wards. 2. Notwithstanding a provision in its charter of incorporation prohibiting loans for general purposes beyond a fixed amount or in proportion to the assessment of rateable property within its limits, a municipality may make special loans under the terms of a statute which gives it that power.

Juneau v. La Ville de Lévis, Q.R. 14 K. B. 104.

-Member of council contracting with municipality-Whether contract is voidAction to recover money paid.]-R. being reeve of plaintiff municipality, did certain work repairing a stone crusher, for which work the municipal council voted him $75, such sum being shewn in the accounts as expenses. Subsequently, he spent considerable time, at the request of the council, in advocating the passage through the Legislature of a loan bill, in respect of which time he was voted $100. An action was brought for the recovery of these two sums of money as illegal payments in contravention of section 21 of the Municipal Clauses Act, and also for penalties under section 22 for sitting and voting as reeve after the receipt of these respective sums. The claim for penalties was abandoned at the trial and the action resolved itself into a question of law, as to whether the statement of claim disclosed a cause of action in the circumstances:-Held, that the statement of claim did not disclose a cause of action, so the contract was not made void by the statute, and there were no grounds alleged on which it might be declared void in equity. The statute does not prohibit the making of a contract, although it imposes a penalty for acting or voting subsequently thereto.

South Vancouver v. Rae, (No. 2.), 12 B.C.R. 184.

-Railway aid-Municipal by-law-Condition precedent-Part performance-Annulment of by-law-Right of action-Assignment of obligation-Notice.]-An action to annul a municipal by-law will lie although the obligation thereby incurred may be conditional and the condition has not been and may never be accomplished. Where a resolutory condition precedent to the payment of a bonus under a municipal by-law in aid of the construction and operation of a railway has not been fulfilled within the time limited on pain of forfeiture, an action will lie for the annulment of the by-law at any time after default, notwithstanding that there may have been part performance of the obligations on the part of the railway company and that a portion of the bonus may have been advanced to the company by the municipality. In an action against an assignee for a declaration that an obligation had been forfeited and ceased to be exigible, on account of default in the fulfilment of a resolutory condition, exception

cannot be taken on the ground that there has been no signification of the assignment as provided by Article 1571 of the Civil Code of Lower Canada. The debtor may accept the assignee as creditor and the institution of the action is sufficient notice of such acceptance. The Bank of Toronto v. The St. Lawrence Fire Insurance Co. (1903), A.C. 59, followed.

City of Sorel v. Quebec Southern Railway Company, 36 Can. S.C.R. 686.

-Railway aid-Construction of agreement -Expropriation-Description of landsReference to plans.]—A municipality passed a resolution by which it agreed to pay for lands required for the right of way, station grounds, sidings and other purposes of a railway as shewn upon a plan filed under the provisions of the general railway Act. At the time of the resolution there were four such plans filed, each shewing a portion of the land proposed to be taken for these purposes and including, in the aggregate, a greater area than could be expropriated for right of way and station grounds under the provisions of the Acts applicable to the undertaking of the railway company. The Legislature passed an Act confirming such resolution. To an action by the owner of the land taken, on an award fixing the value of that in excess of what could be so expropriated, the corporation pleaded no liability on account of such excess and also, that there was no specific plan on file describing the land:-Held, affirming the judgment appealed from (38 N.S.R. 76), that the first defence failed because of the Act confirming the resolution and, as to the second, that the four plans should be read together and considered to be the plan referred to in such resolution.

County of Inverness v. McIsaac, 37 Can. S.C.R. 75.

-Sale of lands of the corporation-Sale to other than the highest bidder-Reasons actuating aldermen.]-Where the action of a municipal corporation in selling real estate of the corporation to a person other than the highest bidder is called into question:-Held, that it is sufficient if the Court find: 1. That the council acted in perfect good faith, and, 2. That they had reasons before them which they might reasonably have considered good and sufficient to justify their action.

Phillips v. City of Belleville, 11 O.L.R. 256 (D.C.).

electors in the municipality voting thereon and also of the Lieutenant-Governor-inCouncil. 2. The promulgation of such a by-law can take place only after these formalities have been complied with and the date should be mentioned in the notice thereof; consequently the three months in which it may be contested do not commence to run until it comes into force, fifteen days after notice thereof has been published.

Newell v. Town of Richmond, Q.R. 28 S.C. 406 (Sup. Ct.).

