CONSTITUTIONAL LAW.-Continued.
c. 16,) was not. The Statute of Frauds was not in force, not having
been passed until after the date of the charter. A mere verbal bargain
and sale of lands, therefore, was sufficient to pass the title both at law
and at equity. Article 53 of the enactments of the Council of Assini-
boia of the 11th April, 1862, did not affect the laws of property, but
applied only to the regulation of the proceedings of the court. An
agreement for the transfer of land assumed from the actions of the par-
ties, apart from any direct evidence of its existence. Sinclair v.
Mulligan
CONTRACT.—Uncertainty.—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. McCaffrey v. Gerrie . . . . . 559
· Uncertainty.-Defendant N. agreed with the plaintiff as follows :
"I hereby agree to sell to you 1,850 shares in the Qu'Appelle Valley F.
Co.'s stock for the sum of $15,000, you to pay $10,000 to the Bank of
Commerce, payments of the $15,000 to be made as follows: $5,000 by
endorsed note at four months, $5,000 by note at one year's date, $5,000
by note at two year's date, at seven per cent.. the last named notes to
be secured by a portion of the stock. Defendant N. had at this time
2,050 shares under pledge to the Bank of C. and there was little doubt
that the 1,850 agreed to be sold were understood to be a portion of
these 2,050. Almost immediately after making this agreement N. sold
the shares to his co-defendants. Upon a bill for specific performance.
Held, 1. That the contract was too indefinite in not sufficiently showing
what particular shares were to be sold. 2. And was uncertain as to the
endorsement of the notes. 3. And in not providing what portion of the
shares was to form the security for the notes. 4. The shares could not
be transferred without the sanction of the directors; and the court will
not direct a transfer when it has no power to enforce its complete exe-
cution. 5. Parol evidence to explain any of these points or show the
understanding of the parties would be admissible. Bell v. Northwood. 514
CONVERSION. See Will.
CONVEYANCE FOR BENEFIT OF CREDITORS.-Revocation.—
Delivery. Whether a conveyance for the benefit of creditors has, or has
not, ceased to be revocable, depends on the character of the representa-
tion made to the creditors as to its existence, and the manner that such
representation has been acted upon. A debtor executed certain con-
veyances, absolute in form, to two relatives and caused them to be regis-
tered.
At the same time he had prepared a document setting forth
CONVEYANCE FOR BENEFIT OF CREDITORS.-- Continued.
that the grantees were to hold the lands upon certain trusts for the
benefit of certain scheduled creditors. This document he did not exe-
cute. All the papers were retained by the debtor and neither of the
grantees saw them until after his death, when one of them executed the
declaration of trust. Held. That no trusts had been declared by the
grantor. Although registration of a deed may not necessarily imply
delivery of the deed, yet the usual certificate of the registrar of the reg-
istration of the deed is by Con. Stat. Man., c. 60, s. 31, made prima
facie evidence of the existence of the deed. Leacock v. Chambers
CORPORATIONS.-See Foreign Corporations.
COSTS.-County Court Scale -Where upon the face of the record the
action appears to be one within the competence of the County Court
the plaintiff is not, merely because the defendant resided without the
province, entitled to Queen's Bench costs. Such absence may be
ground for obtaining a judge's certificate for Queen's Bench costs, but
without such certificate only County Court costs can be taxed. Cochrane
Manufacturing Co. v. Harmer.
--County Court Scale.-Defendant absent.-Upon judgment by
default no judge's certificate for costs is necessary or proper. Monkman
v. Prittie
--Non-payment.-Rescinding order.-Plaintiff obtained an order to
set aside a judgment of non-pros. upon payment of costs.
not having been paid the defendant moved to rescind the
for payment of the costs of the former application. Held, That the
former order shonld be rescinded, but the costs of it could not be
ordered to be paid. Bailey v. Fortier.
-Set off. -Interlocutory costs may be set off against interlocutory
costs.If the right of set-off be contested the successful party may be
entitled to the costs of the application.
Real Estate Loan Co. V.
Molesworth..
-See Administrator.
--See Plene administravit.
See Discharge from custody.
