pointed out by the by-laws, and all formalities appear to have been strictly complied with. These alterations have not been such as to vary in any fundamental degree the principle upon which defendants' contract rested; on the contrary, they are alterations which are sworn to have been necessary for the purpose of maintaining the benefit fund, because the original. contributions which plaintiff seeks to have maintained were found to be too small to keep it up.

In my opinion, there was power to make changes in the by-laws governing the plaintiff's contract with the Order; the changes which have been made were necessary, and were within the powers of defendants, and those changes have been properly effected according to the laws governing plaintiff and defendants, and are therefore binding on plaintiff. . . .

[Reference to Bradbury v. Wild, [1893] 1 Ch. 577; Rosenburg v. Northumberland, 22 Q. B. D. 373; Doidge v. Royal Templars, 4 O. L. R. 423, 1 O. W. R. 485; Messer v. A. O. U. W., 180 Mass. 321; Wright v. Minnesota Mutual Ins. Co., 193 U. S. 657; Dixon v. Thompson, Diprose's Cases Affecting Friendly Societies, 46.]

Action dismissed with costs.

SEPTEMBER 28TH, 1905.

DIVISIONAL COURT.

BUCKE v. CITY OF LONDON.

Assessment and Taxes Income - Exemption-Superannuated Civil Servant-Retiring Allowance.

Appeal by defendants from judgment of County Court of Carleton in favour of plaintiff, a superannuated civil servant of the Dominion, for $114 in an action to recover taxes paid the defendants upon income paid by the government as a superannuation allowance.

T. G. Meredith, K.C., for defendants.

R. V. Sinclair, Ottawa, for plaintiff.

The judgment of the Court (BOYD, C., MEREDITH, J., MAGEE, J.), was delivered by

BOYD, C.-The chief reason lying at the root of the decision in Leprohon v. City of Ottawa, 2 A. R. 522, was that

no local or provincial taxation of the salaries of Dominion officers had the effect of impairing the means and instrumentalities necessary for carrying on the functions of federal government. It is manifest that such a ground of exemption does not cover the present case, where the officer has been superannuated, and is no longer engaged in the active service of the Dominion. The diminution of his means by the imposition of the tax payable by all residents in the possession of taxable property does not in any sense affect the instrumentalities of federal government or the efficiency of the federal service; and there is no reason to extend the doctrine of the Leprohon case so as to justify the exemption of the income of a retired public officer from the annual tax levied by the municipality where he lives.

That this officer enjoys what is properly called "income" under the provisions of the Superannuation Act, R. S. C. ch. 18, sec. 8, I do not think is to be doubted. He receives the annual allowance of a fixed sum, to which he has certainly equitable claims upon the government when once it has been granted, and he has retired on faith of its due payment. This character of the allowance brings it within the rules laid down in the cases cited of Re Wicks, 17 Ch. D. 70, and Ex p. Webber, 18 Q. B. D. 111 . Stewart v. Jones,

10. L. R. 34.

The judgment cannot be supported, and this we decide. without at all invading what has been decided in the Leprohon case.

The appeal is allowed and the action dismissed. Much difference of opinion in the lower courts has existed on this subject, and for this reason we give no costs.

SEPTEMBER 28TH, 1905.

DIVISIONAL COURT.

WOOD v. ADAMS.

Contract Illegality-Stifling Prosecution Money PaidPromissory Notes-Death of Maker-Action by Administrator for Delivery up-Parties in Pari Delicto-Misrepresentations.

Appeal by defendant from the judgment of ANGLIN, J., upon the findings of a jury, relieving the plaintiff, as admin

istrator of the estate of Thomas Wood, deceased, from paying certain promissory notes amounting to $2,400, upon the ground that they were obtained by fraud and to compound a felony. A girl under 16 having been seduced by the deceased, as was alleged, these notes were given by him and money was paid in settlement of a claim by the father of the girl, the defendant, and the action was brought to recover back the money paid and for delivery up of the notes.

A B. Aylesworth, K.C., and A. M. Panton, Stratford, for defendant.

J. P. Mabee, K.C., for plaintiff.

The judgment of the Court (BOYD, C., MEREDITH, J., MAGEE, J.), was delivered by

BOYD, C.:-The findings of the jury are that there was sexual connection between the deceased and the daughter of the defendant, with her consent, she being under 16 years of age and over 14, in July, 1903, and that the father and the deceased, both believing that there had been an actionable wrong committed on the girl, agreed to settle that and all criminal proceedings in respect of the transaction for 4 promissory notes and $100 in cash. They also find that a subsequent payment of $513 was made in response to a letter written by defendant in March, 1904, in which there was misrepresentation in alleging that there was some one else at the back of it, and also that he proposed to let the law take its course. They also add, in answer to a question, that this payment was induced by defendant's threat to take criminal proceedings against Wood (deceased). Wood died in October, 1904, without any attempt to resile from the settlement, and this action, to recover all the money paid and the notes, is brought by the administrator.

