at the hearing to uphold the validity of the tax sales, which made the plaintiff's claim to costs much stronger than in the present instance.

On the other hand, in Christie v. Johnston, 12 Gr. 534, on a tax sale being declared void, the defendant was ordered to pay costs, on the ground that at the sale he stated that he purchased for the benefit of the real owner and afterwards set up title under the tax sale against him. In Knaggs v. Ledyard. 12 Gr. 320, a tax sale was set aside and the plaintiffs were given costs against the defendant, because before suit the plaintiffs had in vain endeavored to get the defendant to settle without suit; and a similar decree was made with costs in Irwin v. Harrington, because the plaintiff, before suit, had offered to repay to the defendant the taxes paid by him, for a release of any claim, and the defendant had refused to abandon. It is true that in Mills v. McKay 15 Gr. 192, Mowat, V. C., expressed the opinion that in such cases costs should, as a general rule, follow the event, as in other cases; but he based this opinion upon Knaggs v. Ledyard. From Bamberger v. McKay, 15 Gr. 328, it would appear that there ought to be a demand on the party claiming under the tax title for a. release and a refusal, to entitle the owner to file a bill in equity to have the sale declared void; but this is hardly in consonance with the received principles in this court as to the right to file a bill for the removal of the cloud occasioned by the registration of an instrument appearing to show a claim adverse to the real owner.

I think that, when a party finds municipal officers putting up lands for sale for taxes, he is justified in assuming that they are proceeding properly, especially if he has no notice of any claim to the contrary by the owner, and that he should not be compelled to inquire into the regularity of the proceedings before accepting and registering his deed; and it is only reasonable that before the true owner brings a suit to have the sale declared void, he should give the purchaser an opportunity of investigating the matter and electing to abandon any claim without suit.

In the present case there is no allegation of the defendant being a party to any irregularity or impropriety in connection with the sale.

The decree will go declaring the sale and the deed void as against the plaintiff, without costs.

REGINA EX. REL. PACAUD v. DUBORD.

Mandamus.-Delivery of papers.

Mandamus lies to compel the delivery of papers by a public officer to his

successor.

Meetings of a municipal council are prima facie regular and valid, and a person acting as clerk at these meetings is, de facto, the clerk.

A by-law requiring the presence of the reeve as a condition of the transac tion of business at a meeting, is invalid.

Unless the right of the relator to the papers is clear, a peremptory mandamus will not be ordered, but only an alternative writ.

H. M. Howell, Q. C., and J. S. Hough for plaintiff.

J. S. Ewart, Q. C., and J. Fisher for defendant.

[30th Jnne, 1885.]

KILLAM, J.-The relator, claiming to be clerk or secretarytreasurer and assessor of the Municipality of St. Norbert has moved for a mandamus to the defendant, also claiming to be clerk or secretary-treasurer and assessor of the same municipality, to compel him to deliver to the relator the books, papers and documents in the defendant's possession belonging to the municipality. The defendant has occupied these offices for a considerable time, and claims still to hold and to be entitled to hold them.

The defendant objects, in the first place, that the remedy sought is not the proper one, as the relator has other remedies. The right of a public officer of this character to a mandamus to compel the former occupant of the office to hand over the books, &c., in his possession as such public officer, is clear. See case of Sheriff of Nottingham, 1 Keb. 79; case of Viscount and Town Clerk of Nottingham, 1 Sid. 31; Rex v. Holford, 2 Barn. 350; Rex v. Wildman, 2 Str. 879; Rex v. Ingram, 1 W. Bl. 49; Rex v. Clapham, 1 Wils. 305; Anon, 2 Barn. 326.

It is then contended that the defendant is clerk, &c., de facto, and that proceedings to contest his title and oust him must first be taken, and that the dispute as to title to the office cannot be tried upon mandamus.

On the hasty examination which I have been able to make of the authorities, I incline to the belief that this view of the law

is correct, but the difficulty in the present case is as much to determine who is clerk, &c., de facto, as who is so, de jure.

It is claimed for the relator that he has been duly appointed by by-law, and that he is acting as such under the authority of the council; while, on the other hand, the meetings of the council at which the defendant is alleged to have been dismissed, the relator attempted to be appointed, and at which the relator has acted are said to have been wholly irregular, to have been irregularly called, held without the presence of a quorum, and wholly ineffectual to accomplish anything.

Prima facie, I think that I must consider the meetings valid. The only objection that clearly appears is the absence of the reeve from the meetings, a by-law appearing to require his presence to form a quorum. In view of the provisions of sections 109, 174, 175, 176, 177 & 180 of the Municipal Act of 1884, I do not consider that such a by-law can be operative. It is hardly reasonable, either, to make it the duty of the reeve to summon a special meeting, as is done by section 108, if he is to be allowed to prevent the holding of the meeting by failing to attend. This being the case, it appears to me that the clerk who is acting under the present authority of the council at these meetings and in matters directed at these meetings is the clerk, &c,, de facto, and probably also de jure, and, if this be correct, he is entitled to the writ.

