the claimant elects to treat the defendants therein named as trespassers, on and from the day mentioned in the writ, and he cannot sue them as tenants for use and occupation subsequent to that day." Referring among other cases to Jones v. Carter, 15 M. & W. 718.

In that case, Parke, B., said: "In the cases above referred to, the option was held to have been exercised by the receipt of rent subsequently due, and the lease thereby rendered valid. In like manner the lease would be rendered invalid by some unequivocal act, indicating the intention of the lessor to avail himself of the option given to him, and notified to the lessee, after which he could no longer consider himself bound to perform the other covenants in the lease; and if once rendered void it could not again be set up."

The sale by Markle, before the execution of the writ was, therefore, a valid sale.

And the appeal should be dismissed, with costs.

OSLER, J.-I am of opinion that this appeal should be dismissed.

Markle

I agree with the learned Judge of the County Court, in thinking that what took place between Tyson and Markle, on the 6th October, did not amount to a disaffirmance. What was done was this. Tyson, having discovered the fraud which had been practised on him, went to see Markle, and get his property back, or such satisfaction as he could give. He demanded the property, tendering the notes Markle had given him for it. hesitated about giving it up, and did not take back the notes, but asked Tyson to rest contented and that he would be down to Guelph on the following Thursday, and he would bring the property or give satisfaction. Tyson did rest contented. He took up the notes and went away. Markle never came to Guelph, and nothing more was done until the 18th October, when Tyson issued a writ of replevin against him.

I think it is impossible to say that up to that time there had been a disaffirmance. The vendor had not elected to avoid the sale by any act of his, but had, on

the contrary, while not affirming it, kept it open, and postponed, as it were, his right to disaffirm. Clearly Markle had a right to satisfy him in any way, before he indicated by some fresh act on his part his avoidance of the sale. He might have satisfied him by payment, and to procure the means of payment he might have sold the horse. Therefore, the contract had not been disaffirmed or avoided before the writ of replevin was issued.

The case turns upon the effect to be attributed to that proceeding, for the property was sold by Markle to the plaintiff on the following day, and before the writ was executed. The defendant was unfortunately incautious enough to take the property out of the plaintiff's actual possession under that writ, although not a party to it, and he, therefore, cannot justify under it as he has attempted to do in his 5th plea Great Western R. W. Co. v. McEwan. 28 U., C. R. 528. We are asked in one of the printed reasons of appeal, though the objection was not pressed on the argument, to disregard that case, but it appears to us to be good law and well supported by authority. A subsequent report of the same case on a motion for a new trial, 30 U. C. R. 559, shews that the defendant may set up the jus tertii, and prove if he can that the property was Tyson's and not the plaintiff's.

This, we think, he has not succeeded in doing, for as against this plaintiff, who is to be taken as an innocent third party, we are of opinion that the mere issue of the writ and its delivery to the sheriff, which, at the most, was all that was done before the plaintiff acquired his title, was not a sufficient act of election to avoid the contract between Tyson and Markle.

In Clough v. The London and North Western R. W. Co., L. R. 7 Ex. 26, it is said, p. 35: "In such cases the question is, has the person on whom the fraud was practised, having notice of the fraud, elected not to avoid the contract? or has he elected to avoid it? or has he made no election? We think that so long as he has made no election, he retains the right to determine it either way,

subject to this: that if in the interval whilst he is deliberating an innocent third party has acquired an interest in the property it will preclude him from exercising

* *

his right to rescind."

In that case the plaintiff claimed title through the fraudulent purchaser, and was asserting his right against the vendors of the latter by means of an action of trover. They were in the first instance defending the action on the untenable ground of a right to stop in transitu. It was held that they might, on discovering at the trial that the goods had in fact been obtained by fraud, then elect to rescind the contract and declare their intention to do so by a plea to that effect in the cause.

There, however, the plaintiff was a party to the fraud, and it was so averred in the plea. Had he been an innocent purchaser, or not privy to the fraud, it is clear that the defendants could not have availed themselves of such a defence at that stage.

If Markle or the plaintiff in privity with his fraud were here suing Tyson or the defendant, the case would be analogous.

So long as the writ of replevin remained unexecuted and the vendor had given no notice to Markle of his election to rescind, it was within the former's power to withdraw it, and there was no act of election either way. Such an act to be of any avail must be communicated in some way to the party to be affected by it: until then it exists only in intention and may be withdrawn: the vendor is still deliberating and the property may be acquired by an innocent purchaser. The principle, as the Court say in the case already quoted, is precisely the same as that on which it is held that the landlord may elect to avoid a lease and bring ejectment when his tenant has committed a forfeiture; and in Jones v. Carter, 15 M. & W. 718, it was said the bringing of an ejectment for a forfeiture, and serving it on the lessee in possession, must be considered as the exercise of the lessor's option to avoid the lease. See the observations on this case in Scarf v. Jardine L. R.7

App. Cas. 360-1. See also Newnham v. Stevenson, 10 C. B. 713.

In the case before us the plaintiff acquired his title before the option of the vendor to rescind was communicated to the fraudulent purchaser, and he is therefore entitled to recover.

GALT, J., concurred.

Appeal dismissed, with costs.

64-VOL. VII A.R.

LAMBIERE V. THE SCHOOL TRUSTEES OF SECTION NUMBER THREE, SOUTH CAYUGA.

Public Schools Act-Contract of Trustees.

In an action by a school teacher to recover damages as for a wrongful dismissal, it was shewn that the agreement to employ the plaintiff was made in writing, under seal and signed by two, of the three school trustees, but not at the same time or at any meeting of the trusteee called for the purpose of transacting school business.

Held, reversing the judgment of the County Court (Haldimand), that the agreement was void under sec. 97 of the Public Schools Act, which provides that "No act or proceeding of a school corporation which is not adopted at a regular or special meeting of the trustees, shall be valid or binding on any party affected thereby."

APPEAL from the County Court of the County of Haldi

man.

The statement of claim was: (1) That the plaintiff was hired by defendants by a written agreement under seal dated 29th November, 1880, to teach their school from 1st January, 1881, to 31st December, 1881, at a salary of $350; (2) That plaintiff entered into defendants employment on 1st January, 1881, and continued till 7th February, 1881, when she was wrongfully dismissed; (3) That plaintiff was ready and willing to continue in performance of her duties for the remainder of the year. And she claimed $200 damages.

The defence was: (1) That the agreement was not considered and adopted at a regular or special meeting of defendants, as required by the School Law of Ontario; (2) That the agreement was signed by Nicholas Miller and Abraham G. Wismer, two of the trustees of said section, without being authorized as aforesaid; and Matthew Sniderhorn, the remaining trustee, did not receive any notice of any meeting at which the agreement was adopted.

The cause came on for trial at the sittings of the Court in December, 1881, when the plaintiff was examined on her own behalf, and swore that she taught school in said section at the rate of $350 per annum, from August 18th to Christmas holidays, 1880; and that she made application