COUNTER-CLAIM AFTER WRIT.-A defendant cannot counter-
claim in respect of a cause of action not matured before the issue of the
writ. A plea of counter-claim should show that it was payable before
and at the commencement of the action. Sharp v. McBurnie, . .
COVENANTS.-Joint or Several.-1. The following covenant is joint
and not joint and several: "The said mortgagors do hereby for them-
selves, their heirs, executors and administrators, covenant, promise and
agree, to and with the said mortgagee, his heirs and assigns, in manner
following, that is to say, that they, their heirs, executors, administrators
or some or one of them will pay or cause to be paid,” etc. 2. Every
contract for a joint loan is, in equity, to be deemed as to the parties
borrowing, a joint and several contract, whether the transaction be of a
mercantile nature or not. 3. Discussion as to when a court of equity
will reform a joint bond, making it joint and several. Rankin v.
McKenzie.
CRIMINAL LAW.-Under 31 & 32 Vic., c. 30, one justice may sign a
warrant of commitment. A warrant may be partly written and partly
printed. A warrant was addressed to the keeper of the common gaol
at the City of Winnipeg, instead of to the keeper of the common gaol
of the Eastern Judicial District. Held, Sufficient. The commitment
stated the offence as follows: "On or about the 14th day of May, 1886,
did embezzle the sum of $104, being the property of the Dominion
Express Company." Held. Insufficient. Regina v. Holden. . . . 579
-A statute providing that there should be "no appeal'
against a conviction, Held, Not to take away the right of certiorari.
Unless dispensed with by statute or waived there must be some pre-
vious summons or notice, to the party charged, of the hearing of the
charge against him. This may be waived by appearing, pleading and
defending. But asking an adjournment for the purpose of procuring
evidence is not necessarily a waiver. Regina v. Vrooman.
-Onus of proof as to license.— Commitment.—Conviction. — 1.
The prosecution need not prove the absence of a license. The onus is
on the prisoner to prove its existence. 2. A commitment must agree
substantially with the conviction. Formal variances are not fatal. Thus
where the defect in the conviction was in reciting that the defendant
was adjudged to pay a fine, and in default to be imprisoned and kept
at hard labor (hard labor not having been awarded), but the operative
part made no reference to hard labor, Held, To be unobjectionable upon
habeas corpus.
3. A conviction adjudged imprisonment in default of
payment of the fine and costs and charges of conveying her to the
common gaol, amounting to the further sum of dollars." Held.
Invalid, and the prisoner was discharged. Reg. v. Bryant .
-Speedy trial.—A prisoner charged with the crime of forgery
cannot be brought up before a judge of the Court of Queen's Bench
under the Speedy Trials Act. Reg. v. Scott. .
DEBT BY STATUTE.-Where an Act of Parliament casts upon a
party an obligation to pay a specific sum of money to particular persons,
an action of debt may be maintained for the amount; and that, although
a different remedy may be provided by the Act. A mandamus would
not be granted. Eastern Judicial District v. Winnipeg
DEDICATION.- Dedication of a street not having been acted
upon--the property not having been used as a street, but on the con-
trary the plaintiff's occupancy of it having been sanctioned by the City
-did not affect the plaintiff's title. Wright v. Winnipeg . .
DEED. See Conveyance.
DEMURRER. -Ore tenus.--A demurrer ore tenus can be urged at the
hearing upon the ground of want of equity, but not for multifariousness.
Real Estate Loan Co. v. Molesworth
A demurrer ore tenus will not be allowed unless there is a
demurrer on the record. Wright v. Winnipeg. . .
DISCHARGE FROM CUSTODY.—Costs.—The court has no juris-
diction to impose the payment of costs as a condition of discharge
from custody. Monkman v. Sinnott.
