Master and servant—Negligence-Workman's death-How occasioned—

Evidence-Jury-Conjecture.

An appeal by the defendants from the judgment of a Divisional Court, 28 O. R. 73, 16 Occ. N. 374, was dismissed with costs, the members of the Court being divided in opinion.

OSLER, J.A., and FALCONBRIDGE, J., were of opinion, agreeing with the majority in the Divisional Court, that there was evidence from which it might properly be inferred that the accident was caused by the negligence of the defendants.

BURTON, C.J.O., and MACLENNAN, J.A., were of opinion that the evidence was equally consistent with the theory that the deceased's own carelessness caused his death.

McCarthy, Q.C., and R. A. Pringle, for the appellants.
Aylesworth, Q.C., for the respondent.

BOYD, C.]

MAIL PRINTING COMPANY v. CLARKSON.

Bankruptcy and insolvency-Right to prove on insolvent estate-R. S. O. 1887 c. 124, s. 20, s.-8. 4—Claim "not accrued due"-Construction of advertising contract.

Where an estate is being administered under the Assignments and Preferences Act, R. S. O. 1887 c. 124, claims depending upon a contingency cannot rank, but only debts strictly so called.

VOL. XVIII. C.L.T.

D

An advertising contract gave the advertiser, in consideration. of the sum of $1,000, the right to use certain advertising space in a newspaper at any time within twelve months, the advertiser agreeing to pay at the end of each month for the space used in that month, and at the expiration of twelve months, whether the space had been used or not, to pay $1,000, less such sums as might have in the meantime been paid. The advertiser, before using any space, and before the expiration of twelve months, made an assignment for the benefit of creditors pursuant to c. 124.

Held, reversing the judgment of BOYD, C., 28 O. R. 326, 17 Occ. N. 143, that the $1,000 would not necessarily become due by effluxion of time, and that the newspaper company could not rank.

Grant v. West, 23 A. R. 533, applied.
D. E. Thomson, Q.C., for the appellant.
C. J. Holman, for the respondents.

DAW v. ACKERILL.

Church-Incumbent's salary-Liability of churchwardens-Voluntary con tributions.

The churchwardens of an Anglican congregation which has adopted the free pew system, and in which the only revenue is derived from the voluntary contributions of the members, are not liable to the incumbent for the payment of his salary except to the extent of contributions received by them for that purpose.

Judgment of BOYD, C., 28 O. R. 452, 17 Occ. N. 234, affirmed. Clute, Q.C., for the appellant.

S. Masson, for the respondents.

ROSE, J.]

In re CANADIAN PACIFIC RAILWAY COMPANY AND COUNTY AND TOWNSHIP OF YORK.

Constitutional

law-Railways-Highways-Crossings-Maintenance of gates-Apportionment of cost-Railway committee-Railway Act, 1888.

The Railway Committee of the Privy Council, on the application of the city of Toronto, ordered the Canadian Pacific

Railway to put up gates and keep a watchman where the line of railway crossed a highway running from the city of Toronto into the township of York, the line of railway being at the place in question the boundary between the two municipalities, and ordered the cost of maintenance to be paid in certain proportions by the railway company, the city, the township, and the county.

Held, per BURTON, C.J.O., and MACLENNAN, J.A., that assuming the validity of legislation conferring jurisdiction on the Railway Committee, their powers were limited to persons or municipalities invoking the exercise of their jurisdiction, and that their order was invalid so far as it imposed a burden upon the township and county.

Per OSLER, J.A., that the legislation was intra vires, and that the township and county were persons interested within the meaning of the Act, and subject to the jurisdiction of the Railway Committee.

Per MEREDITH, J., that the legislation was intra vires, but that the county was not a person interested, not being under any responsibility for the maintenance of the highway in question.

Per Curiam.-That the decision of the Railway Committee upon a subject, and in respect of persons, within its jurisdiction, cannot be reviewed or interfered with by the Court.

In the result the appeal from the judgment of ROSE, J., 27 O. R. 559, 16 Occ. N. 222, was allowed as to the county of York, and dismissed as to the township of York.

