Reid v. Humphrey, 6 A. R. 403, distinguished. Doe Lewis v. Kinghorn, 4 B. & Ald. 674; Pigot's case, 11 Coke 26b; Lowe v. Fox, 12 App. Cas. at p. 217, referred to. But it was unnecessary to determine whether it was an alteration or a material alteration, for the plaintiff being the holder of the note in due course, and the alteration not being apparent, he might avail himself of it as if it had not been altered, under the proviso to s. 63 of the Bills of Exchange Act, 1890, which proviso extends to an alteration by the addition of a name as maker to a note, for it was passed for the protection of holders in due course, and the generality of its terms could not be restricted. The dictum of Denman, J., in Leeds Bank v. Walker, 11 Q. B. D. at p. 90, as to the meaning of the word "apparent" in the English enactment corresponding to s. 63 above, was not necessary for the decision of the case, and would do away altogether with the benefit to the holder in due course designed by the proviso, and was not followed in Scholfield v. Londesborough, [1894] 2 Q. B. 660; [1895] 1 Q. B. 536; [1896] A. C. 514. Appeal dismissed with costs. W. M. Douglas, for the defendants. [7TH APRIL, 1898. ALDERICH v. HUMPHREY. Trespass-Constable-Warrant-Arrest in wrong county--Good faith-Protection—R. S. O. 1887 c. 73-Notice of action-Insufficiency of—Pleading— "Not guilty by statute”—Amendment. Motion by the defendant Young to set aside the verdict and judgment for the plaintiff against him for $75 and County Court costs in an action for trespass and false arrest and imprisonment, tried before ROBERTSON, J., and a jury, at Hamilton. The defendant Young was a constable, and arrested the plaintiff professedly under a warrant of commitment issued pur suant to a conviction of the plaintiff by the defendant Humphrey, a justice of the peace for the county of Haldimand, for an assault. Held, that the defendant Young was acting in good faith in making the arrest, and there was no evidence to the contrary; he showed the plaintiff the warrant and read it to him; he made the mistake, however, of executing it without first procuring the indorsement of it by a justice of the peace for the county of Wentworth, in which county the arrest was made, under the provisions of ss. 565 and 844 of the Criminal Code; but he was entitled to the protection of R. S. O. 1887 c. 73, and to notice of action: Sinden v. Brown, 17 A. R. 173; McGuinness v. Dafoe, 23 A. R. 704, and cases cited at p. 712; Hughes v. Buckland, 15 M. & W. 346. Notice of action was given, but it was insufficient, for it stated that the arrest took place in the township of Ancaster, instead of in the township of Glanford: Madden v. Shiner, 2 U. C. R. 115; Cronkite v. Somerville, 3 U. C. R. 129; Parkyn v. Staples, 19 C. P. 240. The defendant Young was not debarred from pleading "not guilty by statute" to the 8th paragraph of the statement of claim, which alleged the arrest in the county of Wentworth, in the face of 7 Jac. I. c. 5, and R. S. O. 1887 c. 73, and the pleadings must now be amended by allowing such plea to the 8th paragraph, or a plea of want of notice of action. Order made with costs setting aside the verdict and judgment for the plaintiff against the defendant Young, and directing that judgment be entered dismissing the action with costs. E. D. Armour, Q.C., for the defendant Young. W. W. Osborne, for the plaintiff. [BOYD, C., MEREDITH, J., 1ST MARCH, 1898. HAIGHT v. HAMILTON STREET RAILWAY CO. Street railways-Negligence-Injury to foot passenger-Evidence. The plaintiff, a man over ninety years of age, lame, very infirm, and almost deaf and blind, while attempting to cross a street in a city, was run into by one of the defendants' electric cars, and injured. The plaintiff was walking at a snail's pace; his manner and actions, being strange, were observed, not only by persons some distance off, who, thinking he was in danger, attempted, unavailingly, to warn him, but also by the motorman, who thought he might be drunk, and said he could have stopped the car before reaching the plaintiff, had he not thought the plaintiff saw the car and would have got out of the way, but that when he did attempt to stop, it was too late. Held, that there was evidence of negligence to go to the jury. Crerar, Q.C., and P. D: Crerar, for the defendants. Lynch-Staunton, for the plaintiff. [BOYD, C., 7TH APRIL, 1898. BAKER v. STUART. Dower-Widow's election-Devolution of Estates Act-Time-Ascertainment of rights-Construction of will. An appeal by the defendant Margaret Stuart, the widow of James N. Stuart, from a certificate of the Master at Cornwall. James N. Stuart died in August, 1896, and probate of his will was granted in November, 1896. An action to construe the will was begun in January, 1897, and judgment given in March declaring an intestacy as to lands, and that the widow was entitled to dower thereout, notwithstanding benefits received by her under the will: 28 O. R. 439, 17 Occ. N. 144. The Master was directed to sell the lands, if that was needed for the purpose of administration and distribution, and a sale was had under the judgment, in October, 1897. The widow filed a statutory deed of election to take a distributive share of the estate, in lieu of dower, on the 14th March, 1898, more than a year after the death. The Master ruled that the widow could not elect because of the judgment declaring her right to dower, and in support of his ruling it was also contended that the right to elect should be exercised within a year from the death according to the Devolution of Estates Act, and that now it was too late for the widow to act under s. 4, s.