of the payment into Court, which is not to be deemed in itself an admission of the cause or causes of action: Rule 420.

Plaintiff's sue for $87,831.26 and interest, an alleged balance due them for work done pursuant to a contract and moneys deposited with defendants as security for the due performance of such contract.

Defendants in terms admit owing a balance of $705.51 in respect of work done by plaintiffs, after deducting sums fixed by themselves as credits to which they are entitled in respect of defective work and work called for by their contract which they allege plaintiffs have failed to perform. They also in terms admit liability for the deposit of $25,000 and interest, amounting together to $28,470.69, less a credit to which they allege they are entitled in respect of penalties for delay, amounting to $9,600.

By a mistake they state the entire sum due plaintiffs to be $18,870.69, instead of $19,576.20, which, upon the above admissions, is the correct amount. This sum of $18,870.69 they allege to be the "balance due in respect of all the said matters" and they bring it "into Court in full satisfaction of plaintiffs' claim herein."

I am unable, upon any ground satisfactory to myself, to distinguish this case in principle from Andrews v. Patriotic Assurance Company, 18 L. R. Ir. (C.L.) 115, and United Telephone Company v. Donohoe, 31 Ch. D. 399.

In the former case to a claim for £1,000 upon a policy of insurance, the defendants pleaded that because of a condition of the policy entitling them to an apportionment of the loss with other insurers, only the sum of £62 was due the plaintiffs. A motion for judgment for this amount with leave to proceed for more was refused. The plaintiffs, seeking advantage of the admission, were held not to be entitled to the benefit of it severed from the accompanying statement that the amount admitted was the entire sum due.

In the latter case the plaintiffs sued for infringement of patents: the defence admitted the validity of the patents. and 10 sales infringing upon them, and denied other infringements. The plaintiffs moved for judgment upon these admissions. Bacon, V.-C., granted an injunction but refused an inquiry as to damages. Upon the plaintiffs' appeal for a variation of this judgment, the Court of Appeal (Lord Esher, M.R., Lindley and Lopes, L.JJ.), granted an inquiry a to damages in respect of the admitted instances of infringement, but refused to direct a general inquiry as to damages

for other infringements alleged by the plaintiffs. Lord Esher said: "In this case the plaintiffs have moved for judgment upon the pleadings instead of joining issue and setting down the action for trial; they have, therefore, accepted the statement of defence, and must take the negative as well as the affirmative allegations therein contained."

A careful comparison has satisfied me that there is no material difference between our Rule 616 and those under which these cases were decided by the Irish and the English Courts.

Upon these authorities I must therefore hold that plaintiffs are not entitled to judgment upon this motion with leave t proceed for the balance of their claim against defendants.

It follows that they are not entitled to have the money in Court paid out to them in execution. Neither do I think it should be paid out to them under Rule 419, which provides that money when so paid in shall remain in Court subject to further order, unless the plaintiff elects to take it out as provided in Rule 423," that is, "in satisfaction of the very cause of action or part thereof in respect of which it was paid in." The defendants have paid their money in "in full satisfaction of the plaintiffs' claim." Whatever discretion the Court may have by virtue of the words "subject to further order," in Rule 419, should not, in my opinion, be exercised to enable plaintiffs to take as a payment on account moneys which defendants have offered only "in full satisfaction."

The appeal must therefore be dismissed. The costs will be to defendants in any event of this action.

DECEMBER 18TH, 1905.

ANGLIN, J.

WEEKLY COURT.

RE ROSE.

Will Charitable Beques!--Validity-Application by Execu tors for Direction of Court thority.

Question Covered by Au

The London and Western Trusts Co., executors of Richard Rose, deceased, sought a direction from the Court a to the residuary bequest contained in the testator's will:

66

To distribute the residue among such charities and charitable and religious institutions as the said trustees may, in their judgment, deem right and proper." The testator, so far as known, left no next of kin. The manager of the trusts company swore that he was advised and believed that, for the protection of the executors, the opinion of the Court should be obtained as to the validity of the bequest.

The trusts company now asked for a direction as to the form in which the executors should raise this question and the parties to be served with notice of the proposed application.

