to the 15th July, 1870, no mention is made of any jury fee, nor is there any such fee imposed in the tariff sanctioned by C. J. Morris in 1872. It seems to have been first introduced by 37 Vic. c. 1, s. 5, which enacted that for each civil cause entered for trial by a jury in the Court of Queen's Bench, there shall be paid to the prothonotary of the said court at the first entering of the record the sum of $12, which sum shall be paid over to the Government of Manitoba to form a jury fund. The statute under which the particular fee now in question became payable, is the Queen's Bench Act of 1885. The 23rd section provides that in every case intended to be tried by a jury, the plaintiff in his declaration or replication, or the defendant in his plea or rejoinder, shall state that he requires a jury, otherwise the case shall be entered to be tried without a jury. The first sub-section to that section is, "A jury fee shall only be required to be paid when the record is to be tried by a jury, and the party requiring the jury shall, when filing the pleading containing the jury notice, pay the sum of $12 in stamps as a jury fee.” The 56th section provides that "the officers or clerks of the court shall see that all legal fees and charges payable * * * * are paid in stamps according to the statute respecting law stamps." And the 57th section provides that "all the fees which were formerly payable upon proceedings and otherwise in the said office shall continue to be payable until changed or altered according to law in stamps and shall continue to form part of the consolidated revenue fund of this Province, and shall be payable to the Crown in stamps as aforesaid, subject to the provisions of any statutes respecting law stamps and any orders incouncil, made thereunder from time to time."

By the 48 Vic. c. 19, s. 13, such jury fee of $12 shall be paid over to the Judicial District Board of the district in which such fee is paid. Nothing is said as to the purpose to which the. money so paid over is to be applied.

The amount paid for the jury fee is beyond all doubt an item of disbursement which, in the event of the party paying it being successful in the action he is entitled to tax as part of the costs of his suit against the unsuccessful party.

The common law did not professedly allow any costs. The first statute by which costs were given was the statute of Gloucester, 6 Edward I., c. 1, followed by the statute of Marlbridge,

52 Henry III., C. 6; though, in reality, costs were considered or included in the quantum of damages in actions in which damages were given, and even now costs for the plaintiff are always entered on the roll as increase of damages by the court. Because these damages were frequently inadequate to the plaintiffs' expenses the statute of Gloucester ordered costs to be added, hence Blackstone, vol. 3, p. 399, speaking of judgments, says, "To which costs are a necessary appendage, it being now the maxim as well of ours as of the civil law. Victus Victori in expensis condemnandus est. The question now raised, that the imposition of such a fee is a proceeding ultra vires of the Legislature of Manitoba is, to my mind, conclusively settled by the decisions of the Supreme Court in Reed v. Mousseau, 8 Sup. C. 408, and of the Judicial Committee of the Privy Council in the same case, reported as the Attorney-General of Quebec v. Reed, 10 App. Cas. 141, and also by the decision of the same court in the Attorney-General of Quebec v. The Queen Insurance Company, 3 App. Cas. 1,090. The argument that inasmuch as a party can, if he chooses, have his case tried by a judge without a jury, so that the payment of the fee in question is not compulsory but only a fee which he may or may not pay at his option, so it cannot be called a tax, has, to my mind, no weight. That it is a fee payable for the privilege of having the case submitted to the decision of a jury makes no difference. The argument seems completely disposed of by Mr. McCulloch in his work on Taxation when he says, at p. 1, A tax may be direct or indirect. It is said to be direct when it is taken directly from property or income, and indirect when it is taken from them by making individuals pay for liberty to use certain articles or exercise certain privileges."

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This definition has the approval of so distinguished a judge as Mr. Justice Strong, of the Supreme Court, who said in Reed v. Mousseau, 3 Sup. C., at p. 418, "Taxes on legal proceedings are invariably classed by scientific writers on taxation and political economy as indirect, and even though a tax may not be indirect in the sense that the burden of it is ultimately to be borne by a person other than he who originally pays it, it is clearly so according to the well founded definition of Mr. McCullough." The learned judge then cites the passage which I have just quoted.

In the Attorney-General of Quebec v. Reed, 10 App. Cas. 141 the judicial committee of the Privy Council made reference to Mr. Mills' work on political economy, quoting the passage in which he says that a direct tax is one which is demanded from the person who it is intended or desired should pay it, and indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another. Their Lordships have held that taking the first part of that definition, it could not be said that a stamp duty in the nature of a fee payable upon a step or a proceeding in the administration of justice is not one which is demanded from the very persons who it is intended or desired should pay it. "It must, unless in case of the last and final proceeding after judgment, be paid when the ultimate termination of those proceedings is uncertain, and from the very nature of such proceedings, until they terminate, as a rule, and speaking generally, the ultimate incidence of such a payment cannot be ascertained.