ESTOPPEL.-Acceptance of patent.-Plaintiff claimed title through B. to
land which the city claimed to have been owned by R. and by him dedi-
cated as a street. Previous to any patents B. had owned south of a
creek and R. north of it. By the Dominion survey a straight line was
run disregarding the sinuosities of the creek, and both parties accepted
patents according to this survey. Previous to the patents B. owned the
land in question. Under the patents R. owned it. B.'s patent was
issued in March, 1875, R.'s in May, 1878. B. sold to plaintiff in 1871
and got some papers which were afterwards given up and a new deed
executed in May, 1872. The description in this deed by mistake only
covered a portion of the land. In 1873 or 1874 B. gave plaintiff a mem-
orandum showing what land should have been conveyed, and on the
6th November, 1877, executed a proper conveyance. On the other
hand R. assuming to own the land in question prior to his patent in
August, 1874, registered a plan including this property upon which it
appeared as a street. R. shortly after obtaining his patent and in July,
1878, conveyed the land to B Held, That B. and the plaintiff as his
assignee were not estopped by the patents from setting up the true own-
ership. Wright v. Winnipeg.
By conduct.-The tenant having given a chattel mortgage of
the building, the building was about to be sold at public auction during
the term, under a provision in the mortgage. The landlord, hearing of
it, went to the place advertised, where he was informed that the wife of
the tenant was going to buy in the building at the auction. Satisfied
with this he went away before the sale, making no objection to it and
taking no steps to warn bidders of any claim that the building had
become part of the freehold, and had passed to him as such; but, on
the contrary, giving the bailiff conducting the sale a distress warrant,
under which the landlord was to be paid a portion of the proceeds of
the sale; Held, That, as against a purchaser ignorant of the landlord's
rights, the landlord was estopped from claiming the building as a part
of the freehold, and from asserting any right to restrain the removal
during the term. Upon rehearing. Held, That the lessor had until
the last day of the expiration of the term to make his election to purchase
the building; but that not having up to that time made such election
the plaintiff had no right to an injunction to prevent the removal of the
building until the expiration of the term. Gray v. McLennan. .
-By proceeding in suit.-The usual mortgage decree with a
reference as to encumbrances was made. Subsequently the master made
a report finding that the plaintiff and certain of the defendants had
encumbrances upon the whole land. This was not appealed from.
Afterwards an order was made referring it to the master to inquire
whether as between themselves any one or more of the defendants was
or were, entitied to be relieved from the payment of the plaintiff's mort-
gage, and to fix the order of liability. Held, That the defendants
were estopped from denying the priority of the bailiff's mortgage.
Renwick v. Berryman.
EVIDENCE.-Collateral agreement.-A. made an agreement in writing
with B. that he, A', would cut certain trees into cordwood and would
haul it to, and deliver it at S. station; and B. agreed to pay certain
prices, paying 80 per cent. upon delivery at the station and the balance
upon the completion of the work. Contemporaneously the parties ver-
bally agreed that if the contract price was not paid upon the completion
of the work the wood was to become the property of A., and that he
was to be at liberty to sell it. Held, That evidence of this verbal agree-
ment was admissible, even in an action to which third persons were
parties. McMillan v. Byers. .
-Corroboration.-Independently of any statute, the practice of the
Court of Equity requires that the evidence of a person seeking to estab-
lish a claim against the estate of a deceased person should be corrob-
orated. Rankin v. McKenzie.
Denial in answer.-The rule as to requiring more than one wit-
ness to overcome a denial in the defendant's answer discussed. Cowan
v. Britton.
In reply.—A plaintiff is not allowed in presenting evidence to
divide his case; either by omitting to give evidence originally upon a
material point and offering such evidence in reply; or by giving some
evidence upon a particular point in his original case and offering other
evidence upon the same point in reply. In an action for damages sus-
tained in alighting from a railway train, the defendants gave evidence
that the train was in motion when the plaintiff was alighting. The plain-
tiff, in reply, desired to contradict this evidence. There was a dispute
as to whether the plaintiff's witness had touched upon the point in mak-
ing the case. Held, That the evidence was properly excluded because
the fact that the train had stopped was a necessary part of the plaintiff's
case, and if omitted could not be given in reply. Harvey v. The
Canadian Pacific Ry. Co.
--Parol, to contradict deed.-The plaintiff sold land to the husband
of the defendant who sold to the defendant. The agreements were not
in writing. For convenience the plaintiff conveyed direct to defendant.
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