think also that a demand and refusal sufficient to entitle the applicant to make such a motion as this is proved.

As to the other point-that the applicant has another remedy and therefore is not entitled to the extraordinary one which he seeks it is sufficient to say that the Municipal Act makes necessary to the validity of a by-law that it be signed by the Mayor or member of the council who was presiding officer when it was passed, and provides no machinery for the by-law being signed by any one else when the mayor or presiding officer refuses to sign..

Preston v. Corporation of Manvers, 21 U. C. R. 626, cited by Mr. Middleton, is distinguishable. In that case, after the reeve had refused to sign the by-law, the council had appointed another presiding officer in his place, and the reeve had vacated the chair, so that the by-law was signed by the de facto presiding officer, and in that case the motion to quash the by-law was made by the reeve himself, and it may well have been that it did not lie in his mouth to make the objection.

The order will, therefore, go as asked, but the operation of it as to the signing of the contract will be stayed for two weeks to enable an action to be brought and an injunction obtained to restrain the execution of it.

The respondent must pay the costs of the application.

FALCONBRIDGE, C.J.

CHAMBERS.

DECEMBER 6TH, 1905.

CRADDOCK v. BULL.

Writ of Summons-Service out of Jurisdiction-Cause of Action-Contract-Correspondence - Rule Rule 162-Forum

Discretion.

Appeal by plaintiff from order of Master in Chambers,

ante 715.

F. J. Roche, for plaintiff.

D. W. Saunders, for defendant.

FALCONBRIDGE. C.J., dismissed the appeal with costs.

MABEE, J.

DECEMBER 8TH, 1905.

TRIAL.

KELLY v. TOWNSHIP OF WHITCHURCH.

BAKER v. TOWNSHIP OF WHITCHURCH.

Way-Non-repair-Injury to Persons Driving-Logs Piled on Highway-Notice to Municipal Corporation - Negligence-Contributory Negligence.

Actions for damages for injuries sustained by plaintiffs by reason of the non-repair of a highway controlled by defendants.

C. R. Fitch, Stouffville, for plaintiffs.

G. H. Watson, K.C., and James McCullough, Stouffville, for defendants.

W. M. Boultbee and G. S. Macdonald, Stouffville, for third party.

MABEE, J.-A further perusal of the evidence and authorities cited has confirmed the opinion I formed at the trial that plaintiffs had established their cases and were entitled to recover damages from defendants. I find that the highway in front of Collard's mill was out of repair; piles of logs were lying for some distance strewn over the road allowance; and the particular pile that caused the injuries in these cases extended out to within a few feet of the waggon tracks on the beaten portion of the road. The evidence discloses that at this point the whole road allowance on the west side of the travelled portion is level, and had it not been for the logs, bark, and rubbish piled and left upon the allowance for road, persons driving thereon could have safely used the entire width of the statutory allowance up to the westerly limit.

The plaintiffs Fanny Baker and Elizabeth Kelly on 1st June, 1905, were lawfully driving on the highway, and the horse, becoming nervous or frightened, turned suddenly out to the west from the travelled roadway, and in again turning back to the east the left front wheel of the buggy came in contact with the easterly log of a large pile lying between 2 and 3 feet of the wheel track of the road, throwing these ladies out upon the logs, and breaking the buggy, from which the horse escaped and ran away.

I find that there was no contributory negligence, and that the horse was not a dangerous one for these ladies to drive. It was established that it had repeatedly been driven by children, that on several occasions young persons and ladies had driven it over this same road-it was described as somewhat spirited and inclined to shy a little, but its general character was not successfully attacked. I accept the statement given by George Baker of the manner in which the accident occurred. Staley and his wife were not standing where they could tell with certainty whether the ladies were thrown from the buggy before or after reaching the pile of logs-the breaking of the spoke and the place the ladies were found, as well as all the probabilities of the matter confirm the account given by Baker, who was running toward the scene of accident and was in a position where he could see the "sudden stoppage" of the vehicle as it came in contact with the log.

The safety of the buggy was questioned by defendants, and while it was an old one and in use many years, I am of opinion that it in no way contributed to the disaster, and that a new one would have been as badly wrecked as the one in use was found to have been. It was the collision with the obstructions upon the highway that caused the occupants to be thrown from it, and I find that they were not thrown out until after the impact with the log.