J. B. McKillop, London, for the executors.

ANGLIN, J., held that the question intended to be raised was so clearly covered by Re Huyck, 5 O. W. R. 794, 6 O. W. R. 112, that an application for the direction or opinion of the Court was quite unnecessary. Grimond v. Grimond, [1905] A. C. 124, was considered in Re Huyck. Where the very point alleged to be the subject of doubt has been authoritatively determined by an appellate Court, executors or trustees are not warranted in subjecting the estate under their control to the expense of such an application as that here proposed.

ANGLIN, J.

DECEMBER 19TH, 1905.

Will--Construction

WEEKLY COURT.

RE M.

Power of Sale-Vacant Land — “ Un

productive of a Substantial Net Profit"-Trustees.

Motion by trustees under a will for an order determining

a question arising under the will.

W. A. H. Kerr, for trustees and adult beneficiaries.

F. W. Harcourt, for infants and unborn issue.

H. J. Wright, for purchaser.

ANGLIN, J.:—The executors ask the opinion of the Court as to their right to sell and make title to a property in the

city of B. The will contains the following clause: "I empower my trustees in their discretion to lease, sell, or otherwise dispose of any real estate of which I may die possessed situate outside the city of B., and also any of such real estate in B. as shall be vacant or unproductive of a substantial net profit after payment of taxes, insurance, and charges of management, in case the same is in their judgment not improving or likely to improve in value.”

No other provision of the will affects the question raised. The material filed, including an affidavit of one of the trustees, shews that the offer of the purchaser is exceptionally good; that the present annual net income from the property equals barely 2 per centum of the proposed purchase price; that the rentals of the property have been steadily declining for the past 10 years; that the future of the property is at best highly speculative, with an apparent strong probability that it will depreciate rather than appreciate in value; that the class of tenants available is very limited; that to maintain the building in such a condition as will make it productive of any revenue will require frequent and considerable expenditures on capital account; that the value of the property is very large and the risk of continuing to hold it commensurately great;-in fine, that, unless obliged to retain it by the provisions of the will, the trustees would not be justified in permitting the loss of any opportunity to sell to advantage.

Though not expressed, there is, in my opinion, implied, in the power of sale conferred, a prohibition against selling real estate in the city of B. which is not vacant, and is productive of a substantial net profit as defined by the testator. It therefore becomes necessary to determine what is such a substantial net profit. This term is distinctly relative. Thus a man who might in one locality be deemed a "substantial " householder would in another be regarded as by no means answering this description: Rex v. Stubbs, 2 T. R. 406. What may be a substantial net profit upon one class of investment, may be a wholly inadequate return from another. The character and the surroundings of the property; its prospective as well as its present value; its safety as a security for the corpus, these and similar features must be considered in determining whether in each particular case the net return is or is not a substantial net profit. The Standard Dictionary defines "substantial" to be "of considerable value;"

The Century," of considerable amount, as a substantial profit." Again, while substantial damages, as contradistinguished from nominal damages, are defined as "an amount worth having" (Wharton), it is obvious that what would be to one man and in one set of circumstances decidedly substantial damages would to another man and in other circumstances be very unsubstantial.

Having regard to all the circumstances of the present case, as disclosed upon the material filed, I have reached the conclusion that a present net return of 24 per centum upon the saleable value of the property in question is not, within the meaning of those words as used by the testator, "a substantial net profit."

The existence of the other circumstances prescribed by the testator as conditions upon which the power of sale is to arise being proven by the affidavits filed, the case is, in my op.on, one in which the executors and trustees have the right to sell and can give to the purchaser a good title.

DECEMBER 20TH, 1905.

DIVISIONAL COURT.

ARDAGH v. TORONTO R. W. CO.

Negligence Collision between Street Car and Fire Waggon-Injury to Person on Waggon-Excessive Speed -Contributory Negligence-Findings of Jury.

Motion by defendants to set aside verdict and judgment for plaintiff (Charles O. Ardagh, foreman of Rose avenue station of the city of Toronto fire department) for $1,200 in an action for negligence tried before MEREDITH, C.J., and a jury at Toronto, and to dismiss the action or for a new trial, on the grounds of absence of negligence on the part of defendants and of negligence on the part of plaintiff.

About 7 o'clock in the evening of 24th November, 1904, plaintiff was driving rapidly across Sherbourne street along Wellesley street in a hose waggon to reach the scene of a fire, when a belt line car of defendants collided with the waggon, threw plaintiff out, and injured him. The negligence charged was that defendants' car was going at a great rate of speed and was not under control.