the Court of Queen's Bench. Whether, then, the adjudication was, that the Court of Assize and Nisi Prius, at which the cause was entered for trial, had no jurisdiction for the trial thereof, or that the Court of Queen's Bench had no jurisdiction to entertain the suit, there is yet nothing to show that the suit mentioned in the bond was determined by the adjudication of the court before which it was in due course brought, or that such court or the court in which it was commenced had no jurisdiction to entertain the suit. Judgment must therefore be entered for the defendants upon this demurrer. MCCAFFREY v. GERRIE. Contract.- Uncertainty.—Terms to be Fixed by a Third Party. The defendant gave to the plaintiff the following letter: "Dear Sir.- If you lend to T. B. R. of this city, the sum of $4,000, on lot 85, in block 4. * * * I will guarantee to take the property at any time for the amount of the mortgage." Held. 1. That the contract was not uncertain because the terms of the loan were not agreed to. If the plaintiff and T. B. R. agreed upon the terms without collusion as against the defendant he would be bound. 2. The contract was not lacking in mutuality because the time of performance was left to the option of the plaintiff. 3. The Statute of Frauds does not prevent the proof, by parol, of the performance of a condition precedent. A. Monkman and E. H. Morphy for plaintiff. J. D. Cameron for defendant. [30th June, 1886.] KILLAM, J.—I find that the contract in question was duly signed by the defendant, and I cannot accept his statement that he signed it under a misapprehension, thinking it to be only a valuation. The consideration for the contract was the advance to Rutledge, not an agreement by the plaintiff to sell to the defendant, as is usually the case in contracts of purchase and sale. I think that the evidence sufficiently establishes an acceptance by the plaintiff of the defendant's offer, and that in this respect there was a completed contract. I interpret the contract to be one by the defendant, in consideration of the advance to Rutledge, to purchase the property in question of the plaintiff under his mortgage, upon request of the plaintiff, at the amount then to be due upon the mortgage. The chief difficulty I have had in its interpretation has been whether by the promise to take the property, it was meant that he would buy of the plaintiff or of Rutledge; but when we consider the circumstances, that what was wanted as additional security for an advance was a binding contract, and that the agreement to buy of Rutledge would be of no avail to the plaintiff unless Rutledge should then be willing to sell at such a price as would realize sufficient to pay off the mortgage, it appears that the alternative must be rejected. The only mode in which the plaintiff could give a title would be under and by virtue of his mortgage, and such must have been the intention. The advance had not been made, and the mortgage had not been executed when the defendant signed the memorandum. It appears to me that it was left to the plaintiff and Rutledge to agree upon the terms of the advance. If they did so bona fide, and without collusion as against the defendant, he was bound by their agreement which would thus fix the price of the land. An agreement to sell and purchase land at a price to be fixed by another is valid and will be enforced in equity, if the price has been fixed by the party agreed upon. Emery v. Wase, 5 Ves. 846; Cooth v. Jackson, 6 Ves. 12; Blundell v. Brettargh, 17 Ves. 232; Gourlay v. Duke of Somerset, 19 Ves. 429; Walker v. Eastern Counties Railway Co., 6 Ha. 594; Harding v. Metropolitan R. Co., L. R, 7 Chy. 154; Darbey v. Whitaker, 4 Drew. 140; Smith v. Peters, L. R. 20 Eq. 511. In Milnes v. Gery, 14 Ves. 408, the Master of the Rolls said, "Upon the principle that a fixed price was an essential ingredient in a contract of sale the ancient Roman lawyers doubted whether an agreement that did not fix the price was at all binding. Justinian's Institutes and the Code state that doubt and resolve it by declaring that such an agreement should be valid and complete when and if the party to whom it was referred should fix the price; otherwise it should be totally inoperative; quasi nullo pretio statuto; and such clearly is the law of England." In Fry on Specific Performance, 2nd Ed., p. 151, it is said, "Where the contract specifies a way of ascertaining the price which is essential, the contract is conditional till the ascertainment, and is absolute only when the price has been determined." In Langstaff v. Nicholson, 25 Beav. 160, an agreement to purchase property at £3,000, clear of all and every expense, and the further sum of 20 per cent. on any sum the property might realize above that sum at the sale by public auction, advertised to take place on a certain day, was held enforceable against the purchaser, for the price of £3,000 the property not having been put up for sale at auction at the day named or on any other day. It was considered to be left at the option of the purchaser to offer it for sale at auction or not, and