ANGLIN, J.

MAY 31ST, 1905.

CHAMBERS.

SMITH v. O'DELL.

Attachment of Debts-Denial by Garnishees of Liability to Judgment Debtor-Cross-examination on Affidavits-Refusal to Answer as to Liability to Third Person-Allegation of Identity of Third Person with Judgment Debtor.

Motion by plaintiffs to compel garnishees to answer questions upon cross-examination on affidavits made by them in answer to a motion by the plaintiffs (judgment creditors) to make absolute a garnishing summons.

R. McKay, for plaintiffs.

W. M. Douglas, K.C., for garnishees, Cummings & Co.

ANGLIN, J.:—Plaintiffs are judgment creditors of defendants for $2,507.41 and costs. By orders of the Master in Chambers all debts due to defendants, "The O'Dell Stock and Grain Company, Incorporated, or to the O'Dell Stock and Grain Company, Incorporated, carrying on business under the firm name and style of Campbell & Co.," were attached to answer plaintiffs' judgment. The several garnishees had, prior to 18th March last, carried on in Toronto what is said to be a species of agency business for the judgment debtors, whose offices are in Cincinnati, Ohio. On 18th March they were notified by the O'Dell Co. that they had transferred their business with the garnishees to Campbell & Co. The garnishees filed affidavits stating that Campbell & Co. are a well known brokerage firm in Cincinnati, and that since this alleged transfer all their (garnishees') business has been bona fide transacted with that firm, and that their connection with the O'Dell Co. has entirely ceased. The garnishees make absolute and unqualified denial of any indebtedness whatever to the judgment debtors. Upon these affidavits the deponents have been cross-examined by plaintiffs. They adhere to the above statements.

The affidavits ... upon which the attaching orders were obtained all contain this paragraph: "That I have made inquiries and am informed and believe that the judgment debtors are now carrying on business under the name of Campbell & Co., and have accounts with the above named garnishees under the name of Campbell & Co." The source of the information is not disclosed. There is no

other material which suggests that the garnishees have since 18th March in reality done business with the judgment debtors under the name of Campbell & Co., or that Campbell & Co. are identified with or in any manner represent the O'Dell Co.

In these circumstances, the garnishees during their crossexamination, upon advice of counsel, declined to answer a series of questions directed to obtain disclosure of their business relations with Campbell & Co. since 18th March. To these questions plaintiffs by the present motion seek to compel answers.

If, as alleged by plaintiffs, Campbell & Co. be in reality merely a name under which the judgment debtors are still transacting business, or if, though real and distinct persons, Campbell & Co. represent the O'Dell Co. in the business carried on with the garnishees, the relevancy and the materiality of these questions is conceded. But counsel for the garnishees maintains that, if the real position be as alleged by the garnishees, the inquiry upon which plaintiffs seek to enter is both irrelevant and impertinent.

Should plaintiffs now be permitted to compel disclosure by the garnishees of matters in which, if plaintiffs fail to establish the connection which they allege between the O'Dell Co. and Campbell & Co., plaintiffs have no interest whatever?

If these issues were presented for trial in the usual manner, the presiding Judge might very properly require that plaintiffs should at least make a prima facie case shewing their interest in the relation between the garnishees and Campbell & Co. before permitting them to probe into and investigate such relations. I think a a similar discretion should be exercised by me in dealing with this motion. If plaintiffs press these proceedings further, in all probability an issue will be directed under Rule 916, upon the trial of which the presiding Judge will control the order of evidence and course of proof.

Counsel for plaintiffs urges that if the garnishees be now sustained in their refusal to answer as to their accounts with Campbell & Co., his clients may be put to much expense in attempting to establish the connection of Campbell & Co. with the judgment debtors, which may prove useless, if, when that connection has been made out, it should be shewn that the garnishees were not, at the dates of the several attaching

orders, indebted to Compbell & Co. I quite appreciate the force of this argument, but I cannot, on account of any inconvenience or expense to which my refusal of it may put plaintiffs, grant them the aid of the Court to compel the garnishees to divulge matters into which the material before me fails to disclose any right on the part of plaintiffs to inquire.

Motion dismissed with costs.

TEETZEL, J.

MAY 31ST, 1905.

WEEKLY COURT.

RE ROBERTS AND BROOKS.

Will-Executors-Implied Power to Sell Land-Devolution of Estates Act-Vendor and Purchaser.

A petition by the vendors under the Vendors and Purchasers Act for determination of the question whether the Executor and executrix under the will of Elizabeth Roberts, who died on 13th February, 1905, could make title to land devolving under the will, without the consent of the official guardian, under sec. 8 of the Devolution of Estates Act, infants being interested in the proceeds of a sale.

