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In a lease, the lessee covenanted not to assign without license, and the lessor covenanted not to withhold his license" unreasonably or vexatiously." Held, that it was unreasonable and vexatious in the lessor to refuse his license to assign to a person wholly unobjectionable, his object in refusing being avowedly his wish to get a surrender of the lease for the purpose of rebuilding. The court decreed the lessor to concur in the assignment, and directed an inquiry to assess the damages to be awarded to the assignee for refusal of the license. Lehmann v. MeArthur, Law Rep. 3 Eq. 746.

PROXIMATE CAUSE-REWARD.-On the trial of an action for reward, offered by the defendant "to any person who will give such information as shall lead to the apprehension and conviction of the thieves" who had stolen watches and jewelry from his shop, it appeared that, about a week after the theft, R., having brought one of the stolen watches to the plaintiff's shop, the plaintiff gave information, and R. was appreheaded the same day; that, after two or three days, R., being in custody, told where some of the thieves would be found; that they were appre. bended there a week afterwards; that they were subsequently convicted of the theft, and that R was convicted as receiver. Held, that the judge tad properly left the evidence to the jury, pointing out the remoteness of the information; and that a verdict for the plaintiff ought not to be set aside.-Turner v. Waiker (Exch. Ch.), Law Rep. 2 Q. B. 301.

RAILWAY.-The general manager of a railway has authority to bind the company to pay for medical attendance for a servant of the company injured by an accident on the railway.- Walker v. G. W. R. Co., Law Rep. 2 Ex. 228.

WATERCOURSE-FOULING.—Where there is a prescriptive right to foul a stream, the fouling cannot be considerably enlarged to the prejudice of others; and the fact that the stream is fouled

by others is no defence to a suit to restrain the fouling by one-Crossley & Sons v. Lightowler, Law Rep. 2 Ch. 478.

C., wishing to prevent a river's being fouled by some dye-works, purchased from the owners of the works some land on the river, without telling them his object. Held, in the absence of any express reservation, by the owners of the works, of the right of fouling, C. could maintain a suit to restrain it [b.

Where dye-works had not been used for twenty years, and had been allowed to fall into ruin, and there appeared no intention of erecting new ones, held, that the right of fouling a stream attached to them had been abandoned, and lest-Ib.

FIRE INSURANCE-POLICY NOT UNDER SEALAGENT'S POWER TO BIND CO. BY PAROL-WAIVER OF CONDITION-Pleading.-One of the conditions of a fire policy, not under seal, issued to plaintiff by defendants, an Insurance Co., was, that no suit of any kind should be sustained in any Court against the Co. for the recovery of any claim. unless brought within six months after damage occurring to the insured. Within this time plaintiff presented his claim for loss, when it was agreed by parol between him and one D. acting for defendants, that if plaintiff would not prosecute his claim until S, returned from Englaud, defendants would pay the same and take no advantage of the limitation clause above referred to. The insurance had been effected by and through D, and the premiums paid to him, or to S., who was associated with him in the management of the Co., and the policy signed by D. as manager for the said Co. in Upper Canada," under an express authority from the directors, two of whom subscribed their names to the same opposite a seal, with the name of the Co. upon it. It also appeared that after the expiration of the six months, there had been an actual tender of payment, though of a lesser sum than that claimed, by the agent of defendants to plaintiff : Held, that D. had power to bind the Co. as their agent, and that what had taken place between him and the plaintiff amounted to a waiver in law of the six mouths' condition, aud that the plaintiff was therefore entitled to recover.

Remarks upon the impropriety of Insurance Companies setting up defences of the kind indicated, instead of any bona fide reason that may exist for resisting claims made against them.

Observations on the premature introduction into the declaration of the averment as to the six months' limitation of time, instead of leaving it to be pleaded by defendants.-Brady v. The Western Insurance Co. (Limited), 17 U. C. C. P. 597.



(Reported by S. J. VANKOUGHNET, Esq., Barrister-at-Law, Reporter to the Court.)


Fence-viewer's Act (C. S. O. U. ch. 57)-Non-compliance with
award-Restriction to statutory remedy-Pleading.