-By-law-Purchase of land-Conveyance to corporation-Attempted rescission.]-A municipal council desiring to maintain as required by statute (3 Edw. VII. ch. 19, sec. 524), an industrial farm passed a bylaw directing that "a farm be purchased for an industrial farm." Tenders were then called for; a committee was appointed to examine the properties offered, that of the plaintiff being among them; the plaintiff's tender was accepted; the title to his property searched by the corporation's solicitor; and a conveyance of the property to the corporation obtained and registered. A cheque in the plaintiff's favor for the purchase money was made out and signed by the proper officers, but before its delivery to the plaintiff a by-law was passed by the council rescinding the former bylaw, ordering the cheque to be cancelled, and directing the property to be reconveyed to the plaintiff:-Held, that the transaction was an executed one, the benefit of which the corporation had obtained, and, notwithstanding the absence of a by-law specifically authorizing it, could not be rescinded against the will of the plaintiff, in whose favour judgment for the purchase money was accordingly given.

Macartney v. County of Haldimand, 10 O.L.R. 668 (Clute, J.).

-Contract for purchase of plant-Allegations against mayor-Alteration in contract-Ratification by council.]-Under Con. Rule 261, an order to stay an action or to strike out a statement of claim as disclosing no reasonable cause of action will only be granted in the clearest case. A statement of claim in an action by the plaintiff, on behalf of himself and the other ratepayers of a city, alleged that an agreement was entered into on the 17th July, 1905, by the city with an electric light company, and which was duly authorized by by-law, whereby the city were to acquire for $200,000 the company's plant, together with supplies up to $3,000 not converted into plant; but that the defendant, the mayor, without any authority, altered the agreement, by inserting after the word "supplies" the words "on the 30th of April," the effect of which was to deprive the municipal corporation of a large amount of supplies. Motions made by the several defendants to strike

out the statement of claim as disclosing no reasonable cause of action, and to stay or dismiss the action as frivolous and vexatious, were dismissed. It is not essential in such an action to allege fraud; but there should be an allegation of a refusal by the corporation to bring an action; and where, with knowledge of the alleged alteration, the corporation had allowed six months to elapse without taking proceedings, and as a defence to the action a resolution of the council was produced, authorizing such defence, which, it was claimed, amounted to acquiescence and ratification on the corporation's part, this was held to constitute evidence of such refusal, and the defendant was allowed to amend, so as to specially allege it. Semble, ratification of the act alleged would, under the circumstances, constitute a breach of trust on the part of the corporation.

Black v. Ellis, 12 O.L.R. 403 (D.C.).

-Reeve, authority of to bring action in name of municipality-Resolution of council Substantial compliance with.] - A municipal council having resolved to join in an action already launched against defendant, the reeve, after consultation with the solicitor, gave instructions to commence an independent action on behalf of the municipality:-Held, that as the municipal council had shewn an intention to sue defendant, the action of the reeve was a substantial if not a strict compliance with that intention.

South Vancouver v. Rae, 12 B.C.R. 64.

-Drainage system.] See DRAINAGE.

V. LIABILITY FOR NEGLIGENCE.

Negligence Election Defendants not joint tort feasors.]-In an action for damages against the corporation of a city for allowing planks and lumber to remain on one of its streets, which had been negligently piled and wrongfully left there by the other defendants, and which fell on the plaintiff and injured him:-Held, that the defendants were not joint tort feasors and that Con. Rule 186 was not so amended by 3 Edw. VII. ch. 19, sec. 609 (0.), as to authorize the action as constituted, and plaintiff was ordered to elect against which defendant he would proceed. Hinds

v. Corporation of the Town of Barrie (1903), 6 O.L.R. 656; Rice v. Town of Whitby (1898), 25 A.R. 191, and Chandler and Massey, Limited, v. Grand Trunk Railway Co. (1903), 5 O.L.R. 589, followed. Tate v. Natural Gas and Oil Co. of Ontario (1898), 18 P.R. 82, and Langley v. Law Society of Upper Canada (1902), 3 O.L.R. 245. distinguished.

Baines v. City of Woodstock, 10 O.L.R. 694 (M.C.).

-Public health.]-See PUBLIC HEALTH.

VI. HIGHWAYS AND BRIDGES.

See HIGHWAYS.

VII. TAXATION AND RATES.

See ASSESSMENT; SCHOOL LAW.

NAVIGATION.

See SHIPPING.

NEGLIGENCE.

Finding of jury-Questions Specification of negligence.]-Where on the trial of an action based on negligence, questions are submitted to the jury, they should be asked specifically to find what was the negligence of the defendants which caused the injury. General findings of negligence will not support a verdict unless the same is shewn to be the direct cause of the injury.

Mader v. Halifax Electric Co., 37 Can. S.C.R. 94.

-Damages for negligent driving-Defence of contributory negligence.]-In an action claiming damages for injuries received by plaintiff in consequence of negligent driving by defendant, to which the principal defence was contributory negligence on the part of plaintiff, the trial Judge found in plaintiff's favour and assessed the damages at $850, and costs. On appeal, the Court was equally divided on the question of contributory negligence and defendant's appeal was dismissed without costs.