that if it should not be so offered the agreed price was the £3,000. In the London Guarantee Co. v. Fearnley, 5 App. Cas. 920, Lord Watson said, "Although the proviso does not absolutely fix the time of performance it provides that the insured shall proceed whenever required by the company, so that the contract leaves it entirely to the company to determine at what time criminal proceedings shall be initiated. Now it appears to me that when that which is left indeterminate in a contract, whether it be time or place or quantum, becomes fixed and ascertained in the manner stipulated by the contracting parties, it must be treated just as if it had been an original term of the contract." The latter remarks serve to show that the contract now in question was not the less enforceable because the time of performance, as well as the exact price, was not specially fixed by it. That the time was left to the option of the plaintiff did not make it lack mutuality. The plaintiff entered into the contract and executed it on his part. It was not as if the consideration for the defendant's contract was intended to be an agreement to sell to him the land, in which case there would be no contract until the plaintiff should have positively agreed that he would sell. Upon this point I would refer to Chesterman v. Mann, 9 Ha. 206; Palmer v. Scott, 1 R.&My. 391; Weeding v. Weeding, I J. & H. 424. The Statute of Frauds is no bar to the suit, the whole contract having been evidenced by a writing signed by the defendant. It is not necessary that evidence of the performance of a condition precedent, such as the fixing of the amount by the making of the mortgage, or the demand to carry out the purchase, should be in writing. The request for the completion of foreclosure proceedings should not be considered a variation of the original contract; it was merely a request for completion of the title in a certain way. This request was complied with, and the defendant is left without excuse for non-payment. The decree for specific performance should be made, the plaintiff to pay the full amount of principal and interest due upon the mortgage until payment, with costs of this suit. DULMAGE v. DOUGLAS. Law Stamps. Since the Act 49 Vic., c. 50, the statutes relating to stamps upon legal proceedings are no longer ultra vires. The imposition of fees by law stamps is undoubtedly an indirect tax. Under s-s. 2 of s. 92 of the B. N. A. Act the Provincial Legislature has not the power to impose such tax in order to raise a revenue for the general purposes of the Province. The Act of the Manitoba Legislature 49 Vic., c. 50, may be considered within the scope of s-s. 14 of s. 92 of the B. N. A. Act, and not conflicting with the express provisions of s-s. 2. P. A. Macdonald for plaintiff. C. P. Wilson for defendant. J. A. M. Aikins, Q. C., for the Attorney-General. [13th September, 1886.] DUBUC, J.-The defendant took out a summons to compel the plaintiff, who resides out of the Province, to give security for costs. On the return thereof, the plaintiff opposed it on the ground that the summons had not legal stamps affixed to it as required by the statutes. The defendant answers this objection by saying that the statutes requiring said stamps are ultra vires of the Provincial Legislature. The affixing of law stamps on civil matters and proceedings coming before the courts is provided by Con. Stat. Man. c. 8, sections 7 to 23 both inclusive, and c. 31, sections 42 and 43; these last two sections being, with slight modifications, re-enacted in 48 Vic., c. 13, sections 56 and 57. These statutes provide that all the fees payable in stamps to be affixed on legal proceedings shall form part of the consolidated revenue fund of the province. S. 11 of c. 8. Con. Stat. Man. enacts that every matter or proceeding which is not stamped as provided shall be absolutely void for all purposes whatsoever. The question was raised in Plummer Wagon Co. v. Wilson, 3 M. L. R. 68; which came before the full court in Trinity Term, 1885, and the court held that the imposition of fees on legal proceedings under the said statutes was ultra vires of the Manitoba Legislature. But since that decision, the Legislature, at its last session, passed an Act intended to meet the difficulty, intituled "An Act to provide for the maintenance of the Administration of Justice in the courts and of the court houses and gaols in Manitoba." Section 1 is as follows: "The fees and charges on legal proceedings, collected and paid to, and the proceeds of the sale of all law stamps received by the Treasurer of the Province under the authority of the Acts of the Legislative Assembly of Manitoba, respecting law stamps, or of any other Act or Acts, order in council or proclamation, shall not pass into the general revenue of the province or become a part thereof, but shall be and are hereby created special funds, to be respectively called 'The Administration of Justice Fee Fund,' and The Building Fund.' The other sections provide that the Treasurer of the Province shall open an account with the said "Administration of Justice |