3. That a stipulation in a lease giving the lessor the right to repossess the machine in default of payment of the rent is not contrary to good morals but is valid. The plaintiff instituted the present action in revendication of a sewing machine which was found in defendant's possession and which she alleged the defendant detained illegally, the same being her property. The defendant pleaded lo. general denial; and 20. That by lease sous seing privé dated 23 April 1887, the plaintiff leased the machine in question from the defendant at a certain | monthly rental, a cash payment being first made, it being agreed that in the event of the plaintiff not paying the rent regularly the defendant would have the right to enter plaintiff's house and take possession of the machine without legal process and without being subject thereby to any action for damages or trespass. That when defendant repossessed the machine the plaintiff was in arrears of her rent and the machine was repossessed without using force or violence. The plaintiff answered that the pretended lease was really a sale or exchange, the plaintiff having given an old machine valued at $15 in part payment, and further that she had signed the lease under misrepresentations and by the fraud of defendant's agents, believing she was signing a deed of sale. The Court in rendering judgment said that no fraud or misrepresentations had been proved; that by written lease, dated 23rd April 1887, the plaintiff had leased the machine from defendant at $3 a month, which rental she agreed to pay for a period of 15 months monthly; that the plaintiff reserved the right to buy the machine during the pending of the lease, which privilege she did not exercise; that plaintiff having had said machine only as lessee cannot be declared owner thereof; that when the defendant repossessed said machine the plaintiff was indebted for several months' rent; that the plaintiff's failing to carry out the conditions of the lease gave the defendant the right to repossess the machine, and in doing so the defendant only exercised the privilege which the parties to the lease had agreed upon and which the defendant did without force or violence; that the stipula tion in the lease giving the defendant the right to repossess the machine in question in default of payment was lawful and binding on the parties, and was not contrary to "good morals" or "public order," and dismissed the saisie revendication with costs. Authorities Cited: By Plaintiff's Attorney : C. C. L. C. Arts. 1538 and 1625; 7 Rev. Lég. 589, Beaupré & Labelle. By Defendant's Attorney: 5 L. C. R. p. 1, Richard & La Fabrique de Québec. 15 Q. L. R. p. 216, Price & Tessier. 4 Leg. News 237, Fairvew & Wheeler. 9 Supreme Ct. Rep., 399, Grange & McLennan. 22 L. R. Q. B. D. 193, Expte. Rawlings; in re Davies & Co. Anson's Law of Contracts, Lau46, 50-3, pp. 75 et seq, p. 88, No. 363 et seq; 367, partie. Mar 182 et seq. 77, art. 6; IV p. 394., & 449 ?? 3. M. Honan for plaintiff. Chapleau, Hall, Nicolls & Brown for defendant. HOUSE OF LORDS. LONDON, July 7, 1891. CROOK V. MORLEY. Coram: THE EARL OF SELBORNE, LORD Wat- tention to Suspend Payment-Bankruptcy A debtor sent the following circular to his creditors: "Being unable to meet my engagements as they fall due, I invite your attendance at the Guildhall Tavern, Gresham Street, on Wednesday next, at 3 p.m., when I will submit a statement of my position for your consideration and decision." HELD, affirming the Court of Appeal (L. R. 24 Q.B. Div. 320,) that the circular was a notice that the debtor was about to suspend payment of his debts,' and was an act of bankruptcy. Appeal dismissed. HOUSE OF LORDS. LONDON, July 20, 1891. 20. Un capias émané dans une instance avant jugement sur la demande principale, mais qui n'est rapporté qu'après que celui-ci a été rendu, peut être contesté nonobstant ce Income-tax-Charity-Exemption-5 & 6 Vict. jugement.-Goulet v. Bernard, en révision, THE COMMISSIONERS FOR SPECIAL PURPOSES OF INCOME-TAX v. PEMSEL. c. 35, s. 61. A society, established for the support of missionaries among the heathen, the maintenance and education of the children of missionaries and ministers, and for the main tenance of choir houses for female members of the society: Held by LORD WATSON, LORD HERSCHELL, LORD MACNAGHTEN, and LORD MORRIS (the LORD CHANCELLOR and LORD BRAMWELL dissenting), to be a charity, and entitled to exemption from income-tax. DECISIONS AT QUEBEC* Compagnie en liquidation—Recours— En quel nom exercé-Deniers consignés-Droit de les toucher. Jugé-lo. Le liquidateur nommé à une compagnie en déconfiture en vertu du chap. 129 S.R.C., peut exercer les recours en justice de la compagnie en son propre nom en y ajoutant: "liquidateur de (nom de la compagnie)," Sect. 29. 