Naas v. Manning, 39 N.S.R. 133.

-Injury to infant in highway-Careless driving-Right of infant's father to recover for expenses.]-The infant plaintiff, while playing in a city street, was run over by a dray of the defendants, which, according to some of the evidence, was being driven at a great rate of speed, at a corner which the dray turned, taking the left side of the roadway:-Held, that there was evidence of negligence which could not be withdrawn from the jury. The infant plaintiff's father was joined with him as a plaintiff claiming to recover the expenses which he had incurred on account of the infant's injuries. The infant was six years old and lived at home with and under the charge of the father:-Held, that the father was obliged to supply the infant with the necessaries of life, including medical attendance, and if the burden of that duty was increased by the wrongful acts of the defendants, the father was entitled to recover as damages the amount of such increase; Meredith, J. A. dissenting. Wilson v. Boulter (1899), 26 A.R. 184, distinguished. No objection was taken by the defendants to the right of the father to recover until the argument before the Court of Appeal:-Held, per Osler, J. A. that the objection was open, unless it was

possible for the plaintiff's case to have been bettered by the introduction of further evidence at the trial, which did not appear to be the case; but, per Garrow, J. A., that it was too late to take the objection. Judg. ment of a Divisional Court affirmed.

Banks v. Shedden Forwarding Co., 11 O.L.R. 483, C.A.

-Hole in ice over harbour-Contributory negligence.]—The dead body of the plaintiff's husband was found lying on ice formed over a harbour, the head being in open water where the defendants had made a hole. At the trial of an action to recover damages for his death, questions were submitted to the jury and answered in favour of the plaintiff, except the following: "Could the deceased by the exercise of ordinary and reasonable care have avoided the accident which occasioned his death; and, if so, in what respect or how could the deceased have avoided the accident?" To this the jury answered: "Yes, he might have taken another road, or if sober, on a bright night, he might have avoided the hole":-Held, that this was a finding of contributory negligence, and the action was properly dismissed, though the trial Judge (10 O.L.R. 37) dismissed it on another ground.

Plouffe v. Canada Iron Furnace Co., 11 O.L.R. 52 (D.C.).

as to

-Injury to the person-Doctrine of common employment in Manitoba-Liability of Crown.]-The effect of clause (c) section 16 of the Exchequer Court Act is not to extend the Crown's liability so enable anyone to impute negligence to the Crown itself, or to make it liable in any case in which a subject under like circumstances would not be liable. (2) In the Province of Manitoba the Dominion Government is not liable for any injury to one of its servants arising from the negligence of a fellow-servant. Filion v. The Queen (24 Can, S.C.R. 482) referred to. (3) With respect to the liability of the Dominion Government in cases involving the doctrine of common employment, nothing short of an Act of Parliament of Canada can alter the law of Manitoba as it stood on that subject on the 15th July, 1870. Semble, the Workmen's Compensation for Injuries Act, R.S. Man. ch. 178, does not apply to the Crown, the Crown not being mentioned therein.

Ryder v. The King, 9 Can. Exch. R. 330.

-Fall of wall-Personal injury.]-Judgment of Divisional Court, reported 9 O.L. R. 57. 1905 C.A.D. Dig. 288, affirmed.

Valiquette v. Fraser, 12 O.L.R. 4 (C.A.).

-Injury to the person-Public work-Negligence Aggravation of injury by unskilful treatment.]-Where a person who is injured through the negligence of a servant

of the Crown on a public work voluntarily submits himself to unprofessional medical treatment, proper skilled treatment being available, and the skilled treatment being available, and the natural results of the injury are aggravated by such unskilled or improper treatment, he is entitled to such damage as would, with proper treatment, have resulted from the injury, but not to damages resulting from the improper treatment he subjected himself to.

Joseph Vinet v. The King, 9 Can. Exch. R. 352.

-Misdirection Withdrawing questions from jury.]—In an action claiming damages for the negligent operation of an elevator by defendant's servant, causing the death of plaintiff's son, a new trial was moved for on behalf of plaintiff, on the ground of misdirection. The Court was equally divided: -Held, per Graham, E. J. and Russell, J., that as the effect of the misdirection complained of was to withdraw from the jury questions which were proper for their consideration, and upon which they should have been asked to pass, there should be a new trial. Per Townshend, J., that, although the trial Judge in his instructions to the jury used inaccuracies of expression in regard to the law of negligence these expressions were not of such a character as to mislead the jury on the main subject of enquiry, and, no substantial wrong or miscarriage having been occasioned, the provisions of O. 37, R. 6 applied, and a new trial should not be granted. Per Longley, J., the findings of the jury were warranted by the evidence, and the questions submitted being proper there was no reason for a new trial and the application should be dismissed.