W. J. Tremeear, for the vendors.

D. D. Grierson, for the purchaser.

M. C. Cameron, for the official guardian.

TEETZEL, J.:-Testatrix in the first part of her will gives her whole estate, real and personal, subject to the payment of debts, to her step-son and his wife and their three children, "to be divided and shared equally between them." She then proceeds as follows: "It is my will that my personal effects that have not been disposed of during my lifetime shall be kept in the family, except any furniture that would be cumbersome to move had better be sold, but the real estate, if I have not disposed of it, shall be sold and equally divided, and I appoint my stepson Harry Roberts and his daughter Annie Roberts to execute this my will."

The executrix and executor having agreed to sell the residence property for $1,000, the question is raised by the purchaser whether they have power to do so without the consent cf the official guardian.

In my opinion, the right of the executors to sell is not affected by the Devolution of Estates Act, because I think the real estate has by the will devolved upon the executors quite independently of sec. 4 of that Act.

I think the intention of the testatrix, to be gathered from the whole will, is that the sale and division of the estate shall be carried out by her executor and executrix; and, notwithstanding the gift of the estate in the first part of the will directly to the beneficiaries, the authority in the latter part of the will to the executor and executrix to execute the will, must mean to sell the real estate and divide the proceeds equally. If she had not expressly authorized them to do so, they would have been authorized under sec. 21 of the Trustees Act to make the sale.

Where the authority to sell real estate is given to executors, the fee simple is impliedly vested in them for that purpose. See Re Davies and Jones, 24 Ch. D. 190; Anthony v. Rees, 2 Cr. & J. 83;

of Liverpool, L. R. 10 Q. B. 81;
6 C. B. 201;
1155.

.

Stevenson v. Mayor

Plenty v. West,

Jarman on Wills, 5th ed., pp. 1154

The word "devolve" used in sec. 8 of the Devolution of Estates Act was held by Ferguson, J., in In re Booth's Trusts, 16 O. R. 429, to be used in the sense merely of "passing," and that the meaning of the word is, that, where infants are concerned, and real estate would not but for the preceding sections come to the executors or administrators by a devise, gift, or conveyance, or otherwise, no sale can be validly made without the written consent of the official guardian.

In this case I think that the real estate has come to the executor and executrix by virtue of the direction in the will that the same shall be sold and divided and the express authority given to them to execute the directions of the testatrix.

In In re Koch and Wideman, 25 O. R. 394, it was held that the Devolution of Estates Act and amendments do not interfere with an express power of sale given by a will to executors and extending beyond the periods of vesting prescribed by these Acts. See also Re Fletcher's Es

tate, 26 O. R. 499 also Mercer v. Neff, 29 O. R. 680.

The order will therefore be that the vendors have authority to sell the lands independently of the Devolution of Estates Act. No order as to costs.

See also Armour on Devolution, pp. 114, 115, and 116.

BRITTON, J.

TRIAL.

JUNE 1ST, 1905.

NICKLE v. KINGSTON AND PEMBROKE R. W. CO.

Railway Company-Loan of Money to-Bill of ExchangeIrregular Acceptance Ratification - Liability - Officer Ratification-Liability of Company Accepting Bill-Personal Liability-Statute of Limitations.

Action to recover the amount of a bill of exchange and interest.

J. L. Whiting, K.C., for plaintiffs.

W. R. Riddell, K.C., and R. V. Rogers, K.C., for defendɛnt company.

G. M. Macdonnell, K.C., for defendant Nash.

BRITTON, J.:-On 8th May, 1893, plaintiff Ellen Nickle was asked by her brother, defendant B. W. Folger, to lend money to defendants the Kingston and Pembroke Railway Company. Mr. Folger was then the superintendent of that company. Mrs. Nickle agreed to lend, and gave her cheque for $4,600 to Folger, and on the following day received a draft dated 9th May, 1893, drawn by B. W. Folger upon defendant company (T. W. Nash, secretary and treasurer), for $4,600 with interest payable 4 months after date, accepted by Nash as secretary and treasurer. The draft was made payable to the order of B. W. Folger, was indorsed by him. in blank, and handed by him to plaintiff Ellen Nickle. On 12th September, 1893, the draft was renewed for 4 months. for same amount, with interest; on 15th January, 1894, 18th May, 1894, and 21st September, 1894, there were renewals, each at 4 months, for full amount without interest. On 11th January, 1895, a similar draft was made and accepted payable on demand. The interest was paid at or about the time of each renewal. This demand draft was treated by plaintiffs and defendants as a security upon which interest should be paid quarterly, and interest was so paid to 27th October, 1898. Afterwards interest was paid to 27th October, 1899, and finally to 27th October, 1900. The interest was in fact paid upon application to and by the instructions. of defendant Folger, who during these years was apparently the only person to whom application could be made as to any important matter connected with this railway company. . . . Plaintiff Hugh C. Nickle is the son of plaintiff Ellen Nickle.