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other order in respect thereto as may be necessary to do equity.

Fontaine v. Payette, Q.R. 14 K.B. 544. [Affirmed, 36 Can. S.C.R. 613].

ORDER.

See APPEAL; JUDGMENT.

OVERHOLDING TENANT. See LANDLORD AND TENANT.

PARENT AND CHILD. See INFANTS.

PARTICULARS.

Of pleading-Opening settled accountsMistake.]-In order to open settled accounts on the ground of mistake specific errors must be alleged and proved. General allegations are not sufficient, and, if made, must be supplemented by particulars.

Ontario Lumber Company v. Cook, 11 O.L.R. 111 (Street, J.).

-Service of account.]-A defendant who has before action received a copy of the account sued on cannot make the want of service thereof with the declaration the basis of an exception to the form.

Lidstone v. Hamming, 7 Que. P.R. 431.

-Motion for particulars-Delays-Answer -Foreclosure.]-A party, having neglected to file with his inscription in law, or within the delays, his answer to plea, is de facto foreclosed from doing so, and cannot make a motion for particulars. Demers v. Brien, 7 Que. P.R. 467.

PARTIES.

Joinder of actions-Conspiracy-Defendants joining conspiracy at different times.]-An action may be brought against a number of defendants jointly for an illegal conspiracy, though they joined the conspiracy at different times, there being in substance only one cause of action, namely, the conspiracy to injure. In such case, however, the jury may differentiate and assess separate damages against the separate defendants according to the respective dates when they became members of the conspiracy. O'Keefe v. Walsh (1903), 2 Ir. R. 691, followed.

Copeland-Chatterson Company v. Business Systems, 11 O.L.R. 292 (Teetzel, J.). -Assignment pendente life.]—A party sued upon a claim which was transferred

to another after plea filed, may apply, on motion, to add the transferree as a plaintiff.

Beaudoin v. Vallières, 7 Que. P.R. 445 (Davidson, J.).

-Adding parties-Consent of parties added as plaintiffs-Consent signed by attorney-Sufficiency of power-Powers of referee as to amendments.]-An action, involving mainly the taking of accounts, was referred to the District Registrar, the referring order giving that officer all the powers of a Judge as to certifying and amending. On this authority the District Registrar, on application, added certain parties plaintiff, upon plaintiff filing a consent thereto of the parties so added. The writ of summons and statement of claim were afterwards amended. Defendant Hambly took out a summons to strike out the amendments to the writ and pleadings on the ground that the amendments were made without an order of the Court or a Judge thereof, and that as to the plaintiffs added, no proper consent signed by them had been filed. The documents purporting to be consents were filed by the plaintiff under a power of attorney authorizing him to sue for, recover and receive the amount of a certain judgment debt recovered in another action:-Held, that the action in which the consents were filed was a new action, that the power of attorney was, in the circumstances, insufficient, and that the amendments made in pursuance of such consents so filed must be struck out. Held, also, that the order conferring on the District Registrar power to amend, would also authorize him to add parties. Held, also, that the application to strike out the amendments made by the District Registrar was not an appeal, but a substantive application to

strike out certain amendments made by the District Registrar. But, semble, on the authority of Hayward v. Mutual Reserve Association (1891), 2 Q.B. 236, an appeal from the official referee lies to a Judge in Chambers.

Hill v. Hambly, 12 B.C.R. 253 (Irving, J.).

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Amendment Parties to action Contract made on behalf of company to be formed.]-Defendant contracted to sell and deliver to plaintiff all the bricks he should make during the year. It was stated in the contract that plaintiff entered into it on behalf of a company to be afterwards incorporated under the name of the Manitoba Construction Company. After the incorporation of such company the plaintiff brought this action in his own name for an injunction to restrain defendant from committing breaches of the contract and for damages for breaches already committed:-Held, that the plaintiff should not be allowed to amend his statement of claim by adding the company as co-plain

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-Striking out and adding-Suit by creditor-Assignment for benefit of creditors.] -Where after a suit was brought for a declaration that stock-in-trade in possession of defendants belonged to plaintiffs, the defendants made an assignment for the benefit of their creditors, and their assets were insufficient to pay their liabilities, the names of the defendants were ordered to be struck out and that of the assignee added.

Gault Brothers Company, Limited V. Morrell (No. 2.), 3 N.B. Eq. 173.

-Adding parties in Court of AppealAssignment of chose in action.]-A defendant in a suit may ask that the assignee of the plaintiff may be made a party to the cause even while the case is pending, on incidental proceeding, in the Appeal Court or where there has been a re-transfer.

Vallières v. Beaudoin, 7 Que. P.R. 330 (Ct. of K. B.).

-Mortgage action-Redemption.]— See MORTGAGE.

PARTNERSHIP.

