Judgment. tress, we must treat them as having not shewn that the Street, J. insurance moneys were insufficient to satisfy the arrears.

Upon the motion for injunction an affidavit and statement were filed on behalf of the defendants, purporting to shew in what manner they had applied the insurance money which they had received. In this statement they charged the mortgagors with the overdue instalments of principal and interest in separate columns, deducted the insurance money from the $200 overdue principal, and brought down a balance of $125 at the credit of the mortgagors in the "principal" column of the statement, and a balance of $224 at the debit of the mortgagors in the "interest" column, after applying the $48 and the $4 paid, both on account of interest. They thus shew $125 in their hands out of the insurance money which they have not applied at all.

In the face of this statement, I do not think they can now be allowed to say that the whole principal was overdue by the terms of the mortgage, because of the defauit in payment of the instalments; and that therefore they have the right to apply the insurance money upon the overdue principal and distrain for the overdue interest. They have made their election, so far as the effect of the default and the application of the insurance money is concerned, not to claim the whole principal as having become due by reason of the default. In the sixth paragraph of their statement of defence they state again their position in a way which is inconsistent with their present suggestion that the whole principal was then due.

Under the 4th sec. of ch. 102, R. S. O., " An Act respecting Mortgages of Real Estate," the rights of mortgagor and mortgagee are in certain respects defined with regard to the proceeds of insurances upon mortgaged buildings which have been destroyed by fire. By the 1st sub-sec. the mortgagee is entitled to require the mortgagor to apply any insurance moneys which he has received, in rebuilding; and by the 2nd sub-sec. a mortgagee may require that all money received on an insurance be applied in or

towards the discharge of the money due under his mort- Judgment. gage.

The result of these two sections seems to be that when a mortgagor receives insurance money he may be compelled by the mortgagee either to rebuild with it or to allow the mortgagee to receive it, at his option; and that when a mortgagee receives insurance money himself, he has the right to apply it upon his mortgage.

In Corham v. Kingston, 17 O. R. 432, the Chancellor has construed the 2nd sub-sec. as compelling a mortgagee who applies it on his mortgage at all, to apply it first on overdue instalments, whether of principal or interest; and I follow that construction. The result here is that the defendants, having received the insurance money, having declined to devote it to replacing the buildings which were burned, and having elected without any special stipulation to apply it on their mortgage, must apply it as the Act requires, viz., in payment of arrears. When so applied, it leaves no arrears, and the proceedings under the power of sale and by distress warrant were unauthorized and illegal.

The damages have been assessed by the learned Chief Justice at $600. I think this is a somewhat larger sum than I should have put them at, but I am unable to say that it is excessive.

The mortgagors have had their farm offered for sale by the defendants at public auction when there was nothing due upon the mortgage. It is plain from the evidence that they have been put to great worry and annoyance; their whole possessions have been illegally distrained ; they paid $45 for possession money, and were obliged to raise $100 by chattel mortgage to pay into Court, to prevent the sale of their chattels; they were prevented by the proceedings under the power of sale from putting in some of their crops, owing to their uncertainty as to whether they would be allowed to reap them. It is evident that these are wrongs which entitle the plaintiffs to recover more than the mere money loss which they have given rise to: Bayliss v. Fisher, 7 Bing. 153; Brewer v. Dew,

Street, J.

Judgment. 11 M. & W. 625; Doss v. Doss, 14 L. T. N. S. 646. The
Street, J. $600 damages should be apportioned as follows:

To the plaintiffs Leonard Edmonds and wife.. $300
To the plaintiff Leslie Edmonds

300

$600

The motion should be dismissed with costs, and judgment should be entered for the plaintiffs as above upon their claim with costs; and the counter-claim should be dismissed with costs.

[QUEEN'S BENCH DIVISION.]

REGINA V. MENARY.

Justice of the peace-Summary conviction-" Liquor License Act," R. S. O.
ch. 194-Offence against sec. 49-Arrest in lieu of summons-Remand
by one justice only-Powers of justices under sec. 70-Distress warrant
-Imprisonment upon non-payment of fine and costs-Admission of no
distress-Costs of conveying to gaol-Power to amend conviction—
Evidence-Saving clause, sec. 105.

