What then, in the first place, appears to me to be the law of England is that the rate of interest is to be a fixed rate, applicable to all cases, not dependent in a particular case upon the arbitrary or even upon the sound discretion of executors or of the court ; that it should not vary with a variation of the income realized in different cases from difference of investment, or with the variation of the ordinary rate of interest caused by the greater or less demand for or supply of money in the market during different periods; that it is a rate to be fixed and determined upon by the court after a careful consideration of the circumstances which should govern its opinion. I do not, however, think that it is necessarily to be the same rate as has been fixed upon by the Court of Chancery in England as the rate which, under the circumstances there existing, has been determined to be the proper

rate.

Upon this point I think that we can find it instructive to consider the decisions and the practice adopted in similar cases in the old Province of Upper Canada. I have learned from my brother Taylor, whose long experieuce as Master of the Court of Chancery in Ontario is well known, and I can say from my own experience, that the ordinary rate of interest allowed in that court upon legacies is 6 per cent. I have found no case reported from that court directly allowing that or any rate upon legacies, but I have found some which appear analogous.

In Fielder v. O'Hara, 14 Gr. 224, a widow, administratrix of the estate of her deceased husband, allowed her second husband to use the funds of the estate. Vankoughnet, C., in giving judgment, said "Let simple interest at 6 per cent. the rate fixed by law as the normal rate, be charged and the report altered accordingly." In McLennan v. Heward, 9 Gr. 188, the same learned judge, then Vice-Chancellor, said, "I do not know what rate of interest other than 6 per cent. can be charged in the absence of any arrangement by Crookshank with the intestate for a lesser sum and of any evidence shewing any other usual rate."

In Landman v. Crooks, 4 Gr. 353, a suit brought for an account of moneys received by the defendant as agent of the plaintiff, Esten, V. C., ordered the account to be taken with interest at 6 per cent. and annual rests. Upon rehearing, the Chancellor, W. H. Blake, referring to the case of Carmichael v. Wilson, 4 Bligh, N. S. 145, used the following language, "At

that period a special case was necessary to charge executors with interest beyond 4 per cent. Where the funds had been employed in trade, trade interest-that is 5 per cent.-was allowed; but that circumstance was not of itself sufficient to warrant the court in charging compound interest." "The interest charged (5 per cent.) is equivalent to the ordinary rate-4 per cent.—with half yearly rests. But in this country the highest legal rate of interest is the ordinary rate. Money is never allowed at a less rate. This much, at least, is evident, that an executor guilty of mere negligence would be charged in this country with interest at 6 per cent.—that is the rate which an ordinary investment would produce." Spragge, V. C., at the same time, said, "I agree with the remarks made by the Chancellor upon the difference between England and this country, arising out of the annual value of money there being less than the full legal rate of interest, while here 6 per cent. is not more than the real annual value. It results from this that there is here no other mode of charging an accounting party with anything beyond the ordinary value of money than by charging him with rests. If, indeed, 5 per cent. is about equal to 4 per cent. with rests, and 4 per cent. is the annual value of money, then charging 6 per cent. here with rests is going no further than charging 5 per cent. without rests in England." Esten, V. C. concurred and the decree was affirmed.

In Wiard v. Gable, 8 Gr. 458, Esten, V. C., said, "In this country we have not separate rates of interest applicable to different cases. An executor or trustee guilty of negligence, that is omitting to invest moneys simply, will be charged with interest at 6 per cent., and he certainly ought to be visited with a severer penalty when he has committed a breach of trust or has applied the moneys with which he has been entrusted to his own use. No other penalty can be inflicted on him in such a case than to make him pay compound interest, and this, I think, should be the rule in this country."

It is to be noticed that these decisions do not depend upon statute, but follow the analogy of the statute fixing the rate of interest for other purposes; and that they practically, for the purposes of the Court of Chancery, make 6 per cent. equivalent, for Upper Canada, to 4 per cent. for England.

M. L R. VOL. III.

5

If six per cent. be considered the proper corresponding rate here, it may probably be said that this is much lower than the rates at which money is lent upon real estate securities, or at which it can be obtained on the best mercantile paper at the banks. This was undoubtedly true in Ontario long after the decisions which I have cited, and indeed I doubt if at the present time money is very frequently lent there at as low a rate as 6 per cent. on the best of security. On the other hand we know that large sums of money have in this Province for years past been kept on deposit at the Dominion Government Savings Bank in this city and at the chartered banks, at rates much lower than 6 per cent. The rate which should be adopted for interest upon legacies, and in connection with the investment of trust moneys should be as low as the rates obtainable for perfectly safe and unimpeachable investments. Bearing these circumstances in mind, with the fact that it has for years been the practice in this court to allow interest at the rate of 6 per cent. where it has been allowed independently of express contract, considering also how largely similar are our circumstances to those that existed when these decisions were had in Upper Canada, and to those which led the Legislature of Canada to fix upon 6 per cent. as the legal rate of interest, I think that I can fix upon no other rate as the one proper to be allowed.

