according to the Doyle rule, on the said limits, ties, shingles, and posts excluded, except cedar logs 14 inches and over at the butt." It was further provided in the settlement that this guarantee was to be null and void" at the expiration of 2 months from the date of the settlement unless in the meantime the now plaintiff should take action "to enforce in respect of the guarantee."

No formal guarantee outside of the agreement for settlement was in fact given, but both parties have practically treated the matter as if one had been given, and on 12th January, 1905, plaintiff brought this action "to enforce in respect of the guarantee."

Plaintiff undertook to establish a breach of defendant's guarantee, and he accepted the burden of proving that there was not on 3rd December, 1903, the quantity of timber, namely, 18,000,000 feet, on the limits, within the meaning of the agreement.

It was manifestly contemplated by both parties that the quantity of timber should be determined by estimation. As the greater part of the timber is standing, the exact quantity cannot be determined. Both parties accept the issue-plaintiff asserting that there is not, by careful estimation by disinterested and competent persons, the quantity of timber mentioned, and defendant asserting that there is by estimation made in some way at least the quantity.

There is, therefore, nothing before me but the question of fact, and I am asked to determine as best I can, upon the evidence of persons who are widely apart in their estimates.

My construction of the agreement is that "merchantable" timber is meant, and I think the down or fallen timber, so long as it is sound and merchantable, may be included to make up the 18,000,000 feet. Hollow cedar, if 14 inches or over at the butt, and if fit to make shingles or lumber, should be estimated, but only the quantity, so nearly as it can be done, of the actual merchantable timber in the tree. Such trees should not be estimated as if solid and sound all the way from trunk to top. There is a great difficulty in this, because, of the standing cedar in that part of the country, very many trees appearing to be sound are hollow for quite a distance from the butt up.

On the whole the weight of evidence is in favour of defendant. Apart from any question of mere doubt to which defendant would be entitled, I think plaintiff has failed to establish that there was not, on these limits, on 3rd December, 1903, 18,000,000 of feet of timber of the description named.

I think plaintiff should be relieved of a part of the costs. Defendant's costs against plaintiff should be limited to $100 over and above the costs of the day ordered by Meredith, C.J., on 26th September, 1905, as indorsed on the record.

Action dismissed with costs as above.

Judgment for declaration that the timber limits mentioned in schedule A to the agreement between the parties of 3rd December, 1903, and as set out in plaintiff's statement of claim herein, did on that day contain at least 18,000,000 of feet of timber according to the Doyle rule, ties, shingles, and posts excluded, except cedar logs 14 inches and over at the butt.

BOYD, C.

DECEMBER 1ST, 1905.

TRIAL.

UNITED COUNTIES OF NORTHUMBERLAND AND DURHAM v. TOWNSHIPS OF HAMILTON AND HALDIMAND.

Municipal Corporations—Arbitration—Expropriation of Toll Road-County Corporation-Costs-Liability of Township Corporations-Defendants Severing.

Action to recover costs paid by plaintiffs in respect of an arbitration.

BOYD, C.-This litigation turns upon the meaning and effect of proceedings taken to expropriate the Grafton toll road under the Ontario statutes of 1901 and 1902, 1 Edw VII. ch. 33, as amended by Edw. VII. ch. 35. Counsel at the bar freely criticized the enactments as complicated, confused, and difficult to understand. I am not disposed to

disagree, and, did the matter turn upon the critical construction of many of the sections cited, I should rather despair of coming to any satisfactory conclusion. Happily, I have only to deal with the legislation in the large, for the question is, whether certain costs incurred in an arbitration proceeding, paid by plaintiffs, should be recouped by defendants.

Grafton toll road runs through the townships of Hamilton and Haldimand, in the united counties of Northumberland and Durham; and certain private proprietors of land, who used the road and paid tolls, became very anxious to procure a statutory cesser of such tolls by the machinery of the statutes. To this end two petitions signed by over 50 ratepayers were obtained and presented to the councils of the municipalities concerned. That is to say, the petitions were addressed as well to each of the local councils as to the council of the united counties. They were first presented to the local councils, and those bodies gave their imprimatur . . and sent them on to the county-and as to Hamilton with a request by way of resolution that an arbitrator should be appointed.

