The fire of Thursday, was set out by members of the defendant community to burn a ring or fire guard round some of their hay stacks, and the question arose whether the present case came within Dean v. McCarty, 2 U. C. R. 448, and the other Ontario cases which followed it.

Held, that in the Province of Manitoba the use of fire to burn a guard round hay stacks should be regarded as the use of it in a customary way for the purpose of agriculture. The use of fire for that purpose has the sanction of the Legislature: Fires Prevention Act, R. S. M. c. 60. The defendants could not be charged with improperly setting out the fire in the first instance, and they took reasonable precautions to prevent it spreading. They believed and had reason to believe that it was completely put out, although it must, in some places, have been smouldering in the ground. It was an exceptionally high wind, springing up suddenly on the Saturday, and fanning some smouldering embers on the ground into flame, which caused the disaster.

A verdict should be entered for the defendants with costs.

Howell, Q.C., and Haney, for the plaintiff.
Aikins, Q.C., and Dubuc, for the defendants.

Supreme Court of Canada.

EXCHEQUER COURT.]

[8TH MARCH, 1898.

GOODWIN v. THE QUEEN.

Crown-Contract-Construction of Public works-Progress estimates-Engineer's certificate-Approval by head of department-Final estimates— Condition precedent.

Clause 8 of the appellant's contract for the construction of certain public works was, as drafted, as follows: "That the engineer shall be the sole judge of work and material in respect of both quantity and quality, and his decision on all questions in dispute with regard to work or material, or as to the meaning or intention of this contract, and the plans, specifications, and drawings, shall be final, and no works, or extra or additional works or changes, shall be deemed to have been executed, nor shall the contractor be entitled to payment for the same, unless the same shall have been executed to the satisfaction of the engineer, as evidenced by his certificate in writing, which certificate shall be a condition precedent to the right of the contractor to be paid therefor;" but before the contract was signed by the parties the words "as to the meaning or intention of this contract, and the plans, specifications, and drawings," were struck out.

Clause 25 was as follows: "Cash payments to about ninety per cent. of the value of the work done, approximately made up from returns of progress measurements and computed at the prices agreed upon or determined under the provisions of the contract, will be made to the contractor monthly on the written certificate of the engineer that the work for or on account of which the certificate is

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granted has been duly executed to his satisfaction, and stating the value of such work, computed as above mentioned, and upon approval of such certificate by the Minister for the time being; and the said certificate and such approval thereof shall be a condition precedent to the right of the contractor to be paid the said ninety per cent. or any part thereof."

A difference of opinion arose between the contractor and the engineers as to the quantity of earth in certain embankments which should be paid for at an increased rate as "water-tight" embankment under the provisions of the contract and specifications relating to the works, and the claim of the contractor was rejected by the engineer, who afterwards, however, after the matter had been referred to the Minister of Justice by the Minister of Railways and Canals, and an opinion favourable to the contractor given by the Minister of Justice, made a certificate upon a progressive estimate for the amount thus in dispute, in the usual form, but added after his signature the following words: "Certified as regards item 5 (the item in dispute) in accordance with letter of Deputy Minister of Justice dated 15th January, 1896."

The estimate thus certified was forwarded for payment, but the Auditor-General refused to issue a cheque therefor.

Held, that, under the circumstances of the case, the certificate sufficiently complied with the requirements of clause 25 of the contract; that the decision by the engineer rejecting the contractor's claim was not a final decision under clause 8, adjudicating upon a dispute under that clause, and did not preclude him from subsequently granting a valid certificate to entitle the contractor to receive payment of his claim; and that the certificate given in this case, whereby the engineer adopted the construction placed upon the contract in the legal opinion given by the Minister of Justice, was properly granted within the meaning of clause 25 of the contract.

Murray v. The Queen, 26 S. C. R. 203, discussed and distinguished.

Judgment of the Exchequer Court of Canada, 5 Ex. C. R. 293, reversed.

Osler, Q.C., and A. Ferguson, Q.C., for the appellant.
Ritchie, Q.C., and Chrysler, Q.C., for the respondent.

QUEBEC.]

[6TH MAY, 1898.

BURLAND v. LEE.

Master and servant-Negligence-Contributory negligence-Evidence. In an action for damages by an employee for injuries sustained while operating an embossing and stamping press, it appeared that when the accident causing the injury occurred, the whole of the employee's hand was under the press, which was unnecessary, as only the hand as far as the second knuckle need be inserted for the purpose of the operation in which he was engaged. It was alleged that the press was working at undue speed, but it was proved that the speed had been increased to such extent at the instance of the employee himself, who was a skilled workman.

Held, reversing the judgment of the Court of Queen's Bench, that the injury occurred by a mere accident not due to any negligence of the employer, but solely to the heedlessness and thoughtlessness of the injured man himself, and the employer was not liable.

G. Stuart, Q.C., and F. Maclennan, for the appellant, Saint-Pierre, Q.C., for the respondent.

DOMINION CARTRIDGE CO. v. CAIRNS.

Master and servant-Negligence--Fault of fellow-servant-EvidenceEmployer's liability-Arts. 1053, 1056, C.C.

The defendants carried on the manufacture of detonating cartridges or caps to be used for the purpose of exploding large bodies of dynamite, made by charging

copper shells with a composition of fulminate of mercury and chlorate of potash, a highly explosive mixture, calling for great care in manipulation. It is, when dry, liable to explode by friction or contact with flame, but has the property of burning slowly without exploding when saturated with moisture. It was the duty of the defendants' foreman to bring a sufficient quantity of the mixture twice a day, for use in his special compartment during the morning and in the afternoon, and to keep it properly dampened with water, for which purpose he was furnished with an atomizer. It was also the foreman's duty to fill the empty shells with the fulminating mixture, as they were handed to him set on end in wooden plates, and then pass them on, through a slot in his compartment, to a shelf, whence they were removed by another employee, and the charges pressed down to the bottom of the shell by means of a pressing machine, worked by C., at a table near by. An explosion took place, which appeared from the evidence to have originated at the pressing machine, and might have occurred either through the fulminate in the shells having been allowed to become too dry from carelessness in sprinkling, or from an accummulation of the mixture adhering to and drying upon the metal portions of the pressing machine. It was the duty of C., the person operating the pressing machine, to keep it clean and prevent the mixture from accumulating and drying there in dangerous quantities. When the explosion occurred, the foreman and C. and another employee were killed, but a fourth employee, who was blown outside the wreck of the building and survived, stated that the first flash appeared to come from the pressing machine.

The theory propounded by the plaintiff, the father of C., admitting that nothing was known of the actual cause of the explosion, nor where it in point of fact originated, assumed that the fulminate had not been sufficiently dampened, and that the existence of this condition indicated carelessness on the part of the foreman, and gave rise to the presumption that the explosion originated in