The plaintiff's own case alleges and proves that the transaction was entered into to stifle a prosecution, and I cannot see that any valid separation can be made between the first payment of money and the last payment. The first payment of the money and the giving of the notes were unquestionably parts of one dealing, and the payment of the $513 was supplementary to that. The pleadings do not make a case of misrepresentation such as found by the jury. The misrepresentations alleged and the misrepresentations found are not of material character going to the root of the dealing. No pressure or undue influence has been al

leged or proved or found by the jury. That the last payment is said to have been the outcome of a threat to prosecute does not carry the legal aspect of the payment beyond the first apparently willing payment, so far as relief in the Court is concerned.

The law laid down

in Collins v. Blantern, 2 Wils. 317, is still the rule in all courts, and it stands thus: “Whoever is a party to an unlawful contract, if he hath once Faid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again:” p. 350.

And the rule is the same as to securities, e.g., promissory notes, handed over in pursuance of such a contract, as was pointed out. . in Atkinson v. Donley, 6 H. & N. at

pp. 782, 788.

There is nothing to indicate in this case that the actors were not in pari delicto; no finding and indeed no evidence to warrant any such finding. It is enough to disqualify either party from seeking the intervention of the Court if the agreement was induced by threats of a prosecution, and if fear of that prosecution be the dominating influence in leading to the giving of the money and the securities.

The whole subject is exploited . . . in Jones v. Merioneth, but the first report of that case in [1891] 2 Ch. 587, as digested in the headnote, is apt to mislead. The case was one of consolidation of common law and chancery actions, in which at law the plaintiff sought to enforce the illegal securities (notes), and the action in equity was in aid of the defence at law. But it is plainly laid down by Lindley, L.J., that a plaintiff is not entitled to relief in a court of equity on the ground of the illegality of his own conduct. In order to obtain relief in equity, he must prove not only that the action is illegal, but something more he must prove either pressure or undue influence. If all that he proves is an illegal agreement, he is not entitled to relief. If, on the other hand, he can go further and shew pressure or undue influence so as to bring himself within the doctrine applicable to transactions of that kind, then he is entitled to relief in equity, although the transaction may be illegal, upon the ground that it is meant to stifle a prosecution.

And in that case the plaintiff in the chancery action-occupying the same status as this plaintiff had his action dismissed with costs. But, on the submission of the defendants' VOL. VI. O.W.R. NO. 12-28

counsel, who said that if they could not recover on the promissory notes, they did not resist the claim of the plaintiff to have them delivered up the Court ordered them to be handed over to the makers.

This action on the merits entirely fails-the plaintiff has done no more than shew that the deceased, whom he represents, entered into an illegal bargain for the sake of stifling a criminal prosecution against himself and answering in damages for the supposed and believed actionable wrong. The deceased had during his life the benefit of what he bargained for; his death has emphatically closed the transaction, so that it cannot be deemed executory, even as to the outstanding notes. He himself could not have undone the concluded agreement, and his personal representative occupies no higher a stand. See Ex p. Caldecott, 4 Ch. D. 150, as compared with and explained by Ex p. Wolverhampton, 14 Q. B. D. 32; and see also McClatchie v. Hobson, 17 Cox C. C. 402. The case in the Supreme Court of People's Bank of Halifax v. Johnson, 20 S. C. R. 541, was one where the holder of the illegal instrument came into Court to enforce it, and failed.

The promissory notes were put in and filed at the trial, the defendant pleading that they were good and valid securities. We find the contrary to be the case-they are, on grounds of public policy, illegal and void, and they should remain on the files of the Court till further order. There will be no costs of this action or appeal.

STREET, J.

SEPTEMBER 29TH, 1905.

WEEKLY COURT.

GIBSON v. LE TEMPS PUBLISHING CO.

Solicitor- Lien for Costs-Money Paid into Court as Security for Costs-Creditor-Stop Order-Charge on Fund.

Motion by one F. V. Moffet for payment to him of certain costs taxed to him, out of moneys paid into Court by plaintiff as security for defendants' costs. The motion was resisted by the solicitors for plaintiff, who claimed a lien on the fund for their unpaid costs due them by plaintiff, who was insolvent.

After issue joined, plaintiff made an application for an order for the examination of F. V. Moffet for discovery. The