The declaration was against the defendant as owner of a
lot adjoining the plaintiff's land, alleging the existence of
a large quantity of surplus water upon both lots; that
both parties disputed as to their respective rights and
liabilities under the Fence-viewers Act (C. S. Ü. C. ch.
57), and steps were thereupon taken to procure an award
under said Act, which was accordingly done, and an
award made in the presence and with the assens of both
parties. The declaration then went on to recite the award
verbatim, which directed two ditches to be made by the
parties, one by each, and concluded thus, "said ditch to
be made before the 1st October, 1865." Plaintiff then
averred performance of the award on his part, but a neg-
lect and refusal to perform it on the defendant's part, and
claimed damages for such neglect and refusal: Held, on
demurrer, that the declaration was not bad as failing to
disclose a case which gave the fence-viewers jurisdiction,
which it sufficiently did, but that it was bad as setting
out an award which did not fix the time each party should
have, within which to perform his share of the ditching,
or direct where such ditching should be made; and also
for not shewing that a demand in writing had been made
on the defendant to perforin the award, the non-compli-
ance with which would have entitled the plaintiff under
the Act to have completed the ditch and sued for the
price fixed, instead of bringing an action for damages,
which could not be maintained.

The eleven sub-sections of section 16 of the above Act. re-
fer to ditches and water-courses as well as fences.
[C. P., M. T., 31 Vic. 1867.]

The declaration is sufficiently stated in the hend note.

The defendant pleaded a plea, which was demurred to, and to which it is unnecessary further to refer, as the judgment of the Court turned on the following, among other exceptions to the declaration, which were given notice of by the defendant:

1. That the declaration does not set out such a case of action, as gives jurisdiction to fenceviewers under the Statute.

2. It does not appear that the fence-viewers were satisfied that the defendant was duly notified of the meeting.

3. The length of time the plaintiff and the defendant had respectively to open the ditches does not appear to be stated in the award, which is consequently bad.

5. That no demand in writing appears to have been made on the defendant to perform the award, and had such been made the plaintiff might and ought to have finiseed the ditch and sued for the price.

7. That the place to dig or open the watercourse is not definitely stated in the award.

McMichael, for the plaintiff, referred to and commented upon the Fence-viewers Act, secs. 13, 14, and Russell on Awards, 505.

Read. Q. C., contra, referred to secs. 3, 14, 16, of the above Act, and B. & L.'s Prec. 424.

J. WILSON, J., delivered the judgment of the Court.

on several The declaration is objected to grounds. As to the first, we think it does set out a case which gave the fence-viewers jurisdiction. It sets out all the circustances mentioned in the seven sections of the 22nd Vic., ch. 57, and that

a dispute had arisen in regard to the rights and liabilities of these parties, as mentioned in the fifth section.

We think there is nothing in the second objection the proceedings of the fence-viewers are alleged to have been conducted, and the award made in the presence of both parties, and with their assent.

We think the third objection is good. The twelfth section requires that the fence-viewers, shall decide what length of time each of the parties shall have to make his share of the ditch. The award says, "Said ditch is to be made before the first day of October, 1865." On reading it two ditches are spoken of; one to be made by the plaintiff, another by the defendant, beginning at the same fence. The last ditch spoken of in the award is the defendant's. If the time applies to hers, there is no time for the plaintiff to make his; if it applies to the plaintiff's ditch, there is no time specified for the defendant to make hers. It does not appear by the award that it is to be one continuous ditch, but rather two ditches, and is bad for not appointing the time for both parties to make it, and where it is to be made


The fifth objection we think well founded, and In Berkeley v. it puts an end to the action. Elderkin, 1 El. & B. 805, the principle is recognized, that where new rights are given, with specific remedies, the remedy is confined to those specially given." Much that was said by Lord Campbell applies with great force by analogy here. In clearing our forests, much inconvenience was felt in many places from the land being wet, and as the tracts granted to settlers were small, it was frequently impossible to drain one lot without trespassing upon another, or for one man to drain his land without the assistance of others equally interested in draining theirs, while without such drainage the land could never have been cleared and cultivated. In view of this the Legislature, in providing for the rights and liabilities of adjacent proprietors with regard to fences, provided for a simple and cheap system of opening ditches or water-courses, by the 8th Vic. cap. 20, secs 12. 13, 14. This Act imposed the duty on those who were interested in drains to contribute a just share; it gave the right to make ditches across the lands of those who were not interested, and where disputes arose, it enabled the parties to apply to the fence-vicwe rsto award concering their disputes. It providedthat if any party neglected or refused, upon demand made in writing, to open, to make and keep open, his share awarded to him by the fenceviewers, within the time allowed, either party, after completing his own part, might open the part of the party neglecting or refusing, and be entitled to recover not more than two shillings per rod from the party neglecting or refusing to open his share, in the same manner as the Act provides for payment of line and division-fences.

