when it was a fair subject of discussion and consideration whether one course or another was the right one, he intimated an opinion that the objection of unreasonableness ought to prevail where the judgment of the arbitrator went the length of destroying the right of one of the parties, though the parties had never authorized him to decide that any one of them had no right, but only agreed that he should determine the mode in which their rights and interests should be regulated.

*

*

The general doctrine I take to be established by the cases is that the Court will not refuse specific performance on the ground that the price fixed was unreasonable. In a case which seems to present some analogy, Collier v. Mason, 25 Beav. 200, it was observed by the Master of the Rolls, in giving judgment, p. 204: "It does appear to me a very high and perhaps an exorbitant valuation, but I cannot say it amounts to evidence of fraud, mistake, or miscarriage. Here the referee has fixed a price, which is said to be evidence of miscarriage, but this Court, upon the principle laid down by Lord Eldon, must act on that valuation, unless there be proof of some mistake. or some improper motive, I do not say a fraudulent one; as if the valuer had valued something not included, or had valued it on a wholly erroneous principle, or had desired to injure one of the parties to the contract, or even, in the absence of any proof of any one of these things, if the price were so excessive or so small as only to be explainable by reference to some such cause." But that case is no authority for the proposition that any of the grounds mentioned can necessarily be set up by way of answer to a bill for the enforcement of the award. It was a case of an agreement to sell at a price to be named by another, and where the arangement virtually was that the referee should exercise his judgment upon a mere view of the premises. Such cases appear to be very distinguishable from one like the present, where the defendants have, by virtue of the powers conferred upon them by the Act of Parliament, taken possession of the land of the plaintiff, who is com

pelled to accept such price as arbitrators may choose to give.

But it does not seem to be necessary to pursue this enquiry further, because I do not think that the evidence establishes any such case of misconduct on the part of the arbitrators as would render it proper to set aside this award, much less to hold it to be a complete nullity. The price awarded may strike us as enormous, but there was evidence which would have warranted the arbitrators in honestly giving the plaintiff so large a compensation. The amount, therefore, does not in itself point to the presence or operation of a corrupt motive or intention on the part of the arbitrators. The charge that they proceeded upon a wrong principle, or included in their estimate matters not the subject of compensation, is not supported by the eviThat of collusion between the plaintiff and the arbitrators wholly fails.

dence.

sary

There is only one other point to which it seems necesto refer. It was strenuously argued that the questions in controversy became res judicate by the decision of the Chief Justice of the Queen's Bench. I incline to think that the learned Judge had no power to review the finding of the arbitrators upon a petition presented under the Act of the Ontario Legislature, 38 Vic... ch..15. These lands were, as I understand, expropriated under the authority of the Act of the Dominion, by a new charter was in effect granted to these defendants; and it admits of grave question whether an Act of the Ontario Legislature could extend to or affect proceedings so taken. I content myself, however, with directing attention to this point. In the view that we take of the points discussed, and in the absence of argument, which might throw an entirely different light upon this question, it would not be proper to express any positive opinion.

which

I think the appeal must be dismissed, with costs.

Appeal dismissed.

MORTON V. NIHAN ET AL.

Insolvent Act of 1875-Fraudulent mortgage-Evidence-Burden of proof. The bill was filed by the assignee in insolvency of one T., to set aside a mortgage given by him shortly before his insolvency, alleging that the defendant T. N., who was endorser of a note for $2,000 made by T., procured the mortgage in question for that amount to be made in the name of his brother J. N., and that he gave J. N., the $2,000 with which the note was retired. T. N. swore that he paid J. N. the money in discharge of a debt due by him to J. N. and P. N., another brother. J. N. also swore that the mortgage moneys belonged to him and P. N., but their evidence was uncorroborated, and P. N. was not called. Held, reversing the decree of PROUDFOOT, V.C., that under the suspicious circumstances which surrounded this case, the onus was wholly upon the defendants, to prove not only that a debt was due from T. N. to J. N. and P. N., but that the money received by them in payment thereof had been honestly advanced to T. on the security of the impeached mortgage, which the evidence, more fully set out below, failed to establish.