Business done in common-Debtor and creditor-Action pro socio.]-Where persons agree to form a commercial partnership and, before finally settling the conditions by deed, one leases a shop in which the other puts goods and advances in money part of his contribution to the proposed firm, and both carry on business in the leased premises under the style of the proposed firm for two and a half months, finally separating on a misunderstanding, the claims arising from such circumstances can be adjudicated upon only in an action pro socio and for account. In such a case an action by one against the other to recover advances and the value of services

tendered is irregular and cannot be maintained.

McDowell v. Wilcock, Q.R. 28 S.C. 226 (Ct. Rev.).

--Commercial partnership

Member of partnership residing out of the provinceSecurity for costs-Power of attorney.]— 1. A commercial partnership is not a jural person or entity distinct from the several members who compose it. It cannot be a plaintiff in an action and as all the individual partners must be named as such in the writ, any one of them who does not reside in the province may be required to give security for costs. 2. In an action brought by a partnership doing business in the province, a member of it who resides outside is represented by those who reside within and who have the right to commit the firm to such an act of administration as the institution of a suit. He is therefore not bound to produce a power of attorney.

Browne v. Taylor, 28 Que. S.C. 462 (Davidson, J.).

-Voluntary liquidation.]-When all the parties have themselves liquidated the partnership, the liquidator may be discharged on petition.

Pepin v. Lamouche, 7 Que. P.R. 430.

-Dissolution-Continued use of firm name -Omission to give notice of dissolution or file certificate-Treasurer of corporation-Mixing of funds.]-On the evidence set out in this case a partnership in a private banking business which had existed between the defendant and one H. was held to be dissolved; but, as the business continued to be carried on in the firm name, and no notice of the dissolution was given, or any certificate thereof under the Copartnership Act, R.S.O. (1897), ch. 130, sec. 7, was filed, the defendant's liability to persons dealing with the firm continued. After the dissolution of the partnership, H., who was also treasurer of a municipal corporation, received, as such, moneys belonging to the corporation, out of which and other moneys, he made certain payments for the corporation and deposited the balance in a chartered bank where the firm kept its accounts, subsequently using it in the firm's business:-Held, that the defendant was not liable therefor, for in dealing with the moneys H. did so either as the corporation's authorized agent or in breach of his duty; if as agent, his knowledge that the defendant was not a partner must be attributed to the corporation, and, if in breach of his duty, his improperly mixing them with his own moneys, in which the defendant had no interest, could not render the defendant liable.

Town of Oakville v. Andrew, 10 O.L.R. 709 (C.A.).

-Failure to register declaration of partnership-Effect on contract-Penalty.]— Plaintiff sued the defendant for a balance due on a printing contract. Plaintiff carried on business under the name of the Victoria Printing and Publishing Company, during the term of the said contract, until after his action was launched, and in excess of a period of three months, without having complied with the provisions of sections 74 and 75 of the Partnership Act; which requires (sec. 74), every person trading alone under a firm or company name implying a plurality of partners, to file a declaration to that effect with the Registrar of the County Court of the county in which the business is being conducted; and (sec. 75), that such declaration shall contain certain particulars and be filed within three months of the adoption of such firm or company name. Defendant contended that plaintiff's action was barred by his non-compliance with sections 74, 75 and 76, and that he therefore could not enforce the contract:Held, by the Full Court, affirming the finding of the trial Judge in favor of the plaintiff, that while the plaintiff came within the wording of the statute, and became liable to the penalty provided for not registering, yet the penalty is imposed for something not contemplated by the contract in this case, and he was therefore entitled to recover.

Smith v. Finch, 12 B.C.R. 186.

-Liability of partners-Promissory notes -Securities-Release of partner-Covenant not to sue-Reservation of rights.]-The defendant M. was a partner with the defendant G. in a commission and produce business carried on in the same building as a storage business in which G. was also engaged. It was alleged by the plaintiffs that the defendant F. was a partner in both businesses. The account of the commission and produce business was kept at the plaintiff's bank. For the purpose of enabling the partnership to purchase the produce in which they dealt, the plaintiffs gave the partnership a line of credit in the form of an overdraft on their account. From time to time the plaintiffs discounted their promissory notes. the proceeds of which were placed to the credit of the account. The goods purchased by them were warehoused with the storage branch, and receipts signed in the name of "The Ottawa Cold Storage and Freezing Company" by G. were given to M. on behalf of the commission and produce business, and were from time to time indorsed over to and hypothecated with the plaintiffs as promissory notes were discounted. The transactions involved in this action were represented by ten warehouse ceipts indorsed to the plaintiffs by M., with a memorandum of hypothecation signed by G. and a certificate of valuation by him, and ten promissory notes made

