although not bound to inquire into the existence of an alleged necessity for borrowing.

It was admitted, however, that the money borrowed from the bank was expended by the council upon works within its jurisdiction upon which money lawfully obtained for the purposes of the council might lawfully have been expended; the by-law of 1897 was also admitted, and that the council had issued debentures and raised money upon them, and were willing to pay back to the bank the money borrowed, and were only restrained from doing so by the proceedings in this action.

If the plaintiffs, upon the passing of this by-law, had withdrawn their opposition to the payment of the bank's claim, they would have been entitled to their costs, because they were right up to that point; but they insisted that the council had no right to use the money raised upon these debentures in repaying the bank, because the by-law did not specifically state that the money was to be paid to the bank. There is nothing in the Municipal Act which prevents a council, with the approval of the ratepayers, from raising money for the repayment of such a debt as this. A municipality, having so borrowed money and expended it for the benefit of the ratepayers, is not to be restrained from being honest enough to pay it back.

Appeal dismissed with costs.

J. E. O'Meara, for the plaintiffs.

Aylesworth, Q.C., for the defendants the Molsons Bank.
W. R. Smyth, for the defendant Sweetland, the sheriff.

[BOYD, C., 1ST NOVEMBER, 1897.

PALMER v. MAIL PRINTING CO.

Landlord and tenant-Lease-Agreement as to vacancy-Condition-Breach -Avoidance of lease by lessor-Execution-Company-Corporate seal.

In a lease was a provision that "in case the said premises become and remain vacant and unoccupied for the period of ten days without the written consent of the lessors, this lease shall cease and be void, and the term hereby created expire and be at an end . . and the proportionate part of the current rent shall thereupon become immediately

due and payable, and the lessor may re-enter and take possession

Held, that the term did not cease by the lessee going out and leaving the premises vacant for ten days, but that the agreement embodied in the lease was a subsequent condition, a breach of which could only avoid the lease at the instance of the lessors.

Semble, that a lease by a corporation is validly executed if the corporate seal is affixed by the proper custodian.

Ryckman and C. W. Kerr, for the plaintiff.

J. B. Clarke, Q.C., and Swabey, for the defendants.

[4TH JANUARY, 1898.

BRERETON v. CANADIAN PACIFIC R. W. CO. Action-Jurisdiction of Ontario Courts—Injury to land in another Province -Local or transitory action.

The plaintiff complained that the defendants, by negligent use or management of their line of railway, allowed fire to spread from their right of way to the plaintiff's premises, whereby his house and furniture were burnt. These premises were alleged to be in the Province of Manitoba, where the plaintiff himself resided, and in which the defendants were legally domiciled and actually carried on business. The defendants denied the plaintiff's title to the land upon which the house and furniture were situate.

Held, that the action, as regards the house, was in trespass on the case for injury to land through negligence, and this form of action was, like trespass to land, local, and not transitory, in its nature. The action, therefore, so far as the house was concerned, could not be entertained by the Ontario Court; but aliter as to the furniture.

Companhia de Mocambique v. British South Africa Co., [1892] 2 Q. B. 258, [1893] A. C. 602, followed.

Campbell v. McGregor, 29 N. B. Reps. 644, not followed.
Shepley, Q.C., for the plaintiff.

Aylesworth, Q.C., for the defendants.

[FERGUSON, J., 18TH DECEMBER, 1897.

NEIL v. ALMOND.

Execution-Fi. fa. lands-Lien-Money charged upon land-Proceeding under R. S. O. 1887, c. 111, s. 23-Limitation of actions—Renewal of writ.

The right of an execution creditor under a fi. fa. lands is a "lien; "the money mentioned in it is money "charged upon lands;" taking steps to sell under it is a "proceeding" under s. 23 of R. S. O. 1887, c. 111; and such proceeding under a fi. fa. more than ten years old, even although renewed from year to year, will be enjoined.

W. H. P. Clement, for the plaintiff.

W. H. Blake, for the defendant Almond.

R. B. Beaumont, for the defendants the Canada Permanent L. & S. Co.

[ROSE, J., 5TH JANUARY, 1898.