But our attention has been called to the fact, that, in the consolidation of this Act by the 22 Vic. cap. 57, while section 16 enacts that to ascertain in the amount payable by any person, who, under the authority of this Act, makes or repairs a fence, or makes, open, or keeps open any ditch or water-course, which another person should have done, and to enforce the payment of such amount, the following proceedings shall be taken, the eleven sub-sections refer to fences

only, and ditch or water-course is omitted. upon which, it is contended that there is no remedy to recover the amount payable in respect to a ditch

or water-course

We do not think so. When we see that this section, as well as those which precede it, respeeting ditches or water-courses, gives the right to recover from the dafaulting party the amount of work the other performs, upon his default, not exceeding in price per rod fixed by the Statute, we think we should not be justified in holding that, because in prescribing the proceeding for its recovery, the Legislature had omitted to repeat the word ditches or water-courses, it intended to withhold that which it had so clearly given. Looking at the provision of the original Statute and of this, we are of opinion that the proceedings mentioned in the eleven sections of section 16, have reference to ditches or water-courses, as well as to fences. In Doe Murray v. Bridges 1 Bar, & Ad. 858, it is said by Tenterden, C. J. : “We are to look at the Act to learn by what mode the intention is to be carried into effect."

In this view of it, it follows that this plaintiff had his remedy under this Statute and no other; that he ought to have demanded of this defendant performance of this award, and if she made default, that he ought to have opened her ditch, and compelled her to pay for it under the provisions of this Act: The Vestry of St. Pancras v. Batterbury, 2 C. B. N. S 477. Cockburn. C. J., at page 486, says: "Where an Act of Parlia ment creates a duty or obligation, and gives a remedy for a breach of it by a peculiar proceeding, a que-tion arises whether the remedy so provided is the only one to be had recourse to, or whether it is cumulative."

Here, as in that case and for similar reasons, we think the Legislature intended that the summary proceeding pointed out should be the only


To hold otherwise would, we think, open an appaling source of litigation ruinous to all concerned in it, and opposed to the spirit and intention of the Legislature, whieh, we think, was, to place in the hands of either party interested the right to specific performance of the the relief sought, but not damages by suit for non-performance of it.

Judgment for defendant on exceptions to declaration.


(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law, Reporter in Practice Court and Chambers.)

BROOKE V. THE BANK OF UPPER CANADA. Corporation-Forfeiture of bank charter-Effect on tenure of office by president and directors-Service of process, Service of process was made upon A. as president of a bank. The last election of officers was in June, 1866, when A. was elected president for one year. No election of directors or president had taken place since then, and A. never in fact resigned his office as president. In September, 1866, the bank suspended specie payment, and before 60 days thereafter they assigned their property and assets to trustees, and from thence had ceased to do business as a bank. It was provided by the charter, amongst other things, that a suspension of specie payment for sixty days, or an excess of the debts of the bank by three times the paid up stock and deposits, &c., should operate as a forfeit of the charter, &c. Had, 1. That the total annihilation of the bank was not contemplated by these provisions, and it does not follow

from the loss of the charter that there must be a dissolution for all purposes.

2. That some formal process is necessary finally to determine and put an end to all the functions of a corporation. 3. That notwithstanding the suspension and assignment, the bank was still a corporate body, liable to have its property sold or administered for the satisfaction of debts. 4. That A. must still be looked upon as the president of the bank, and an application to set aside the service upon him was discharged with costs.

[Chambers, October 10, 1867.)