20. Les deniers consignés au greffe par une compagnie défenderesse avec opposition afin d'annuler à une saisie-exécution mobilière d'un jugement rendu contre elle et pour couvrir le montant de ce jugement, sont la propriété du demandeur, et la mise en liquidation de la compagnie avant qu'il les ait touchés, ne donne pas droit au liquidateur de les retirer.-Sampson v. Manicouagan Fish & Oil Co., & Gagnon interv., en révision, Casault, Routhier, Andrews, JJ., 31 jan. 1891. Action hypothecaire-Capias-Recours incident -Contestation de capias. Jugé-10. Le demandeur, dans une instance en déclaration d'hypothèque, ne peut pas faire émaner contre le défendeur, pour la même dette qu'il s'est obligé de payer, un capias fondé sur ce qu'il cède ses biens ou détériore les immeubles hypothéqués: il ne peut exercer ce recours que par une poursuite distincte et séparée. 17 Q L R. Casault, Routhier, Caron, JJ., 28 fév. 1891. Agency-Special and general powers-Interpretation of Contract. Held:-A power of attorney "to draw, accept and indorse bills of exchange, promissory notes, bills of lading, delivery orders, dock warrants, bought and sold notes, contract notes, charter parties, etc," includes the power to make and sign promissory notes, more particularly where the whole tenor of the document shows the intention to confer powers of general agency.-Quebec Bank v. Bryant et al., S.C., Andrews, J., Feb. 10, 1891. Bill of Exchange-Want of consideration. Held-A draft made by B., P. & B. through their agent D., and given to a bank in payment of another draft drawn by W. on S. & M. in favor of D., (subsquently dishonoured by S. & M.) discounted by the bank to pay a promissory note due by reason of a transaction by which B., P. & B. never profited and of which they were ignorant, is without consideration, and no action lies on it against B., P. & B.—Union Bank of Canada v. Bryant, Powis and Bryant (Limited), S.C., Andrews, J., Feb. 10, 1891. FIRE INSURANCE-EMPLOYMENT OF WATCHMAN. In Rankin v. Amazon Ins. Co., Supreme Court of California, May 26, 1891, the policy contained a provision that "it is understood and agreed, that during such time as the above mill is idle, a watchman shall be em. ployed by the insured, to be in and about the premises day and night." The Court said: The Court instructed the jury that if the assured employed a watchman to be in and about the premises day and night while the mill was idle, then the plaintiff is entitled to recover,' and submitted to them for determination the question whether plaintiffs had performed the conditions of the contract. Cases are cited by respondent in support of the action of the Court, which hold that under certain watchmen clauses it is proper to receive evidence of usage, and to submit to the jury the question whether the insured employed a watchman to look after the property in the manner in which men of ordinary care in similar departments of business manage their own affairs of like kind. But they all go off upon the proposition that the terms of the warranty are not explicit as to the time and manner of keeping a watch. Thus in the Massachusetts case (Crocker v. Insurance Co., 8 Cush. 79, the language of the clause was, 'a watchman kept on the premises; ' and in the Illinois case (Insurance Co. v. Shipman, 77 Ill. 189), ‘a watchman to be on the premises constantly during the time until September 1, 1872.' In the latter case plaintiff had employed a day watchman and a night watchman, and the only question considered was whether it was necessary for the watchman to be actually on the premises on which the insured buildings were situated. In the case before us the terms of the warranty are explicit as to the time of keeping a watch, and, on the undisputed evidence, we think the court ought to have held that the plaintiffs had not complied therewith. The mill was idle two months prior to the destruction thereof by fire, and the evidence shows that plaintiffs did not employ a watchman' to be in and about the premises day and night.' A watchman was employed, but he was not instructed to watch the premises at night, and as a matter of fact, slept every night in a building distant three hundred or four hundred feet from the mill. Mr. Minear, the superintendent, testified that McMurray, the watchman, was not instructed to watch the premises during the night; that his instructions were not special, either at day or night.' In the nature of things, it could not be expected that one man could watch the buildings day and night (only one watchman was employed), but if it be assumed that he could, no one was employed to do so. There is no ambiguity in the phrase 'day and night.' 