INDEX.

ACCIDENT.

See RAILWAYS,2-STREET RAIL-
WAYS, 1, 3.

ACCIDENT INSURANCE.
See INSURANCE, 3.

ACTION.

AMENDMENT.

See APPEAL, 2-CRIMINAL LAW,
2-SALE OF LAND, 3.

APPEAL.

1. Divisional Court Appeal
-Right of Judge to Sit on Appeal
from Himself-Staying Execution
Pending Appeal and Trial of

Commencement of.]-See INSUR- Counterclaim-Ontario Judicature

ANCE, 3.

Act, sec. 70 (2)-Con. Rule 827

On Foreign Note.]-See DIVIS- (2). By sec. 70 (2) of the

ION COURTS.

To Remove Cloud on
See SALE OF LAND, 3.

Ontario Judicature Act, R.S.O.

Title.]-1897, ch. 51, a Judge is disabled
from sitting as a member of the
Divisional Court hearing an ap-
peal from a judgment or order
made by himself, and he has
therefore no jurisdiction, after
AD- the setting down of an appeal
from his judgment, to make an
order that execution shall not be
stayed.

ADMINISTRATORS.

EXECUTORS

See

MINISTRATORS.

AND

AFFIDAVITS.

Cross-Examination on

Warranto Proceedings.]
MUNICIPAL CORPORATIONS, 1.

AGENT.

See PRINCIPAL AND AGENT.

AGREEMENT.

See CONTRACT.

ALIENATION.
Restraint on.]-See Wills, 3.

ALIMONY.

See FOREIGN JUDGMENT.

In an action for goods sold and
Quo delivered the defendant counter-
See claimed for trespass. The plaintiff

recovered judgment at the trial
of his claim, and the trial of the
counterclaim was adjourned. The
defendant appealed to the Divis-
ional Court, on the ground that
the amount for which the plaintiff
had recovered judgment should be
reduced by $214.50 as damages
for breach of warranty:-

Held, that the trial Judge had
no jurisdiction to make an order
on application to him under Con.
Rule 827 (2) that execution
should not be stayed, notwith-
standing that an appeal to this
Court had been set down; but
that as the order was a proper one
on the merits, execution should
not be stayed save as to the

$214.50, as the counterclaim was enacted by 4 Edw. VII. ch. 11,
not one which should have been sec. 2 (0.)—Con. Rule 826 being
joined with the action, and it was to the same effect-provides that,
not shewn that if a verdict were subject to rules of Court, on appeal
obtained on the counterclaim, from a Divisional Court,
there would be any danger of the security, unless otherwise ordered
amount not being recoverable by the Court of Appeal, shall be
from the plaintiff; and that, as to given for the costs of appeal.
the $214.50, it was proper to stay In an action for damages under
execution, notwithstanding affi- the Fatal Injuries Act, the trial
davits on behalf of the plaintiff Judge, being of opinion that there
of his belief that the defendant's was no evidence to submit to the
appeal was merely for delay, and jury, dismissed the action; but
as to his uncertainty in respect to directed the jury to assess the
the defendant's financial ability damages (which they did at
to pay the claim, there being no $3,500) in case it should be held
suggestion or evidence that by on appeal that there was such
staying the execution to this evidence; and on appeal to a
extent the plaintiff would prob- Divisional Court the trial Judge's
ably lose his claim. Mullin v. finding was affirmed.
Provincial Construction Co., 241.

Motion for Leave to.]-See CER-

TIORARI.

See BANKRUPTCY AND INSOL-
VENCY-CONTEMPT OF COURT-

An application to a Judge of the
2. Appeal to Divisional Court Court of Appeal, on the ground of
of High Court-Division Court the alleged poverty of the appel-
Appeal-Division Courts Act, sec. lant, to dispense with or reduce the
158-Amendment-Filing Certi- amount of security for costs of an
fied Copy of Proceedings-Ex- appeal to the Court of Appeal,
tension of Time for Jurisdiction.] was, under the circumstances,
-A Divisional Court of the High refused. Whiteman v. Hamilton
Court, which is the Court for Steel and Iron Co., 257.
hearing division court appeals,
has no power to extend the time
limited by sec. 158 of the Division
Courts Act for filing the certified
copy of the proceedings in the
division court, and has no power,
under sub-sec. 2 of sec. 158 (as
added by 4 Edw. VII. ch. 12,
sec. 2), or otherwise, to extend
the time for setting down the
appeal until it is seised of the
appeal by the filing of the certified
copy, the time for filing which
may be extended by the Judge in
the division court. Whalen v.
Wattie, 249.