Hawley v. Wright, 39 N.S.R. 1.

Of steamship company.]-See SHIPPING. -Of railway company.]-See RAILWAY. -Of electric railway company.]—

See ELECTRIC RAILWAY.

-Of mining company.]-See MINING. -Non-repair of highway or bridge.]— See HIGHWAY.

NEW TRIAL.

See APPEAL.

NOTICE.

Notice of action-Allegation in declaration -Demurrer.]-A demurrer based on the fact that the declaration did not allege that notice had been served upon the defendant corporation before the institution of the ac

tion was dismissed, as the omission of such an allegation does not absolutely bar the right of action.

Cloutier v. City of Montreal, 7 Que. P.R. 385 (Fortin, J.).

—Of trial.]—See TRIALS.

-Of action.]—See PUBLIC OFFICER.

NUISANCE.

Electric wire-Proximity to highwayInjury to infant- Neglect of duty.]-The wires of the defendant company were strung upon poles across a ravine, which was private property, parallel and at least fourteen inches from a bridge forming a highway. The plaintiff, a boy of eight years, who was crossing the bridge or playing thereon, pushed his arm through an opening in the lattice work of the railing of the bridge, and touched a wire. The insulation being imperfect, the boy's hand, where it had touched the wire, and his head, which touched part of the iron work of the railing, were burnt. The wire was at such a distance that it could not be touched accidentally by any one merely passing over or standing on the bridge or at the railing, or who was looking through or over the railing, or without intending to touch it, or without deliberately reaching out through the railing as far as the wire, and there was no evidence that there was anything of a character likely to entice or induce children to play with it or put their hands upon it: -Held, that there was no evidence upon which the jury could reasonably have found that the electric wire was a nuisance to those lawfully using the highway, or that there was any neglect of duty on the part of the defendant company to the public which could render them liable to the plaintiff.

Gloster v. Toronto Electric Light Co., 12 O.L.R. 413 (C.A.).

(Reversed by Supreme Court of Canada, 22nd November, 1906.)

-Injury to landlord's reversion-Damages in lieu of injunction.]—(1) A landlord is not entitled to an injunction to prevent the carrying on of a livery and feed stable business in proximity to dwellings occupied by his tenants in a mainly residential locality so as to constitute a nuisance, without proof of injury to the reversion or that one or more of the tenants had left because of the annoyance from the stable, but such injunction may be granted at the suit of any tenant who proves such nuisance. (2) Although the nature of the occupancy of a locality is a large factor in deciding whether the carrying on of a certain trade there would or would not create a nuisance; vet, in deciding that question, no consideration need be given to the probability that in the near future, owing to the increase of population, the locality will become mainly a business instead of a residential district. (3) The plaintiffs being tenants from month

to month only, it would not be a proper case for awarding damages instead of granting an injunction, as it could not be known how long the tenants might remain and, besides, injuries of the kind in question cannot be fully compensated by damages and it would be impossible to estimate such damages accurately in every case. McKenzie v. Kayler, 15 Man. R. 660 (Richards, J.).

OATH.

Affidavit sworn before attorney in the case-Art. 23 C.P.]—An affidavit sworn by the plaintiff before one of the attorneys in the case to prove damages in an action in ejectment by default is irregular and the délibéré will be discharged.

Haddey v. Shields, 8 Que. P.R. 30.

OBJECTIONS.

See APPEAL; BANKRUPTCY; COSTS; OPPOSITION.

OPPOSITION.

Opposition to judgment-Absence of defendant-Expiration of delay.]-The absence of the defendant and other serious reasons set forth in an affidavit by his solicitors, shewing a plea to the merits of the action, are sufficient reasons for leave to file an opposition to judgment after the expiration of the time limited.

Gothé v. Robillard, 7 Que. P.R. 393 (Fortin, J.).

-Opposition to judgment-Insufficient deposit-Preliminary exception.]-A motion for the rejection of an opposition to judg ment which has been admitted by a Judge, on the ground that the deposit made therewith was insufficient, is a proceeding in the nature of a preliminary exception and cannot be entertained when it is not accompanied by the required deposit in Court.

Levin v. Lalonde, 7 Que. P.R. 481 (Taschereau, J.).

-Inscription in law-Useless allegations.] -Opposant claims ownership of goods seized, in virtue of her marriage contract, and of an acte déclaratoire et reconnaissance de dettes from defendant to her; she also asks that plaintiff pay the costs, because he acted in bad faith, knowing that these goods belong to opposant, for in another case in which plaintiff was a party, there was a return of nulla bona against the defendant:-Held, that plaintiff contesting cannot plead that this acte déclaratoire is of no value against third parties, and that it was passed when defendant was insolvent; but, he may allege that, notwithstanding said return of nulla bona, defendant made opposition on the ground