'We do not need a dictionary, nor a law book, nor the testimony of an expert, to tell tell us that a man who is employed to watch in the daytime, and is permitted to sleep at night, is not a watchman at night.' Brooks . v. Insurance Co., 11 Mo. App. 349; Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 39. It is not a case of mere negligence. If a loss is occasioned by the mere fault or negligence of the watchman, unaffected by fraud or design on the part of the insured, it is within the protection of the policy; but to entitle the insured to recover it must appear that he has in good faith employed a watchman to perform the duties required by the terms of the warranty.. Trojan Min. Co. v. Fireman's Ins. Co., 67 Cal. 27; Wenzel v. Insurance Co., id. 438; Cowan v. Insurance Co., 78 id. 181; Waters v. Insurance Co., 11 Pet. 219. It does not appear whether the watchman was actually on duty at the time the fire occurred. If the fact be considered as material, it is sufficient to say, that defendant having shown the mill was idle, the burden of proving a compliance with the warranty rested upon the plaintiffs. Cowan v. Insurance Co., supra; Wood Ins. (2d ed.), 1136." CONTRACT IN RESTRAINT OF TRADE. The grocers in a certain town agreed with a firm which was about to open a butter store that they would not buy any butter for the term of two years. Said firm paid nothing to the grocers, nor did it buy out any established business. Held, that the contract was void for want of consideration. The history of the law upon the question of contracts in restraint of trade is an interesting subject of investigation. The books abound in cases upon the subject. Anciently all contracts were void which in any degree tended to the restraint of trade, even in a particular locality, and for a limited time. This ancient rule has been so far modified, that although agreements in general restraint of trade are invalid, because they deprive the public of the services of the citizen in the occupation or calling in which he is most useful to the community, and expose the people to the evils of monopoly, and prevent competition in trade, yet an agreement in partial restraint of trade will be upheld where the restriction does not go beyond some particular locality, is founded upon a sufficient consideration, and is limited as to time, place and person. It is accordingly every where accepted, it would be a marvellous decision if any court would hold that there was any consideration for such a contract. Iowa Sup. Ct., June 1, Chaplin v. Brown. 1891. now held that when one engaged in any business or occupation sells out his stock in trade and good-will he may make a valid contract with the purchaser binding himself not to engage in the same business in the same place for a time named, and he may be enjoined and restrained from violating his A PARALLEL TO THE CUMMING CASE. contract. This is about as far as contracts in Those who are fond of noting curious restraint of trade have been upheld by the coincidences have discovered a notable one courts of this country or in England. The with reference to the baccarat scandal. On general principles above announced will be the 10th Feburary, 1836, there was tried in found in all text-books upon contracts, and the Court of King's Bench, before the Lord find support in many adjudged cases. We Chief Justice of England, an action for dehave not thought it necessary to set out or famation, the plaintiff being a noble lord and cite the cases. They will be found collected the defendant a gentleman of position and a in 3 Am. & Eng. Enc. Law, p. 882, and 10 id., member of Crockford's, Graham's, and the p. 943; 2 Pars. Cont. p. 747. Applying these Bentinck clubs. The slander was to the effect rules to the contract under consideration, we that the noble plaintiff had cheated at cards. are to inquire first whether there is a suffi- The leading counsel for the plaintiff was the cient consideration for the promise of the Attorney-General of the day, Sir William defendants and the other parties who ex- Follet, who, in his opening speech, denouncecuted the instrument not to engage in deal-ed the accusation of cheating as a deliberate ing in butter at Storm Lake. It is very plain that there was no money paid to them as a consideration. The plaintiffs did not purchase any stock of butter which the defendants had on hand. They paid nothing for an established plant or place of doing business, nor for the good-will of any business. So far as appears, they went into the town of Storm Lake, and proposed to go into the butter business if the other persons then engaged in that business would agree to quit that line of trade for two years. In all the search we have made for authority upon this branch of the controversy we have found no warrant in any precedent for holding that this is a sufficient consideration. There are cases which hold, and the law is well settled, that where a party proposes to expend money in erecting a manufactory or other plant which may be a public benefit, subscriptions in aid of the enterprise are valid obligations. But such contracts are widely