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on behalf of the commission and produce business to the order of M. and indorsed by him and G. While these notes were current, the businesses ceased, and the plaintiffs took possession, and found that there was a large discrepancy between the goods in store and the amounts specified in the warehouse receipts. Before this action, and while interpleader proceedings in relation to the goods were pending, in which the plaintiffs desired to obtain the evidence of the defendant F., their solicitors, by their instructions, wrote to F.'s solicitor a letter stating that the plaintiff's had no evidence that F. was a member of the partnership known as "The Ottawa Cold Storage and Freezing Company," which was liable to the plaintiffs upon certain promissory notes, and that the plaintiffs had authorized the writers to undertake that the plaintiff's would not attempt to hold F. liable for the notes, or any of them as a partner in the company:Held, upon the evidence, that there was no ground for differing from the conclusion of the trial Judge that the defendant F. was a partner in both branches of the business.

Ontario Bank v. O'Reilly, 12 O.L.R. 420 (C.A.).

-Conversion-Sale of partner's interest under execution.]-L. and P. each carried on business in Saint John, buying and selling fruit. P. was a licensed auctioneer. To avoid competition between the parties it was agreed that P. was to buy all the apples handled by either in the market square, L. to furnish the money when apples were purchased. All commissions on commission sales, and net profits on sales of apples purchased were to be equally shared. Under this agreement P. purchased the cargo of the schooner C., some 342 barrels.

After a part had been sold the sheriff under an execution in the suit of R. against P. seized, and, without removing any of them, sold 62 barrels. At the sale the sheriff, in answer to a bidder, stated that he was selling P.'s interest only, and would guarantee nothing, and he did not deliver the barrels sold to the purchaser. In an action of trover in the Saint John County Court against the sheriff for a conversion of the 62 barrels, the Judge told the jury that if they found that the apples were purchased under the agreement on the joint account of L. and P. there was a conversion, and the verdict should be for the plaintiff:-Held, on appeal, that the direction was wrong, and there must be a new trial.

Ritchie v. Law, 37 N.B.R. 36.

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preliminary examinations in taking accounts is very wide, and where in the proper exercise of his discretion an examination of a party is directed, it will not be interfered with; but he has no power to require the attendance within the jurisdiction of a defendant residing thereout, or to issue a commission naming himself as commissioner. As it appeared in this case that it would be in the interests of justice that the examination should be held before the Master personally, the Court directed a commission to issue for such examination, naming him as the commissioner to take the examination.

Connolly V. Connor, 12 O.L.R. 304 (Anglin, J.).

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PATENT FOR INVENTION.

The Patent Act, sec. 37-"Reasonable price"-Infringement resulting from breach of agreement-Infringement by inducing others to infringe.]-Section 37 of the Patent Act (R.S.O. ch. 61), provides, among other things, that the patentee must, within a certain time after the date of his patent, commence and continuously carry on the manufacture of the invention patented in such manner that any person desiring to use it may obtain it, or cause it to be made for him, at a reasonable price. For the plaintiffs it was contended that such price need not be a money price but that conditions may be imposed, the value of which may constitute part or the whole of the price for which the thing covered by the invention is sold:-Held,

that

while there is nothing in the Act to prevent parties from entering into a binding agreement embodying such conditions, the patentee cannot prescribe his own conditions as part of such price and impose them upon all persons who may desire to the invention. The "reasonable

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price" mentioned in the statute means reasonable price in money; and for such a price the purchaser is entitled in Canada to acquire the complete ownership of the thing that the patentee is bound to manufacture or permit to be manufactured in Canada. 2. The defendant H., having purchased a binder from the plaintiffs on the condition that it was to be used only with sheets sold by or under the plaintiff's authority, contrary to such conditions used in the binder sheets supplied by the defendants G. Held, that H. had not only broken his contract, but had also infringed the patent. 3. One who knowingly and for his own ends and benefit and to the damage of the patentee induces, or procures, another to infringe a patent is himself guilty of infringement. 4. The defendants G., being aware of the terms upon which the defendant H. had purchased a binder from the plaintiffs, viz.,—that only sheets that were supplied by or under the authority of the plaintiffs were to be used in it, furnished H. with sheets prepared and adapted by them for use in such binder, and to induce him to buy sheets from them they undertook to indemnify him against any action the plaintiffs might bring against him in that behalf. Held, that the defendants G. had thereby infringed the patent.

The Copeland-Chatterson Company v. Hatton, 10 Can. Exch. R. 224.

