled under the 11th clause of the conificate given-Reference of suppliant's claim to said Engineer-Report or certifi tract, yet as it is provided by the 4th clause cate of Chief Engineer recommending paysed work is to be decided by the Commissionof the contract that any allowance for increament of a certain sum-Effect of-Approval by Commissioners or Minister necessary. Upon a claim made by the respondent for the sum of $120,371 as being due to him for extra work etc. beyond what was included in his contract for building a section of the Intercolonial Railway, and which sum he alleged had been certified by F. S. as the Chief Engineer of the Intercolonial Railway in his final and closing certificate given in accordance with clause 11 of respondent's contract, a statement of admission was agreed upon by both parties and the following question was submitted to the Exchequer Court: "Is the suppliant entitled to recover on the report or certificate of F. S.? The report was never approved of by the Intercolonial Railway Commissioners, or by the Minister of Railways and Canals, and 31 Vic. ch. 13, sec. 18, enacts: "No money shall be paid to any contractor until the Chief Engineer shall have certified that the work for, or on account of which the same shall be claimed has been fully executed, nor until such certificate has been approved by the Commissioners." Per Strong, Taschereau and Patterson, JJ. That the Office of Commissioners having been abolished by 37 Vic., ch. 15, and their duties and powers transferred generally to the Minister of Railways and Canals, the approval of the certificate was not a condition precedent to entitle the suppliant to claim tificate of the Chief Engineer. the amount awarded to him by the final cer Appeal allowed with costs. Robinson., Q. C., and Hogg, Q. C, for appellant. Girouard, Q. C., and Ferguson, Q. C., for respondent. Ontario.] MOLSONS BANK V. HALTER. W., a trader, was one of the executors of an estate and had used the estate funds in his private business. Having become insolvent, he gave a second mortgage on certain real estate to his co-executor as security for the money so appropriated. In a suit by a creditor to set aside the mortgage as void under R.S.O. (1887) c. 124, s. 2, Held, affirming the judgment of the Court of Appeal for Ontario (16 Ont. App. R. 323), Patterson, J., dissenting, that the mortgage was not void under the said statute, the coexecutor not being a creditor of W. within the meaning of the said section. claim, is not a mere act connected with the administration of her property which a wife separate as to property may do alone without the authorization of her husband, but is in reality a donation, which is null and void unless the husband becomes a party, or gives his consent in writing. (Art. 177, C.C.) Hart & Joseph, Cross, Baby, Bossé, Doherty, JJ., Nov. 25, 1890. Promissory note-Given as collateral security- Held:-1. Where the appellant gave his promissory note to respondent as collateral security for a hypothecary debt due by his (appellant's) father, and on the same piece of paper wrote a letter stating that the note was so given as collateral, upon condition that respondent should delay proceedings on the mortgage until the note was due,—that the respondent was entitled to sue the appellant on the note when due, without putting the principal debtor en demeure; and the appellant, not having demanded that the principal debtor be discussed, or proved that the mort 2. That the words "or which has such effect" in the section referred to, only apply to the clause immediately preceding, that is, to the case of giving one or more of the creditors of the transferor a preference over others, and do not apply to the case of defeating, delay-gage was paid, was rightly held liable for the ing or prejudicing creditors. 3. That the preference mentioned in the statute as avoiding a conveyance must be a voluntary preference, and would not include a conveyance obtained by pressure on the transferor. amount of such note. 2. The severance of the note from the letter written above it, was not a mutilation that could affect the validity of the instrument.-Palliser & Landsay, Tessier, Cross, Baby, Bossé, Doherty, JJ., June 19, 1890. Donation inter vivos-Changing nature of deed of gift by subsequent deed-Giving in payment-Registration-Tender. Held, per Strong, J., that W. by misappropriating the funds of the estate of which he was executor was guilty of a criminal offence, and the fear of penal consequence was suffi cient pressure on him to take from the trans- Held-1. The parties to a deed of gift inter action the character of a voluntary convey-vivos may, by a later deed, change its nature from an apparently gratuitous donation, to a deed of giving in payment. ance. Appeal dismissed with costs. Bowlby, Q.C., for the appellants. 2. The forfeiture (under Art. 806, C. C.) reAytoun-Finlay and Duvernet for the resulting from neglect to register, applies only spondents. to gratuitous and remuneratory donations. 3. The giving of a thing in payment being equivalent to a sale of it (Art. 1592, C. C.), and the necessity of registering a deed of Married woman separate as to property-Act of sale existing only as to third parties acquir COURT OF QUEEN'S BENCH- MONT REAL.* administration-Art. 177, C. C. Held:-That the making of a reduction in the rate of interest payable on a hypothecary * To appear in Montreal Law Reports, 6 Q. B. ing the thing and hypothecary creditors, absence of registration of the original deed could not be invoked by the testamentary executors of the person giving, against the deed |