Under the statute, when the road is in two local municipalities, and each presents a sufficiently signed petition, the duty is cast upon the council of appointing an arbitrator and proceeding with the arbitration in order to fix the price to be paid for the toll road. No intervention by the councils of the townships in which the road is situated is required or contemplated by the statute. The request made by the one and the action of both in becoming conduits for the passage of the petitions to the county, did not add to or detract from the duty and responsibility of the county-which is made by the statute the sole actor on one side of the arbitration proceedings, as against the road company on the other.

During arbitration proceedings the wishes of the townships, through legal advisers, as to the person who should be appointed third arbitrator, were ascertained, and pending the inquiry the townships assisted with counsel and witnesses in order, as is proved, to assist in keeping down the price of the road as far as possible. And for the witnesses they subpoenaed and the counsel they employed, the townships have made full payment.

The award being made and published, and expenses and costs thereof being paid by the county, it was found that the

figure fixed for the expropriation of the road was deemed excessive by all the parties to this litigation, and the award ended in nothing, not being acted on within the time fixed by the statute. Different reasons are given by the county for not making payment of the amount awarded; I suppose they hung back with a view of getting the townships to shoulder the financial responsibility; and other difficulties are foreshadowed in the evidence, such as that other municipalities were to some extent interested in the acquisition of the road, and should contribute to the expense and cost.

It does not appear to me to be needful to dwell on or to discuss these things, which do not go to the essence of this dispute as to whether plaintiffs should be relieved from the payment of costs, at the expense of defendants, by the direct order of the Court.

I can see no ground upon which to rest such a judgment against the townships. The costs and expense were incurred by the counties under the mandate of the law, and the law has not provided for unloading these on the townshipswho are really no more than interested bystanders. There must be found something in the statutes to implicate the townships in liability for the costs incurred by the county. The townships have paid such outlay as they incurred or sanctioned—but I find no evidence that they instigated or promoted the petitions, or that they sanctioned or are impliedly liable for what was expended by the counties in this abortive arbitration.

I expressed myself during the argument as against giving any alternative relief; that is to say, I find no reason to say that it should go back to the arbitrators to deal with these costs. Apart from all difficulties of procedure, which I do not consider, there is not intrinsically any ground to say that there has been a miscarriage or any inadvertence on the part of the arbitrators in this regard.

As to the costs of this action, while I dismiss the case, I direct that only one set of costs be taxed to defendants. Both townships are in the same boat-no need to sever in their defences; indeed the severance is only as to form, for the substance of both pleadings is identical in language and effect, save only an extra paragraph in Haldimand's pleading (3), which is merely a denial and of no special significance as a defence.

CARTWRIGHT, MASTER.

CHAMBERS.

DECEMBER 1ST, 1905.

WESTMORELAND COAL CO. v. HAMILTON GAS LIGHT CO.

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Discovery Examination of Parties - Production of Documents-Relevancy-Contract-Construction.

Motion by plaintiffs for an order requiring defendants to file a further and better affidavit of documents and to answer further questions upon examination for discovery.

James Dickson, Hamilton, for plaintiffs.

D'Arcy Martin, Hamilton, for defendants.

THE MASTER:-This action is brought to recover $4,790 as the balance of the price of coal delivered on a contract by plaintiffs to defendants during the season of 1902-3.

The defendants claim to retain this sum as "being the difference between the price paid by defendants in open market for coal not furnished by plaintiffs under their contract, and price agreed on by plaintiff's as that for which plaintiffs would furnish the said coal.”

The contract, as expressed in letter of 5th May, 1902, from defendants to plaintiffs, was on this condition: "Car deliveries to be distributed over the year as may be required by the company." This was accepted by letter of 29th May, 1902, "in answer to above, in accordance with the conditions named therein," but "subject to the usual conditions as to strikes and accidents and other delays beyond our control."

The parties have been dealing with each other for some years, and their relations have always been, and apparently still are, amicable. But the season in question was that in which the strikes of the anthracite coal miners, followed by a winter of unusually frequent and heavy snow storms, made it always extremely difficult and often well nigh impossible. to get coal from Pennsylvania to this Province. In this way it is not surprising that defendants were kept in a state of

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