The rule laid down in Merchants' Bank v. Clarke, 18 Gr. 594-that transactions of this kind should not be held sufficiently established by the uncorroborated testimony of the parties thereto-approved of.

THIS was an appeal from the decree of Proudfoot, V. C., dismissing the plaintiff's bill.

The plaintiff, who was the assignee in insolvency of John Titterington, filed his bill on the 19th day of November, 1878, alleging that shortly before the insolvency, which occurred on the 22nd of June, 1878, the defendant Thomas Nihan, who was liable as endorser on a note of the insolvent's for $2,000, knowing the embarrassed circumstances of Titterington, and that his insolvency was imminent, devised a fraudulent scheme to procure payment of the note, and relieve himself from his liability thereon: that in pursuance of this scheme the said Thomas Nihan procured a mortgage to be made for $2,000 on real estate of the insolvent, in the name of his brother and co-defendant John Nihan, and then handed the money to his said brother, who retired the note before maturity. The plaintiff alleged that the mortgage was Thomas Nihan's mortgage, though taken in his brother's name, and was fraudulent and void as against the creditors of the insolvent, and prayed that it should be set aside and cancelled.

The defendant Thomas Nihan by his answer set up that the moneys advanced on the mortgage, and applied in payment of the note, were the moneys of his brothers, John Nihan and Patrick Nihan: that he was an accommodation endorser of the note, and that shortly before it became due the insolvent applied to him for an advance of $2,000 to enable him to pay the note: that he refused to make the advance, but applied to his brother John Nihan to do so, and that John Nihan agreed to advance the money if Thomas would pay him $2,000 on account of an alleged indebtedness existing between Thomas and his brothers John and Patrick. He further alleged that he paid the 82,000 to John on account of such alleged indebtedness, and that John then advanced the said sum to the insolvent on the security of the mortgage.

In his answer John Nihan alleged that the moneys advanced on the mortgage were the property of himself and his brother Patrick, and that he held the security in trust for himself and his said brother.

Both defendants denied that they knew, or had any reason to know or believe, that Titterington was' in embarrassed circumstances or contemplated insolvency, and denied all charges of fraud imputed to them by the said bill.

The note in question was dated the 8th day of February, 1878, and became due on the 11th day of June, 1878. On the 30th day of May, 1878, the mortgage was executed, and on the same day a cheque for $2,000 was given by Thomas Nihan to John Nihan, who cashed the same, and handed the proceeds to his solicitor, who paid the note therewith. The writ of attachment in insolvency was issued on the 22nd day of June following.

The case was heard at the St. Catharines sittings, in the autumn of 1879.

W. Cassels for the plaintiff.

James Maclennan, Q.C., for the defendants.

The following judgment was given at the hearing by PROUDFOOT, V.C.—I have had a great deal of difficulty in coming to any conclusion upon the evidence that has been given to-day upon the different points that have been discussed.

There is no doubt that Thomas had a very strong interest in shewing that there was a debt due from him to John and Patrick, because it was only through the operation of that debt that he was to be relieved from his responsibility as endorser upon the note which was in the bank and made by the insolvent.

There is then the fact that there seems to have been no books kept by these parties. Thomas kept no books shewing the amount due to him, and John kept no books-no proper books, for practically the books produced are but memoranda of the amounts that they had advanced to Thomas, or were due by Thomas.

There is also the fact that these are all relatives-all brothers; but, in opposition to all that there is the sworn evidence of the two brothers of the existence of this debt. There are many circumstances which might have been displaced by the plaintiff had he chosen to do so, or were the facts such as to warrant him in shewing that that evidence was incorrect. If there had been no arbitrationhad there been no sum due from the Government-had the money not been paid Patrick, or Patrick not paid it to Thomas-all these circumstances would have gone to shew the incorrectness of the evidence given to-day. But none of them have been touched, and the only, and I must admit it is a very suspicious circumstance, is that the defendants have not chosen to call Patrick, and I think that one side or the other ought to have called him, because it places me in very great uncertainty as to what conclusion ought to be arrived at; but I cannot say that the onus in that case was upon the defendants. They have proved by two witnesses the existence of a debt, and if plaintiff hoped by the examination of Patrick to shew that there was no such debt, then he might have called him; but there is the