-Infringement of patent Sale for a reasonable price-Use of patented device.]— The patentee of a device for binding loose sheets sold the defendant H. binders subject to the condition that they should be used only in connection with sheets supplied by or under the authority of the patentee. H. used the binders with sheets obtained from the other defendants, contrary to the condition. In an action for infringement of the patent:-Held, that the condition in the contract with H. imposing the restriction upon the manner in which he should use the binders was not a contravention of the provisions of section 37 of the Patent Act, R.S.C. ch. 61, in respect to supplying the patented invention at a reasonable price to persons desiring to use it, and that the use so made of the binders by H. was in breach of the condition of the contract licensing him to make use of the patented device and an infringement of the patent. Judgment appealed from, 10 Ex. C.R. 224, affirmed.

Hatton v. Copeland-Chatterson Company, 37 Can. S.C.R. 651.

-Agreement to transfer-Concurrent conditions.]-Plaintiffs and defendant entered into an agreement in writing for the assignment by defendant to plaintiffs of all his rights in a gold separator of which he was the inventor, upon receiving a tain number of shares in a company to be organized for the purpose of obtaining

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a patent for the separator and for other purposes in connection therewith. Prior to the incorporation of the company a patent obtained in Canada was assigned to plaintiffs, and an action was brought claiming an injunction to prevent defendant from dealing as his own, as he claimed to do, with a patent obtained in the United States, and which was included within the terms of the agreement:-Held, affirming the judgment of the trial Judge on this point, that the obligation to transfer the invention on the one side and to allot the shares on the other were concurrent conditions, and that plaintiff's had no right to ask for a transfer of the invention until they were ready to deliver the shares. Held, also, that, in the absence of any indication of readiness or willingness on the part of plaintiffs to perform their part of the agreement, they were not in a position to come into a Court of Equity and ask for an injunction against defendant to restrain him from selling the American patent, or for a declaration as to their interest in it.

Sutherland v. Westhaver, 39 N.S.R. 52.

-Annulment of letters patent incidental to that of an agreement.]-An action for the annulment of a written agreement and for the recovery back of the consideration illegally obtained for said agreement, may be taken in the district where this action is personally served upon the defendant; the incidental asking for the nullity of the letters patent mentioned in the agreement cannot deprive the Provincial Courts of their jurisdiction in the matter.

Shawinigan Carbide Co. v. Wilson, 8 Que. P.R. 1, reversing 7 Que. P.R. 369.

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-Improvement on old device-Narrow construction-Application for writ of sequestration.]-The invention in question consisted in the substitution of an improved device for one formerly in use part of a machine, (in this case a tubular cream separator) :-Held, that the patent must be given a narrow construction and be limited to a device substantially in the form described in the patent and specification. The plaintiffs after judgment applied for a writ of sequestration to enforce compliance with injunction restraining further infringement by the defendants of the patent in question. The writ was refused.

Sharples V. National Manufacturing Company, 9 Can. Exch. R. 460.

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any independent member of the public who admitted the validity of the patent, he was allowed to shew that on a fair construction of the patent he had not infringed.

The Indiana Manufacturing Company v. Smith, 9 Can. Exch. R. 154.

-Pneumatic straw stackers-Combination -Assignment-Right of assignor to impeach validity of patent-Right to limit construction.]—(1) The assignor of a patent, sued as an infringer by his assignee, is estopped from saying that the patent is not good; but he is not estopped from shewing what it is good for, i.e., he can shew the state of the art or manufacture at the time of the invention with a view to limiting the construction of the patent. (2) In an action for infringement against the assignor of a patent for improvements in pneumatic straw stackers, it appeared that an earlier patent assigned by the defendant to the plaintiff excluded everything but the narrowest possible construction of the claims of the second patent. In the latter, speaking generally, the combination was old, each element was old, and no new result was produced; but in respect of one of the elements of the combination there was a change of form that was said to possess some merit. Beyond that there was no substantial difference between the earlier and later patents:-Held, that while as between the plaintiff and any one at liberty to dispute the validity of the later patent, it might be impossible on these facts to sustain the patent, as against the assignor, who was estopped from impeaching it, it must be taken to be good for a combination of which the element mentioned was a feature.

Indiana Manufacturing Co. v. Smith, (No. 2), 10 Can. Exch. R. 17.

-Infringement - Metal weather strips Prior American patent-Narrow construction.]-The defendants had manufactured a form of metallic weather strip in Canada very much nearer to that shewn and described in an American patent of a date prior to the Canadian patent, owned by the plaintiffs, than it was to any of the forms shewn and described in the plaintiffs' patent:-Held, that if the plaintiffs' patent was good, it was good only for the particular forms of weather strips shewn and described therein; and that upon the facts proved the defendants had not infringed.

Chamberlin Metal Weather Strip Company v. Peace, 9 Can. Exch. R. 399, affirmed, 37 Can. S.C.R. 530.

-Sale of rights-Resiliation of assignment -Condition as to user.]-The patentee who has sold his patented rights on condi-. tion that they shall be utilized by the purchaser for the common advantage of both, the seller agreeing to furnish the material necessary for that purpose, and who brings

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