The fee in question is one of exactly similar character to that with which the judicial committee had to deal in The AttorneyGeneral of Quebec v. Reed, and the judgment then delivered by the ultimate Court of Appeal from this court is binding on judges of this court as an authority. It must therefore in my judgment be held that the imposition of the fee in question was ultra vires in the Legislature of Manitoba, and that the plea of the defendant, stating that he requires a jury, filed without the $12 in stamps being affixed cannot be objected to; the summons to strike out the jury notice must be discharged, but it should be so without costs.

MCARTHUR v. DEWAR.

Mechanic's lien.-Sub-contractor.

Contractor's failure to com

plete.-Public buildingz.-Trust property.

Under a building contract the proprietor (the city of Winnipeg) was to pay 85 per cent. of the value of the work and materials as the structure progressed, and the balance of 15 per cent. upon the whole of the work being completed to the satisfaction of the City and acceptance of the work by the corporation. The contractor failed to complete the work having at that time received payment to the extent of 85 per cent.

Held, That a sub-contractor had no lien in respect of the reserved 15 per cent. During the progress of the work another contract was made between the proprietor and the contractor for certain extra work. In this contract there was an agreement for payment of 85 per cent. during the progress of the work; nothing was said with reference to the 15 per cent., but there was a general provision "that in all other respects said original contract shall not be varied, altered or changed, but be and remain in full force and effect."

Held, That the 15 per cent. was payable upon completion of the extra work, and this having been completed was available to the sub-contractor.

By the terms of the contract any materials placed upon the ground were to be considered in the possession of the city, and were to be included in the progress estimates.

Held, That a material-man was not bound to show that his materials were used in the building-delivery upon the ground for the purpose of being used was sufficient.

Held, That the city hall in Winnipeg might be sold under execution against the city, and was therefore subject to sale in pursuance of the Mechanics' Lien Act.

The land upon which the hall was erected was granted to the city by a deed which provided that it was to be used only for the purpose of the erection thereon of a market building and for other public purposes, and that if the city should use the lands for any other purposes and uses than those connected with the public purposes and uses of the corporation the lands should revert to the grantors their heirs and assigns.

Held, That there being some estate in the lands vested in the city, the plaintiff was entitled to a lien to the extent of such estate and to a sale of it.

S. Blanchard, Q. C., for the plaintiff.

D. Glass for defendants.

[28th November, 1885.]

KILLAM, J.-This suit is brought to enforce a lien claimed by the plaintiffs under the Mechanics Lien Acts upon lands of the defendant, the City of Winnipeg. The defendant Dewar con

tracted with the defendant, the City of Winnipeg, to erect upon these lands a building to be used for civic purposes according to certain plans and specifications; he was by his original contract to provide and deliver all the material required by the specifications, with all the tools, tackles, apparatus and other requisites for the work, and to furnish all the labor necessary, and to "erect, build, complete and finish in the most workmanlike and substantial manner under the direction, and to the satisfaction of the architects," &c., the whole building specified; the work, except excavation, was not to be begun before the first day of April, 1884, at which time it was "to be proceeded with with all due diligence and despatch and in all respects fully completed and finished and delivered up and ready to be occupied on or before the first day of January, A. D. 1885," it being distinctly provided that time was to be of the essence of the contract; he agreed that if, by reason of any act or deed on his part, the city corporation should be led to believe that the erection and completion of the work was being retarded unnecessarily, the corporation, as often as it might deem necessary, might furnish work and materials and employ such labor as it might deem necessary to facilitate the completion of the building, and the costs and expenses thereof were to be borne by and chargeable to Dewar ; also that if Dewar should fail, in the opinion of the architects or superintendent in charge, to make satisfactory progress in the building and completing of the works so as that the works would not be completed by the time provided, then it should be lawful for the city corporation to give him twenty-four hours notice in writing of their intention to take the works out of his hands and complete the same, and the costs thereof should be chargeable to and paid by him; also that if Dewar should fail to complete and deliver over the buildings on the first day of January, A.D. 1885, according to the terms of the contract, it should be lawful for the corporation to deduct from any moneys due to Dewar a sum equal to twenty-five dollars for each and every day that the completion and delivery of the works was delayed beyond the time mentioned in this contract, such sum to be as liquidated damages and not by way of penalty. The city corporation agreed for and in consideration of the erection, building and completion of the works to be done," under the contract by Dewar, “in the manner and time aforesaid," to pay him the sum of $80,000, payments to be made fortnightly as the work pro