The defendant was convicted before two justices of the peace of selling
liquor without a license, contrary to sec. 49 of the "Liquor License Act,
R. S. O. ch. 194. A conviction was drawn up and filed with the clerk
of the peace in which it was adjudged that the defendant should pay a
fine and costs, and if they were not paid forthwith, then, inasmuch as
it had been made to appear on the admission of the defendant that he
had no goods whereon to levy the sums imposed by distress, that he
should be imprisoned for three months unless these sums and the costs
and charges of conveying him to gaol should be sooner paid. An
amended conviction was afterwards drawn up and filed, from which the
parts relating to distress and the costs of conveying to gaol were
omitted. A warrant of commitment directed the gaoler to receive the
defendant and imprison him for three months unless the said several
sums and the costs of conveying him to gaol should be sooner paid.
Upon a motion to quash the convictions and warrant :-
Held, that the mode adopted for bringing the defendant before the justices
was not a ground for quashing the conviction; and semble, also, that it
was not improper to arrest him instead of merely summoning him :-
Held, also, that the fact that the defendant was remanded by only one
justice could not affect the conviction.

:

Semble, that the justices had no power under R. S. O. ch. 194, sec. 70, to issue a distress warrant or to make the imprisonment imposed dependent upon the payment of the fine and costs; but as this objection was not taken by the defendant, no effect was given to it :

Held, also, that the justices had the right to draw up and return an amended conviction in a proper case :

Held, also, that if the justices were bound to issue a distress warrant, the insertion of the words relating to the admission of the defendant that he had no goods, was proper; and if they had no power to issue a distress warrant, these words were mere surplusage and did not vitiate the conviction :

Held, also, that if the justices had no power to require the costs of conveying him to gaol to be paid by the defendant, the conviction was amendable, as and when it was amended; for the amendment was not of the adjudication of punishment :

Held, lastly, that having regard to sec. 105 of R. S. O. ch. 194, and to the evidence before the justices, the convictions and warrant should not be quashed.

THE defendant was convicted at Brampton, in the county Statement. of Peel, of selling liquor without a license. Under a writ

of certiorari the clerk of the peace of the county returned two convictions, the original conviction filed with him on

Statement.

the 9th of November, 1889, and an amended conviction filed with him on the 18th of November, 1889. The original conviction was as follows: "Be it remembered that on the 30th day of October, A.D. 1889, at the town of Brampton, in the county of Peel, William Menary is convicted before the undersigned two of Her Majesty's justices of the peace in and for the said county, for that he, the said William Menary, on the ninth day of October, A.D. 1889, at the township of Caledon, in the county of Peel, unlawfully did sell liquor by retail without the license therefor by law required (not being a sale under legal process, or for distress, or sale by assignee in insolvency), contrary to section 49 of the "Liquor License Act of Ontario," Joseph Foster, inspector of licenses, being the informant; and we adjudge the said William Menary for his said offence to forfeit and pay the sum of fifty dollars to be paid and applied according to law, and also to pay to the said Joseph Foster the sum of eight dollars and eighty cents for his costs in this behalf; and if the said several sums be not paid forthwith [then, inasmuch as it has now been made to appear to us, on the admission of the said William Menary, that the said William Menary has no goods or chattels whereon to levy the said several sums by distress] we adjudge the said William Menary to be imprisoned with hard labour in the common gaol for the county of Peel, at Brampton, in the said county, and there to be kept for the space of three months, unless the said sums [and the costs and charges of conveying the said William Menary to the said common gaol] shall be sooner paid."

The amended conviction was similar to the original, leaving out the words in brackets.

The warrant of commitment was also returned upon habeas corpus, which commanded the keeper of the said common gaol to receive the said William Menary into his custody in the said common gaol, there to imprison him at hard labour for the space of three months "unless the said several sums [and the costs of conveying him to the said common gaol,