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establish a case of ravishment, and not of seduction under the statute. Apart from this element of force, there is sufficient evidence, if believed, to shew a case of seduction and justify a right to recover under the Ontario statute. But the learned Judge has taken upon himself the burden of determining whether or not upon the whole evidence rape has been proved, and, finding that it has, he dismisses the action. But this question, on the whole evidence, is one that should be passed upon by the jury; they may be satisfied as to her truthfulness concerning the paternity, and discount that part of her evidence which shews her resistance, and impute that to a strong desire to stand well with her own family and friends.

The decision on which he proceeds of Vincent v. Sprague, 3 U. C. R. 283, is qualified and explained by the later case in the same Court of Brown v. Dalby, 7 U. C. R. 160, which is more in point as to the facts of this case.

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It would be a matter for the jury always to say on the evidence of the girl (even if no other evidence was given) whether or not they accepted her whole statement in a case where they were satisfied of the paternity, and she attributed the act of connection to the force or violence (greater or less) of defendant.

So far as right of action by the parent for loss of services in such cases is concerned, I think the law is correctly laid down in Kennedy v. Shea, 110 Mass. 151, thus: "The gist of the action is the debauching of the daughter and the consequent supposed or actual loss of her services. It is immaterial to the plaintiff's claim under what special circumstances the injury was wrought, or whether it was accompanied with force or violence or not. The action will lie though trespass vi et armis might have been sustained. It would be no defence that the crime was rape and not seduction. The father in such cases may always seek his remedy in action on the case." And to the same effect, Damer v. Moore, 5 Lans. (N.Y.) 454.

The only question is whether the plaintiff can get the benefit of the presumption of service given by the statute if it turns out that the circumstance of the carnal intimacy amounted to more or less than seduction. If it is not a case of seduction under the statute, evidence of loss of service would be required: see Cole v. Hubble, 26 O. R. 279; Appleby v. Franklin, 17 Q. B. D. 93; Hill v. Wilson, 8 Black. (Md.) 123.

Here I think the question of rape or seduction could not be taken from the jury. The old cases, e.g., Ross v. Merritt, 2 U. C. R. 421, depend greatly on the rule supposed to exist that if rape was proved "the trespass merged in the felony," and in the later decisions subsequent to Brown v. Dalby, upon the theory that it was for the Court during the trial to interpose if the evidence of the girl proved that a felony had been committed. It was not a matter of defence but one depending upon public policy and the vindication of the criminal law. All that has been changed by the enactment in the Criminal Code, sec. 534, that no civil remedy for any act shall be affected or suspended by reason that it amounts to a criminal offence.

The evidence of the girl in this case shews approaches made to her on evenings before the consummation, and no complaint made. That might be the beginning of the seduction or enticement in its primary sense, which would be enough to bring the case within the statute if the man's conduct did not end in violence. That I think it is for the jury to pronounce upon: see Foreman v. Applegate, 3 Zabr. (N. J. L.) 29; Vanhorn v. Freeman, 1 Halst. 322; Brown v. Dalby, 7 U. C. R. 160; see also cases cited in Regina v. Doty, 25 O. R. 362, especially Wilkinson v. Dutton, 3 B. & S. 821.

I would vacate the judgment, so that if the parties desire further litigation the case may go down to another jury, but in such case I would advise that the venue be changed to another county remote from the scene of action.

There will be no costs of this appeal, as the law is in a somewhat unsettled state on this point.

sion.

ANGLIN, J., gave reasons in writing for the same conclu

MAGEE, J., concurred.

JUNE 29TH, 1905.

DIVISIONAL COURT.

RE DEWAR AND TOWNSHIP OF EAST WILLIAMS.

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Municipal Corporations-Procedure at Council Meetings Right to Reject By-law Approved by Electors Statute, Imperative or Directory-Right to Reconsider and Adopt Rejected By-law at Subsequent Meeting.

Appeal by John Dewar, an hotel keeper, from order of

BRITTON, J., dated 17th May, 1905, dismissing with costs, a motion to quash by-law No. 125, passed on 25th January, 1905, by the municipal corporation of the township of East Williams, in county of Middlesex, prohibiting the sale of intoxicating liquors.

GEE,

The appeal was heard by BOYD, C., ANGLIN, J., MA

J.

J. Haverson, K.C., for the appellant, contended that this by-law having been voted down at a regular meeting of the council, and the council having the right to reject it, it was not open to council to take proceedings at a subsequent special meeting to pass it.