different in principle from the agreement under consideration. Suppose the plaintiffs had made a proposition to the dry goods merchants of Storm Lake that if they would all quit the business for two years, without any consider-pital, my dear; preached such sweet sermons. ation being paid to them for so doing, the plaintiffs would establish a dry goods store at that place, and the proposition had been conspiracy to ruin his client. After a good deal of unsavoury evidence the jury returned a verdict for the defendant, and what was the name of the defendant? It was Cumming. No connection at all of the gentleman who has come to grief in the baccarat case; still the occurrence of the same name in two kindred actions, with so wide a gulf of time between them, is strange enough. Mr. George Augustus Sala, in his Echoes of the Week,' writes as follows:-"I read in the report of the trial of De Ros v. Cumming that the case had excited much interest in fashionable circles,' and the Court was excessively crowded. So you see there is not much ground for the dolorous jeremiads to which we had to listen lately about the presence of ladies of fashion at crapulous trials being an unmistakable symptom of the degeneracy of the age. The ladies flocked to the House of Lords when the Duchess of Kingston was tried for bigamy, and to the Old Bailey when the Rev. Dr Dodd was tried for forgery. The last named criminal was quite a fashionable lion. "My Lord Chesterfield's tutor; chaplain to the Magdalen Hos Ah! I thought so: Guilty. Have you a little more ratafia left in your flask, dear Lady Betty ?" Bless the ladies! Why should they There is an old proverb, you well remember, that "More people know Tom Fool than Tom Fool knows." The person in authority passed me into the Court, and I was able to soothe my wounded feelings-smarting under the cost of the 57. 18.-with the sweet spectacle of the ladies on the bench.' UNITED STATES DECISIONS. not amuse themselves whenever they have a mind thereto? I had a peep at the dear creatures last Monday in the Queen's Bench Division Court, Lord Chief Justice Coleridge presiding. The baccarat case was in full swing, and a portly matron, "beautifully gowned," as the society papers have it, was under examination or cross-examination; I'm sure I don't know which. I thought the proceedings the reverse of interesting, and found the stuffy atmosphere of the Court- Telegraph Companies-Negligence-Damages. redolent as it was with the mingled odours (1) The statement printed on a telegraph of forensic wig-powder, black bombazine, hair oil, and feminine scent-bottles to be claim damages for errors or delays or for blank, that the sender agrees that he will not rather provocative of headache. Still it was non-delivery of the message, does not exona sight to see the ladies, for whose accommodaerate the company from liability for failing tion rows of stalls had been arranged on the to send the message. (2) Nor will such statevery bench to the right of the judge. How they seemed to be enjoying the trial, to be delivery, where it is clearly proved that the ment affect the company's liability for nonsure! There was only one thing lacking: it wanted music. A snatch from the gambl- message was not delivered, and there is nothing chorus in "Robert le Diable" would haveing to show any effort to deliver it. (3) A been admirably appropriate. It was quite accidentally that I got into the Court. I had been summoned as a witness in an action before Mr. Justice Pollock, in which the compiler of a remarkable Slang Dictionary sued a well-known firm of printers for damages for breach of contract in having refused to continue the printing because a small percentage out of some thousands of words were unseemly ones. I had to wait a couple of hours before I was put into the witness-box to testify as an "expert," in bad language I suppose, to the merits of the work, but the learned Q.C. for the defence protested against my being heard. The learned judge upheld the objection, and I was sent about my business. I lost 5l. 18. by the transaction, the shilling representing the cost of a lovely gardenia, which I had donned as a buttonhole" with a view to propitiate the jury. They had much better have listened to my evidence. I would have told them some moving tales of a philological kind. As it was they were unable to agree upon a verdict, and were discharged. Wandering modestly about the darksome corridors of the ill-built and evilsmelling Palace of Justice, I chanced upon a friendly person in authority who had control over the doorkeepers of the Court in which the baccarat case was going on who knew me. dealer in cattle living in Iowa wired his Union Telegraph Co. Sup. Ct., June 3, 1891. Garrett v. Western INSOLVENT NOTICES, ETC. Quebec Official Gazette, Aug. 29. Re J. Bte. Alarie.-First and final dividend pay- |