Aylesworth, Q.C., for the appellants the township of York.

C. C. Robinson, for the appellants the county of York. Robinson, Q.C., and Angus MacMurchy, for the respondents, the Canadian Pacific Railway Company.

J. R. Cartwright, Q.C., for the Attorney-General for Ontario.

HESSELBACHER v. BALLANTYNE.

Sale of goods-Executory contract-Possession-Non-payment of price-Loss of goods-Liability.

An appeal by the plaintiff from the Judgment of ROSE, J., 28 O. R. 182, 17 Occ. N. 7, was dismissed with costs, the Court

holding that, on the evidence, the plaintiff had accepted and taken possession of the logs, and not dealing with the point upon which the case turned in the Court below.

Aylesworth, Q.C., for the appellant.

W. M. Douglas, for the respondent.

ROBERTSON, J.J

COLL v. TORONTO R. W. CO.

Master and servant-Damages-Tort-Wrongful act of servant-Scope of

employment.

The master is not liable for the wrongful act of the servant, though done during the course of his employment and intended to promote the master's interest, if it is an act outside the scope of the servant's employment and authority, and is one which the master himself could not legally do.

The defendants were held not liable where the motorman of one of their electric cars, who had no control over or authority to interfere with passengers or persons on the car, pushed off the car, as the jury found, a newsboy who was getting on to sell a paper to a passenger.

Judgment of ROBERTSON, J., reversed.

J. Bicknell, for the appellants.

Aylesworth, Q.C., and L. V. McBrady, for the respondent.

Ship-Sale

LUFFMAN v. LUFFMAN.

Unregistered lien-Notice-Merchants Shipping Act, 1894, (Imp.)

While, under s. 57 of the Merchants Shipping Act, 1894, 57 & 58 V. c. 60 (Imp.), unregistered equitable interests can be enforced as between the parties immediately affected, the effect of s. 56 is that a purchaser from the registered owner takes a title free from unregistered equitable interests, even though he knows of them.

Judgment of ROBERTSON, J., reversed.

W. Nesbitt, for the appellant.

C. J. Holman, for the respondent.

FALCONBRIDGE, J.]

[11TH JANUARY, 1898.

FAWKES v. GRIFFIN.

Receiver-Money in hands of—Payment into Court-Default-Attachment -Order for motion to rescind-Delay-Irregularities-Specific order for payment-Punishment—R. S. O. 1887 c. 67, ss. 6, 11-Understanding between receiver and solicitor-Claim of receiver upon money in his hands.

On the 27th June, 1895, an order was made in this action, by consent, appointing the defendant's solicitor receiver in the action until the 3rd September, 1895, to collect the rents of the premises in question, and directing that he should pass his accounts before the Master and pay into Court the balance which might from time to time be certified to be in his hands. On the 28th August, 1895, the plaintiff's solicitor wrote to the receiver asking that the matter might remain as it was until October. The receiver swore that he thereupon called on the plaintiff's solicitor, and an understanding was arrived at between them by which he was to continue to act as receiver until a motion should be made to dissolve or continue the injunction, and that all moneys which he collected as receiver were to remain in his hands until the disposition of the action, when he undertook to pay them over, and on this understanding he consented to allow the motion to continue the injunction to stand sine die. In October, 1895, the receiver passed his accounts, and on the 22nd of that month the Master certified that the sum of $266.64 was in the receiver's hands to be paid into Court as directed by the order. The receiver not having paid the money into Court, the plaintiff's solicitor, on the 12th November, 1895, wrote to him requesting him to do so; and the receiver answered on the same day saying that, according to any orders or reports that had been made, he had not ascertained any date within which the money should have been paid into Court; that he was awaiting a specific order for that purpose, and as soon as such order was made, or at any time, he was prepared to pay into Court the money he had received. On the 27th November, 1895, notice of motion was served by the plaintiff for an order to commit the receiver to gaol for his contempt in not paying into Court the sum found due, and on the 10th December, 1895, no one appearing to oppose the motion, an order was made by BoYD, C., requiring the receiver within ten days to pay the amount into Court, and that in default of his