ONTARIO.

Supreme Court of Judicature.

COURT OF APPEAL.

DIVISIONAL COURT.]

[1ST APRIL, 1898.

TATE v. NATURAL GAS AND OIL CO. OF ONTARIO. Parties-Addition of Rule 206 (2)—Amendment-Alternative claim-Rule

192-Company-President--Contract.

A motion by the defendants and the Ontario Natural Gas Company for leave to appeal from the order of a Divisional Court, ante 115, allowing the plaintiff to add the latter company and an individual as parties defendant, was refused, the Court agreeing with the opinion of MEREDITH, C.J., in the Divisional Court.

W. R. Riddell, for the applicants.
Aylesworth, Q.C., for the plaintiff.

ROSE, J.]

[18TH FEBRUARY, 1898.

In re GROSS.

Criminal law-Extradition-Offence referred to by wrong name—Theft

Larceny.

Where there is evidence of the commission of an act which is recognized as a crime by the law of Canada and the law of the country demanding the extradition of the accused person, extradition will lie, though in the proceedings therefor the offence is referred to by a wrong name.

Larceny is, by the Ashburton Treaty, the Convention of 1889, and the Extradition Act, specified as a crime for which extradition to the United States will lie; but larceny is not, by

that name, recognized as a crime by the Criminal Code, 1892, the terms there used to describe the same offence being "theft or" stealing."

Held, affirming the decision of ROSE, J., that where there was evidence of the commission of the crime of theft, the prisoner should be held for extradition, although in the proceedings for extradition the offence was described as larceny.

J. F. Faulds, for the prisoner.

J. Curry, for the prosecutors.

ROBERTSON, J.]

[15TH MARCH, 1898.

DWYRE v. CITY OF OTTAWA.

Injunction—Interlocutory order—Balance of convenience—Municipal corporations-By-laws regulating procedure.

A by-law of a municipal corporation, passed under s. 283 of the Consolidated Municipal Act for the purpose of regulating procedure, requiring work exceeding $200 in value to be done by contract after tenders had been called for, was, on the acceptance of duly advertised for tenders for the construction of a pavement on a particular street, disregarded by the council stipulating in accepting the tenders that the contract should be held to cover and include the construction during the year of any similar pavement on other streets at the same prices and terms. In pursuance of this stipulation the contractors entered into other contracts with the corporation, and proceeded with the work by opening up other streets and otherwise, when they were enjoined from proceeding by an interlocutory order in an action by a ratepayer :

Held, that as the applicant's legal right was not clear, and, as serious loss and public inconvenience would necessarily result from granting the order, while no irreparable loss would result from refusing it, the interlocutory injunction should not have been granted.

Decision of ROBERTSON, J., reversed.

W. Nesbitt and H. E. Rose, for the appellants.

McCarthy, Q.C., and D. L. McCarthy, for the respondent.

HIGH COURT OF JUSTICE.

[MEREDITH, C.J., ROSE, J., MACMAHON, J., 14TH FEBRUARY, 1898. CALLAGHAN v. HOWELL.

Will-Legacy-Devise of land-Fayment of legacy out of rents and profits -Charge-Arrears-Action to recover-Limitation of actions-Receiver.

A testator, by his will, after a bequest to the plaintiff, amongst others, made a devise to his daughter M. of "my two farms," describing them, and all the rest of his property of whatsoever kind, and, in case of her marriage, to her "sole and separate use," and desired his executors to pay the legacies out of " the annual produce of the farms, or as to them should seem best.". The executors renounced, and no one administered, but the daughter took possession of the whole estate, and received the rents and profits of the farms. She subsequently mortgaged the farms, and they were sold by a first mortgagee, under his power of sale, and, after satisfying his claim, the balance of the purchase money was paid into Court, and was claimed by a subsequent mortgagee.