GOLD MEDAL FURNITURE MFG. CO. v. LUMBERS. Landlord and tenant-Agreement for termination of tenancy—“ Disposing of" demised premises-Notice to quit-False representation-Covenant for quiet enjoyment-Disturbance-Breach-Acquiescence-Damages. The plaintiffs were lessees of the defendant of part of a factory, under a lease made in pursuance of the Act respecting short forms of leases, which contained a proviso that in the event of the defendant disposing of the factory, the lessees should vacate the premises, if necessary, on notice or payment of a bonus. Shortly after the lease was made, the defendant notified the plaintiffs that he had disposed of his interest in the factory premises, and they would be required to vacate the portion occupied by them. The plaintiffs vacated the premises, under protest, and brought this action for damages for fraudulent representations.

By an agreement made between the defendant and G., it was recited that the parties" desire so to manage and deal with the said lands and premises as to cause the same to return an income greater than the expenditure now required to be made;" and it was provided that G. was to have superintendence of the

building and of obtaining tenants at rentals greater than the rentals then being received; that the defendant was to advance money to make improvements; that whatever G. did was to be done for and in the name of the defendant, who was to collect all the rents and returns; the leases to be in the defendant's name, and the tenants to be his tenants. Then there was a provision for a sub-lease of the premises to G. upon the happening of certain events, at a named rent, and for an option for purchase by G. at a fixed price at any time before the expiration of the sub-lease.

Held, that the defendant had not by this agreement disposed of the factory, within the meaning of the proviso in the plaintiffs' lease; but, as the defendant had not intentionally, wilfully, or maliciously misled the plaintiffs, and was acting in good faith upon what he believed to be his rights, there was no false and fraudulent representation to the plaintiff.

Derry v. Peek, 14 App. Cas. 337, followed.

Held, however, that the plaintiff was entitled to succeed for a breach of the covenant for quiet enjoyment of the premises "without interruption or disturbance from the lessor; for where the lessor covenants against his own acts, it is not material whether the act assigned as a breach was lawful or unlawful; and the acts here done were in breach of the covenant, for the defendant had no right to give the plaintiffs notice to quit, and no right to complain that the plaintiffs acted upon the notice without waiting for an action to be brought.

Edge v. Boileau, 16 Q. B. D. 117, followed.

Cowling v. Dickson, 45 U. C. R. 94, 5 A. R. 549, discussed. It was urged that an agreement made after the notice to quit, under which the plaintiffs vacated the premises before the day named in the notice, was an acquiescence in the defendant's demand.

Held, not so; the plaintiff went out under protest, and going out earlier merely lessened the damages.

The damages to be assessed upon the same principle as in the case of an eviction.

S. H. Blake, Q.C., and F. C. Cooke, for the plaintiffs.

Watson, Q.C., and S. C. Smoke, for the defendant.

[STREET, J., 6TH JANUARY, 1898.

WARREN v. VAN NORMAN.

Way-Right of—Prescription—Termini—Slight deviations—Interruptions. The evidence showed that the plaintiff and his predecessors in title had for upwards of twenty years before the commencement of the action used and enjoyed as of right a way over the defendant's land from the plaintiff's land to a highway. The termini a quo and ad quem had not varied during the twenty years; but at two points, about fourteen years before action, one of the plaintiff's predecessors slightly altered the line of the way for the purpose of going round muddy spots, and the user of the original line at these two points was abandoned for the substituted one. These deviations were short as compared with the length of the way.

Held, that they did not operate to do away with the plaintiff's right to claim the way between the termini, that way having been substantially used during the whole period; and the plaintiff was entitled to have his right to the way between the termini declared, but should be confined either to the original or substituted line.

Wimbledon, etc., Conservators v. Dixon, 1 Ch. D. 362; Gale on Easements, 6th ed., p. 327; Rouse v. Bardin, 1 H. Bl. 351; and Payne v. Shedden, 1 M. & R. 382, referred to.

Slight interruptions by the defendant were insufficient to prevent the statute from running.

Carr v. Foster, 3 Q. B. 581, and Flight v. Thomas, 11 A. & E. 688, referred to.

J. A. Hutcheson and A. A. Fisher, for the plaintiff.
Britton, Q.C., and IV. B. Carroll, for the defendant.

IN CHAMBERS.

[BOYD, C., 18TH JANUARY, 1898.

HUYCK v. WILSON.

Arbitration and award-Action to enforce award- Publication-Meaning of -Time for moving against award-Interest-Costs of arbitrationTaxation Judgment-Writ of summons-Special indorsement.

An appeal by the plaintiff from an order of the local Judge