-s. 2, of R. S. O. 1897 c. 127, as read with s. 13. No question of title arose, because the lands had all been sold and the purchase money was in Court. Held, that there was no reason why the widow might not effectively declare her election to take a distributive share of the proceeds of sale, instead of claiming dower, so long as the money was in the hands of the Court. The Act required the husband, as to his curtesy, to elect within six months after his wife's death: s. 4, s.-s. 3: but no time limit was expressed as to the wife's election in s.-s. 2 of the same clause. That would leave it open to the widow to claim by election a distributive share, so long as the estate had not been divided on the footing of her having retained the right to dower. The rights of the beneficiaries and of the next of kin were not known or ascertained legally in this estate until the will was construed in March, 1897, and within a year from that time the widow made her statutory election, which disturbed the rights or shares of no one entitled to receive a distributive portion. The judgment construing the will was not meant to conclude the right of the widow to share on the footing of dowress; it was a declaration that upon the construction of the will she was entitled to dower, as well as the testamentary benefits bestowed upon her. Nor did the mere lapse of time operate under the statute, in the circumstances of this case, to bar her privilege under s. 4, s.-s. 2, of the Devolution of Estates Act. Appeal allowed. Costs out of the estate. E. D. Armour, Q.C., for the appellant. [12TH APRIL, 1898. In re SCHOOL SECTION 16, TOWNSHIP OF HAMILTON. Public schools-Alteration of boundaries of school sections--Division of section-Appeal to county council—Arbitration and award-Ultra vires-Change in law—54 V. c. 85, s. 82-Construction of. Motion by the trustees of the school section to set aside an award made by the arbitrators appointed by the municipal council of the united counties of Northumberland and Durham to consider and decide upon an appeal to the council in regard to the boundaries of the school section. Held, that the change made in the Public Schools Act by the amendment contained in s. 82 of 54 V. c. 85 has in some respects limited the right of appeal to the county council. Before the amendment the township council had power to pass by-laws (1) to alter the boundaries of a school section; (2) to divide an existing section into two or more sections; (3) to unite portions of an existing section with another section or with any new section: R. S. O. 1887 c. 225, s. 81. By s. 82 of that Act, an appeal was given to the council against any by-law for the formation, division, union, or alteration of school section or sections and against the neglect or refusal of the township to form, divide, unite, or alter the boundaries of school sections. The change made by the Act of 1891 was that the latter appeal was limited to neglect or refusal to alter the boundaries of school section; and the question was whether the words "alteration of boundaries" were large enough to cover union and division. Giving words their fair meaning, and having regard to the particular grouping of words, the better and only intrepretation was that a limited meaning should be given to these words. What was sought in this case was the division of school section 16 into two equal parts, each of which was large enough to become a section by itself. The present law, carried on from 1891 into the consolidation of 1896, gave no appeal in such a case, and all proceedings thereafter, culminating in the majority award, fell to the ground as ultra vires. Order made setting aside award without costs. Clute, Q.C., and F. D. Boggs, for the applicants. Masten, for the township corporation. W. R. Riddell, for certain ratepayers. [FERGUSON, J., 7TH APRIL, 1898. KEEPER v. PHOENIX INSURANCE COMPANY OF HARTFORD. Fire insurance-Written contract by assured for sale of insured premises-Nondisclosure to insurers-Parol evidence to vary written contract-Verbal agreement that vendor should insure-Collateral contract—“ Assigns”— Purchaser-Right of vendor to recover for loss by fire-Trustee for pur chaser. Action upon a fire insurance policy for $2,000, $1,700 upon one building, and $300 upon another. The policy was dated the 28th February, 1894. The fire took place on the 11th December, 1896. The undisputed amount of the loss was the whole $1,700 to one building, and $40 to the other. On the |