Held, that the plaintiff's legacy was a charge upon and payable out of the annual produce of the farms, the provision in the will therefore being clear, and was not affected by the subsequent words, or as to the executors "should seem best;" but that her right to arrears of interest must be limited to six years; that the fact that sufficient annual produce of the farms had been received to pay the legacy, was no answer to the plaintiff's claim, for it could not be set up by the daughter, by reason of her possession and receipt, and her grantees and mortgagees could be in no better position; that, if necessary, a receiver of such annual produce should be appointed; that the balance of purchase money should remain in Court as indemnity to the purchaser against the plaintiff's claim; and that, after the payment thereof, it could be paid out to the subsequent mortgagee. W. H. Blake, for the defendant Thompson.

Clute, Q.C., for the plaintiff.

S. Masson, for the defendant Howell.

The other defendants were not represented.

[4TH APRIL, 1898.

CAMPBELL v. FARLEY.

Parties-Claims against partnership-Action against surviving partnerThird party notice—Indemnity or relief over--Administratrix of deceased partner-Concurrent administration proceedings-Claim upon collateral

security.

An appeal by the defendant Farley from the order of STREET, J., ante 141, setting aside an order permitting the appellant to serve a third party notice upon Jennie MacDonald, was dismissed, the Court agreeing with the opinion of STREET, J.

Tremeear, for the defendant Farley.

W. E. Middleton, for Jennie MacDonald.

[ARMOUR, C.J., FALCONBRIDGE, J., STREET J., 17TH FEBRUARY, 1898.

SMITH v. SMITH.

Parent and child—Agreement—Maintenance of parent-Consideration—Promise to bestow farm on child—Definite contract-Evidence—Change of intention.

When a son seeks to enforce an agreement that if he remains with his father and works the latter's farm, and provides for his declining years, the father will bestow the farm on him, Courts will require that the agreement be established by the clearest evidence, and that a certain and definite contract for a valuable consideration be proved, or the parent will be entitled to change his views and the disposition of the property, in case of his own altered circumstances, or want of filial conduct on the part of the child.

Judgment of ROSE, J., reversed.

G. W. Wells, Q.C., for the plaintiff.

W. R. Riddell and W. E. Kelly, for the defendant.

[5TH APRIL, 1898.

CUNNINGTON v. PETERSON.

Promissory note-Material alteration-Unauthorized addition of name as maker-Intent-Presumption-Holder in due course-Alteration not apparent Bills of Exchange Act, 1890, s. 63.

An appeal by the defendants from the judgment of the County Court of Waterloo in favour of the plaintiff in an action upon a joint and several promissory note, purporting to be made by all the defendants, payable to Dygert Brothers, and by them indorsed to the plaintiff, who became "the holder thereof in due course," within the Bills of Exchange Act, 1890.

The defendants Good and Hahn did not defend; the defendant Nicholous Dietrict denied that he made the note; and the other defendants set up, amongst other things, that R. J. Dygert, one of the firm of Dygert Brothers, materially changed and altered the note by forging the name of the defendant Dietrict thereto, and the same was thereby avoided.

The plaintiff did not attempt at the trial to prove the signature of Dietrict, and was nonsuited as to him; Dietrict was then called as a witness on behalf of the other defendants, and denied that he signed the note or authorized anyone to sign it for him. There was no evidenee that R. J. Dygert forged his name, nor as to how his name came to be signed, nor when; but it appeared that it was signed to the note when the plaintiff became the holder.

The only question argued was whether the plaintiff could recover against the other makers of the note, the name of the defendant Dietrict being there without his authority.

Held, that, as in this case the name of Dietrict was signed to the note during the completion of it, after five of the defendants had signed it, and before other two of the defendants had signed, and before it was issued, and the plaintiff did not sign it, and it was not fair from the evidence to conclude that either of the payees did it, and the inference from the evidence was that if the defendant Dietrict neither signed it nor authorized the signing of it, some person signed it, not with intent to defraud, but believing that he had the authority to sign it for Dietrict, there was considerable doubt whether this was a material alteration which avoided the note, or an alteration at all.