C. A. Masten, for the township corporation.

ANGLIN, J.-I am unable to read the first sentence of sec. 373 of 3 Edw. VII. ch. 19, as imperative. It is of general application, and if, as a result of the change made in what is now sub-sec. 3 of sec. 338, by sec. 5 of ch. 37 of 49 Vict., the discretion which the municipal council formerly had, after a vote upon it by the ratepayers, of confirming or rejecting a by-law (Canada Atlantic R. W. Co. v. City of Ottawa, 12 (S. C. R. 365), is taken away, and its function. under that provision has become purely ministerial, the addition made to sec. 373, by 3 Edw. VII. ch. 18, sec. 81, is entirely supererogatory. That such an addition was made is in itself cogent proof that the legislature deemed the first sentence of the present sec. 373 non-imperative, notwithstanding the alteration in sec. 338, sub-sec. 3. The contrast. between the words, "it shall be the duty of," found in the second sentence of sec. 373, introduced by the words of antithesis "provided however," and the simple word "shall" in the earlier sentence, in my view renders it impossible to regard the earlier clause as intended to require the council to pass, without the exercise of any discretion, every by-law which is duly carried by the vote of the qualified electors." The by-law under consideration, not being one which “the council has been legally required by petition or otherwise to submit to a vote of the electors," does not come within the second clause of sec. 373, and is therefore not a by-law which "it shall be the duty of the council" to pass, but one which it may pass, if it so desire, within 6 weeks after its adoption by the electors, but not thereafter.

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But in order to succeed the applicant must also sustain his other ground of appeal. Because at a meeting of the council, at which only 4 of its 5 members were present, held on 9th January, 1905, the motion to pass this by-law was negatived by an equality of votes (sec. 274, 3 Edw. VII. ch. 19), the applicant contends that it was not competent for the council, as it did at a later meeting, attended by all 5 councillors, and held on 21st January, within 6 months after the popular vote had been taken, to reconsider its former action and to pass the by-law.

Mr. Haverson relied upon In re Wilson and Ingersoll, 25 O. R. 439. The authority of this case has been considerably shaken by comments upon it in Dwyre v. Ottawa, 25 A. R. 121, 128, and In re Kelly and Toronto Junction, 8 O. L. R. 162, 167, 3 O. W. R. 765. It is not binding upon us as a Divisional Court, and, in so far as it may be inconsistent with the right of the municipal council to reconsider its refusal to pass the by-law on the 9th January, should, in my opinion, be overruled.

Much might be said to support the view that the vote of 9th January meant nothing more than a refusal to pass the by-law presently. It is obvious that had the motion been not "that the by-law pass," but "that the by-law be rejected," the same equal vote would have negatived its rejection. The attitude of councillor William Phillips, who voted against the passing of the by-law, but immediately after the vote had been taken gave notice of his intention to demand reconsideration at a future meeting of the council, indicates that such was his understanding of the vote which he gave.

But, even if the vote of 9th January justified the declaration, which the reeve is said to have made, but which is not contained in the minutes of the council, that the by-law was lost, I agree that it was competent for the council at the special meeting of 21st January to reconsider its action, to reverse it, and, without again introducing it and submitting it to the vote of the electors, to pass the by-law. The fullest right of reconsideration is generally recognized as one of the inherent rights of every deliberative body, unless such right is denied it or is limited by the power creating such body, or is relinquished, or restricted by its own internal regulations. The Municipal Act contains no provision affecting the right of municipal councils to reconsider such a motion as that of 9th January, with which we are now dealing. Every municipal council is, by sec: 326 of the Municipal Act,

empowered to make regulations for governing its proceedings. There is before us no evidence that any such regulations have been adopted by the municipal council of the township of East Williams. It follows that the motion for reconsideration carried at the meeting of 21st January, and the motion to pass the by-law which followed, were regular and effective. The appeal fails upon this ground, and must be dismissed with costs.

BOYD, C., gave reasons in writing for the same conclusion.

MAGEE, J., also concurred.

STREET, J.

JUNE 30TH, 1905.

CHAMBERS.

RE ROACH.

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Revenue Succession Duty Appraisement of Property of Deceased Persons-Appeal to Surrogate Judge-Further Appeal to Judge of High Court-Amount in Controversy -Treasurer of Province-Status-Gift of Real Estate to Children before Death Contemplation of Death-" Disposition" of Property - Conveyance more than a Year before Death-Valuation of Shares in Company.

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Appeal by the Treasurer of the Province of Ontario from. a judgment or decision of the Judge of the Surrogate Court of Wentworth, under sec. 9. of the Succession Duties Act, R. S. O. 1897 ch. 24; and cross-appeal by the executors of the will of George Roach from the same decision.

The Surrogate Judge assessed the value of the estate of George Roach at $197,152.27, upon an appeal from the appraisement and assessment by the sheriff under sec. 7 of the Act. In the amount arrived at by the Judge he refused to include the value of the homestead property of the deceased; and he refused to alter the valuation of $10,550 placed by the sheriff on certain stock in the Hamilton Park and Suburban Co.; but he included $1,000 in respect of the household goods of the deceased, which the sheriff had not included.

By his appeal the Treasurer of Ontario sought to have the value of the homestead, stated at $7,680, added to the amount fixed by the Surrogate Judge, and to have the valuation of

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