SCHOOLS.

APPORTIONMENT.

See TRUSTS AND TRUSTEES.

ARBITRATION AND
AWARD.

Power of Arbitrators.] See
SCHOOLS.

3. Court of Appeal-Security
for Costs-Application to Dispense
with-Poverty of Applicant-0.J.
Act, sec. 76, Con. Rule $26.]-
Section 76 (c) of the O.J. Act, as TION.

ASSESSMENT.

Of Damages.] See DEFAMA-

BALLOTS.

Scrutiny of-Finally Passing
By-law Before Time Elapsed for.]
See INTOXICATING LIQUORS, 1,
-MUNICIPAL CORPORATIONS, 4.

3

BANKS AND BANKING.
1. Overdrawn Customer's Account
-Promissory Notes-Collateral
Securities Transfer to Third
Person-Inspection of Customer's
Account Bank Act, 1890, sec. 46
-Interest Compounding.] R.,
having had an account with a
bank for many years previous to
BANKRUPTCY AND
the 16th July, 1906, was on that
INSOLVENCY.
day indebted to the bank in a
Assignments and Preferences- large sum for moneys advanced,
Appeal from County Court Judge for which the bank held securities
Jurisdiction-Leave to Appeal- pledged to them by R. and a
General Words in Notice of Motion promissory note made by R.,
Costs-Power to Award-R.S.O. payable on demand, for a sum
1897, ch. 147, sec. 20-63 Vict. larger than the amount then due.
ch. 17, sec. 14 (0.)-Con. Rule M. had been negotiating with the
1130 (1). A Judge of the High bank for an assignment of the
Court of Justice has no jurisdic-
tion to entertain an appeal or to
give leave to appeal from an
order of a county court Judge as
to the valuing of securities under
sec. 20 of the Assignments and
Preferences Act, R.S.O. 1897, ch.
147; but, under Con. Rule 784,
he may refer the motion to a
Judge of the Court of Appeal,
who, under 63 Vict. ch. 17, sec.
14 (O.), has jurisdiction to grant
leave to appeal in such a case;
and

Held, that to do so was proper in
this case, in view of the general

on

debt due by R., and had been
permitted by the bank to see the
entries in their books relating to
that debt, and,
the day
mentioned, the bank assigned to
M. the sum due and all the
securities held by them, covenant-
ing that the sum named was due
and to produce and exhibit their
books of account and other evi-
dence of indebtedness, etc. The
pledged securities were handed
over to M., and afterwards the
demand note, upon which he sued
R., who brought a cross-action
against the bank and M. for an

account and damages and other
relief:-

Held, that the bank were not
prohibited by sec. 46 of the Bank
Act, 1890, from allowing M., for
the purposes mentioned, to in-
spect the account of R. with the
bank; that the agreement was
not invalid; that M. was entitled
to succeed in his action upon the
note; and that R.'s action failed.

A guarantor to a bank, which
also holds such a security for the
debt guaranteed, is not sub-
rogated to the rights of the bank
in the security on payment of the
debt by him.

Judgment of the Master in
Ordinary reversed. Re Victor
Varnish Co., Clare's Claim, 338.

3. Discount Assignment of
Warehouse Recerpts as Security-
Present Advance-Bank Act, secs.
Held, also, MEREDITH, J.A., 86, 90- Firm - Subsequent In-
dissenting, that the bank were
not entitled to charge R. com-signment of Business to Evidence
corporation of Company and As-
pound interest; but where the
bank had made a discount or an Parties Estoppel.]
of Ownership - Liquidation
advance for a specified time and November 28th, 1904, a

had reserved the interest in ad-

Before

and butter business was being
carried on by a married woman
under the trading name of the
Toronto Cream and Butter Com-

vance, this should be allowed; in
other cases, where there had been
an overdraft, and payments had
been made, interest should be
reckoned up to the date of each
payment, and the sum paid ap-
plied to the discharge of the
interest in the first place, and any
surplus to the discharge of so stating that a line of credit would
much of the principal.