It was strenuously urged that this highway was not out of repair, notwithstanding the presence of these logs and other obstructions, because there was an open space of some 22 or 23 feet between the logs to the east and west of the travelled road, and several cases were cited that are said to support that contention. I am of opinion that a municipal council cannot legally permit two-thirds of the statutory road allowance to be made use of by an adjacent mill owner, in an old settled portion of the country, for piling his logs and other mill material, and say to the public that they must find their way as best they may through these obstructions. These particular logs had been upon the road since the preceding February. and the council had full knowledge of the condition of affairs; indeed, it was shewn that this genes a condition had existed for many years.

I do not think the horse had become entirely unmanage able, and I am of opinion that had the buggy not come into contact with this obstruction the accident would not have happened.

I have not overlooked the various other contentions that were ably advanced upon behalf of defendants, but I am unable to see in any of them anything to prevent recovery by plaintiffs.

I assess damages as follows: to Mrs. Kelly, $1,200, and doctor's bill, $160-in all, $1,360.

To Mrs. Baker, $1,000; to George Baker, $200, and doctor's bill, $97.50-in all, $1,297.50.

I direct judgment to be entered in the Kelly action for $1,360 and costs, and in the Baker action for $1,297.50 and costs.

In accordance with the arrangement made at the trial, I do not now consider the liability (if any) of the third party.

ANGLIN, J.

DECEMBER 8TH, 1905.

TRIAL.

HANLEY v. TORONTO, HAMILTON, AND BUFFALO R. W. CO.

Railway-Injury to Lands-Subsidence-Remedy—Action— Damages - Mandatory Order - Continuing DamageCompensation-Stay of Proceedings.

Action to recover damages for an alleged subsidence of plaintiff's lands situate along the top of an embankment formed by a cutting which was constructed for the purposes of defendants' railway, and through which it was carried. No lands of plaintiff were taken for the purpose of the railway, and no notice of intention to exercise their statutory powers was served by defendants upon him. There was no allegation of negligence in the construction of the embankment. Though the railway was built in 1895, plaintiff suffered no injury until the spring of 1905.

In answer to questions submitted to them, the jury found that there has been a subsidence of plaintiff's lands, which would not have occurred but for the excavation or cut made by defendants; that the immediate cause of such subsidence was not the washing or discharge of the natural surface water

VOL. VI. O W. R. NO. 22 - 58

from plaintiff's lands down the railway embankment; that the subsidence was due to the pressure of the weight of plaintiff's land apart from any action of such discharging surface water and to no other cause; and that the damages sustained by plaintiff-assessing them as if there were no risk of further injury and merely for the actual subsidence which had already occurred-amounted to $75.

W. T. Henderson, Brantford, for plaintiff.

H. Carscallen, K.C., for defendants.

ANGLIN, J.:-For defendants it is contended that plaintiff's remedy-if any-is under the arbitration provisions of the Railway Act, and that he has no right of action for the injuries to his lands. It is conceded that if the provisions of the Railway Act do not exclude his right of action, the plaintiff is upon the findings of the jury entitled to judgment.

Sections 146 et seq. of the Railway Act of 1888 provide for proceedings to determine the compensation to be paid in regard to lands to be taken or affected by the exercise of the statutory powers of the company, when, upon application made to them, the owners of such lands have failed to agree with the company as to such compensation, &c. The foundation of the proceedings so provided for is the notice to be served upon the land owner prescribed by sec. 146, and it is only after the service of such notice and the taking of the proceedings consequent thereupon that the company are by the statute empowered to take, or in any way to injuriously affect by its construction, lands over or through or adjacent to which it may be carried. In the absence of such proceedings the company are, as to lands damaged by the construction. of the railway, trespassers, and, being without the protection of the Railway Act, are like any other trespassers responsible to the person injured in damages, to be recovered in the ordinary courts of the country: Corporation of Parkdale v. West, 12 App. Cas. 602, 614; Wilkes v. Gzowski, 13 U. C. R. 308; Mason v. South Norfolk R. W. Co., 19 O. R. 132, 138; Martini v. Gzowski, 13 U. C. R. 298. I find nothing in the authorities cited by counsel for defendants in the least inconsistent with this view.

Plaintiff claims a mandatory order to compel defendants to support his land and prevent its further subsidence by the erection of a stone wall or other adequate means. As the damages awarded have been necessarily restricted to compensation for the subsidence which has already occurred.