I do not think that the taking of evidence upon the value of money would be of any service upon this application, as I think that for such a purpose I can take notice and have a knowledge of what could be thus proved. If I had looked upon the matter exactly as I do now when I suggested a further argument, I would probably have suggested the question of the rate of interest to be allowed upon pecuniary legacies as one for argument, but in thinking over the matter carefully I cannot think that my view of the question would have been changed upon such arguThe direction which I shall give can only be one to protect the executors. The parties, if they object to my view of the matter, must be left in a position to contest respecting their rights among themselves, either by special suit or upon an application for moneys which I shall direct to be paid into court. Notwithstanding this, I have considered all the questions raised as fully, and have come, I believe, to the same conclusion as I should if the matter had come before me in a suit in which I

ment.

would necessarily bind all the parties by my decision; though I feel that I am obliged to advance upon untrodden ground, and to determine, for the time being, a question that can hardly be deemed to be fully settled in this Province until it shall come before the court in banc.

I am of opinion that the rate of interest to be allowed to the widow must be 6 per cent. to be computed upon the £1,000.

The only remaining question is as to the time from which it should be computed. The usual rule is that interest upon legacies, for payment of which no particular time is fixed by the will and upon which there is no direction for payment of interest in the will, is to be computed from the expiration of a year from the testator's death. Sitwell v. Bernard; Webster v. Hale, 8 Ves. 410; Bedson v. Maude, 6 Mad. 15. If the legacy is to a child or to an infant towards whom the testator has placed himself in loco parentis, it is considered that a provision for maintenance is intended, and interest is allowed from the death of the testator. Wilson v. Maddison, 2 Y. & C. C. C. 372; Beckford v. Tobin, 1 Ves. Sen. 310; Crickett v. Dolby, 3 Ves. 13; in re Richards, L. R. 8 Eq. 119. This presumption, however, is overruled by another provision for maintenance in the will. Hearle v. Greenbarh, 3 Atk. 715; Long v. Long, 3 Ves. 286, note. The exception is confined to legacies to infants and is not extended to adults or to the widow of the testator. Raven v. Waite, 1 Swanst 553; Wall v. Wall, 15 Sim. 513; Stent v. Robinson, 12 Ves. 461.

The executors should be directed to sell at once the twentysix shares of stock. They should at once pay to Mrs. Logan out of any moneys in their hands derived from dividends upon the stock sufficient to make, with the sums already paid, the amount which she would be entitled to by computing interest upon the £1,000 at 6 per cent. from the expiration of one year from the death of the testator. Any excess over this, or if more than this has been paid to her any moneys in their hands from dividends upon this stock should be at once paid into court. The payment into court may be made under "The Trustee Relief Act," 10 & 11 Vic. c. 96.

The costs of all parties to this application should be paid out of the general estate of the testator. If there be not sufficient for the purpose, after providing for the interest and the £1,000

and other legacies and charges yet unpaid, the parties should have liberty to apply further as to the fund from which the costs should be paid. If considered necessary, the order may provide that any of the parties may bring any action or suit to take any other proceeding to determine their rights as among themselves, except that no proceeding is to be taken against the executors or any of them for anything to be done under the order.

PLUMMER WAGON CO. v. WILSON.

Law stamps.-Jury Fee.

The imposition of a fee of $12 in stamps upon filing a jury notice is ultra vires.

The defendant filed the usual jury notice without affixing the usual $12 in stamps. A summons having been taken out to set aside the notice upon this ground it was adjourned to come before the full court.

P. A. Macdonald, for the plaintiff.

C. P. Wilson for the defendant.

TAYLOR, J.-By the Consolidated Statutes of Manitoba, c. 8, provision was made that stamps shall be issued from the office of the Provincial Treasurer of the Province for the payment of all fees whatsoever payable upon any civil matter or proceeding to the prothonotary, clerk of the Crown, and certain other named officials. The stamps so issued were by section 19, distinguished into "Consolidated Revenue Fund Stamps" and "Law Society Stamps," and the same section provided that the money received by the Provincial Treasurer in respect to the consolidated fund stamps shall go into, and form part, of the consolidated revenue fund of the Province. By 47 Vic. c. 18, all acts or parts of acts in virtue of which Law Society stamps are required to be affixed to or on any matter or proceeding in any court or before any judge in this Province are repealed. In the table of costs for the quarterly court which existed prior