Judgment of CLUTE, J. re-
versed. Montgomery v.
v. Ryan;
Ryan v. Bank of Montreal and
Montgomery, 75.

pany, her husband being the
view of opening an account with
manager. On that date, with the
the defendants' bank, a letter was
written in the trading name

In

be required from $10,000 to
$12,000 secured by warehouse.
receipts on butter, and from
$1,000 to $2,000 on the firm's note
to be otherwise secured.
November, 1904, the account was
2. Security under sec. 88 of Bank opened and advances made by the.
Act-Assignment of Payment of bank, and on October 23rd, 1905,
Principal Debt by Guarantor-Sub- the account was overdrawn to the
rogation.]-A security acquired amount of $10,158.01, and there
under section 88 of the Bank Act
R.S.C. 1906, ch. 29. whereby a
bank may lend money to manu-
facturers upon the security of
goods manufactured by them is
not legally assignable by the
bank so as to transfer the special
lien or security-conferred by
that Act to a third party. The
purpose of the security is satisfied
when the debt, it is given to
secure, is paid to the bank.

was an outstanding note of $1,700
due in November. On October
23rd the manager discounted a
promissory note made under the
trading name for $6,000 at three
months, and by the same name
assigned to the bank as security
therefor warehouse receipts of 401
cases of butter, promising also
other warehouse receipts to cover
the indebtedness. After placing
the $6,000 to the firm's credit

there remained a debit balance of Held, that the business was that
$4,258.01, which was gradually of the wife and not of the husband,
reduced, and on December 26th, and that there was a valid transfer
1905, when liquidation proceed- by her to the company of all the
ings were taken, there was out- firm's assets and business, so as to
standing the $6,000 note, a $2,000 vest in them the title to the
note discounted on October 27th, butter, and though the continu-
1905, and an open debit balance ance of the business in the old
of $200. No attempt was ever trade name was objectionable and
made to draw out the $6,000, but gave colour to the contention that
the manager of the bank stated there was no change in the owner-
that there was no restriction ship or control of the business,
preventing it. The 401 cases had she was estopped from contesting
been warehoused on September the company's title thereto.
21st and 26th, and October 4th, Held, also, that as to the 401
10th, and 20th, while 99 cases had cases, the transaction was sup-
been warehoused on October 20th portable, under sec. 73 of the
and 21st, although no warehouse Bank Act, 53 Vict. ch. 31 (D.),
receipts had been obtained there-
now sec. 86 of the R.S.C. 1906,
for, and there was nothing to ch. 29, as on the evidence there
shew they had ever been assigned was a present advance and not a
to the bank.
mere form to cover a past indebt-
edness, but that the bank had no
claim to the 99 cases.

Held, also, OSLER and GARROW,
JJ.A., dissenting, that the bank

was not entitled to hold the ware-

house receipts, under the letter of
November 28th, as not con-
stituting an agreement to furnish
security for advances thereafter

The firm had been incorporated
as a company by letters patent,
dated April 5th, 1905, one of the MEREDITH, J.A., dissented on
objects being to acquire the the ground that the note was not
business as a going concern; "negotiated" within the 90th
and by an agreement dated June section of the Bank Act, at the
1st, 1905, made between the wife time of the acquisition of the
and the company, and executed warehouse receipts.
by both parties, all the property,
assets and good-will of the busi-
ness were sold to and transferred
to the company, which agreement
was confirmed by a resolution of
the shareholders, the husband
being appointed manager, and the
defendants' bank appointed the
company's bank. Notwithstand-
ing the incorporation and sale to
the company, the business con-
tinued to be carried on as thereto-
fore in the trade name, no by-
laws being passed, and no stock
was ever allotted to the vendor
of the business, the bank not
being aware of the incorporation
and sale until some days after the
transfer to them of the warehouse
receipts:-

to be made.

Ontario Bank v. O'Reilly (1906),
12 O.L.R. 420, applicable, and
Halsted V. Bank of Hamilton
(1896), 27 O.R. 435 (1897), 24
A.R. 152, 28 S.C.R. 235, dis-
tinguished.

Held, also, that the company,
and not the liquidator, were the
proper parties to the action.

Judgment of TEETZEL, J., at
the trial, affirmed. Toronto