The position is not, however, so clear that a peremptory mandamus can be issued. That could be done only in the clearest case, and one in which the matter is of the most extreme urgency. If, in this instance, the defendant can be the clerk de facto, while there is a question as to his being so de jure, and this disentitles the relator to proceed by mandamus before ousting the defendant, this point can still be raised on the return to the writ.

It is not correct to say that, while the defendant has a color of right, his title cannot be tested in this way. The title to office is often contested upon mandamus, but at present I think that this cannot be done in such a case as this, except at the instance of the clerk de facto.

Quod non fuit electus is now determined to be a good return upon which the validity of the election could, under the old practice, be determined by action for a false return. Regina v.

Guise, 2 Ld. Raym. 1008; Regina v. Corporation of Cornwall, 11 Mod. 174; Rex v. Harwood, 2 Ld. Raym 1405; Rex v. Williams, 3 M. & R. 402; Tapping on Mandamus, p. 73. Consequently, it can now be determined by pleading to the return and a trial of the issues so raised.

In Anon., 2 Barn. 326, on motion for mandamus for delivery of books, it being objected that, there being a contest as to the right to the office, it should not be granted, the objection was overruled as, it was said, the facts concerning the contest would properly come up on the return.

In Rex v. Holford, 2 Barn. 350, a precedent was cited by the Court, in which, where a mandamus was directed to one Kelley to deliver to one Wm. Thorney the records of the town, belonging to the steward of the court, and a return was made to it that Thorney had no right to them, this return was tried, and a peremptory mandamus was afterwards granted.

Even if the affidavits in reply can be here considered, there are really contradictions as to the facts concerning the meetings which cannot be tried upon affidavit. Though it is unfortunate that the records of the municipality should be so withheld from the council for the time that will be required fully to determine the matters in question, I can at present grant the rule only for an alternative writ of mandamus.

QUEBEC BANK v. MILLER.
(IN APPEAL.,

Bill of Exchange.-Acceptance not in firm name.

A bill was drawn upon M. & McQ. for goods supplied to M., McQ. & Co. There was in fact no such firm as M. & McQ., and the bill being taken to M. McQ. & Co., their manager, who had power to accept in the name of the firm, accepted in the name of M. & McQ.

Held. That the firm was not liable.

The acceptance of a bill, payable at the office of the drawer, carries with it notice that the acceptance is accommodation.

J. B. McArthur, Q. C., for the plaintiffs.

J. S. Ewart, Q. C., for the defendants.

M. L. R. VOL III

2

[27th June, 1885.] TAYLOR, J., delivered the judgment of the Court (a):-On the 1st of December, 1882, the defendants, Sydenham Miller, Alexander McQuarry and Robina Story, trading under the firm name of Miller, McQuarry & Co., purchased from Morrison Brothers, Toronto, a quantity of machinery under a written contract, the terms of payment being thus stated: "One half by draft with bill of lading attached at 60 days from shipment. with eight per cent. interest and exchange; balance by drafts at six and nine months, with eight per cent. interest and exchange. May draw at three months and renew, so as to mature as per agreement above

On the 15th of December Morrison Brothers drew two drafts. one at sixty days for $814.30, and another at three months for $817.60. These were discounted with the Quebec Bank at Toronto, and by the bank sent on to Brandon for acceptance by the defendants.

The machinery was not shipped until the 20th of December. On the 5th of January, 1883, the two drafts came back to Toronto, the one at sixty days having been accepted. Of the three months draft acceptance was refused. The same day another draft for $817.60, dated the 20th of December, 1882, the day on which the machinery had been shipped, and payable at three months' date, was drawn by Morrison Brothers and sent by the plaintiffs for acceptance. This draft was accepted, and is the one now sued on. The machinery on its way from Toronto to Brandon was damaged in a railway collision, and was returned to Morrison Brothers to be repaired. The railway company paid as damages a sum which paid the sixty-day draft. When the machinery had been repaired, Morrison Brothers refused to forward it to the defendants unless they gave security for the payment of the balance still due. This they refused to do, the contract not providing for any such being given. Then Morrison Brothers made an assignment for the benefit of creditors, the machinery was sold by the assignees, and the defendants have never received any value for their acceptance. The first ground of defence to the present action raised by the defendants is, that the bill was never accepted by the firm. The

(7) Present: Wallbridge, C.J., Dubuc, Taylor. JJ.