This was a summons to set aside the service of process made upon Mr. Allan, who was served as president of the Bank of Upper Canada, upon the ground that the bank having suspended specie payments for more than sixty days consecutively, a forfeiture of their charter had been created,' and that there existed no such corporation as the defendants were represented to be, and that even if there were such a corporation, that Mr. Allan was not the president, or an officer of the bauk.

It appeared from the affidavits filed that the last election of officers was in June, 1866, when Mr. Allan was elected president for one year, and that the bank suspended specie payments in September, 1866; and before sixty days therefrom, the bank (on the 12th November, 1866) assigned, with the consent of the shareholders, all their property and assets to trustees, and had ceased from that period to do any business as a bank. That no meeting was held in June, 1867, for the election of directors and president, and that Mr. Allan had never in fact resigned his office of president.

Maclennan shewed cause. He contended that the bank did exist in fact as a corporation, notwithstanding the forfeiture of the charter; that properly its corporate powers could not be determined, whether by suspension of specie payments or by the assignment of its assets, except by proceedings taken for that purpose, and that the officers last elected, and who had never resigned, must be considered to be the proper officers of the bank for service of process and other purposes. He referred to the act of incorporation, 19 & 29 V. c. 121, secs 7, 8, 33, 35, 36; Grant on Banking, 462, 539; Stewart v. Dunn, 12 M. & W. 655; Grant on Corporations, 283, 295, 301, 305, 306, 309; Angell & Ames, on Corporations, sec. 777.

G. D. Boulton supported the application, and argued that the forfeiture of the charter, which, it was expressly declared by statute, should follow in the event of suspending specie payments, was in fact a dissolution, or was equivalent to a dissolution of the corporation; and, in such a case there could be no longer any officers of the corporation, for the corporation itself was utterly gone and determined, and the service itself was therefore irregular. Slee v. Bloom, 19 Johnston, 456; Kyd on Corporations, 447. 515; 1 Bl. Com. 500, 501; Angell & Ames on Corporatious, sec. 779; 19 & 20 Vic. secs. 2, 7, 8, 32.

ADAM WILSON, J.-By sec. 7 of the act, ten directors are to be elected annually at a general meeting of the shareholders, to be held annually on the 25th of June, and the directors elected. shall be capable of serving as directors for the ensuing twelve months; and at their first meeting after such election the directors shall choose out of their number a president and vice-president, who shall hold their offices during the same period.

By section 8, if an election of directors be not made on the day fixed, the corporation shall not be taken or deemed to be dissolved, but such election may be made at a general meeting of the shareholders, to be called for that purpose; and the directors in office when such failure of election takes place, shall remain in office until such election is made.

By section 33 a suspension by the bank of payment on demand in specie, of the notes or bills of the bank payable on demand, shall, if the time of suspension extend to sixty days consecutively, or at intervals within any twelve months, operate as and be a forfeiture of its charter, and of all and every the privileges granted to it by this or any other act.

By section 35, in case the debts of the bank exceed three times the stock paid in, and the deposits made in the bank in specie and government securities for money, or in case the total amount of the bills or notes of the bank intended for general circulation shall at any time exceed the amount by the act directed, the charter and all the privileges of the bank shall be forfeited, and the directors, under whose administration the excess shall happen, shall be liable jointly and severally in their private capacity; but such action or actions shall not exempt the sald bank or its lands, tenements, goods or chattels, from being also liable for such excess.

By section 36, in case the property of the bank become insufficient to liquidate the liabilities thereof, the shareholders in their private capacity shall be liable for the deficiency thereof, but to no greater extent than to double the amount of their respective shares.

By section 38, if the bank shall advance or lend to or for the use of any foreign prince, power or state, any money or security for "then and from thenceforth the said money, corporation shall be dissolved, and all the powers, authorities, rights, privileges and advantages granted to it by this or any other act shall cease and determine."

The section which declares that the charter shall be forfeited in case the debts of the bank shall exceed three times the paid up stock and deposits, expressly provides for the bank, as well as the directors individually who are culpable, being proceeded against, and the lands and chattels of the bank being also followed.

The total annihilation, therefore, of the corporation is not contemplated by this section, and I see no reason why it must necessarily be annihilated under the other section relating to the suspension of specie payments, where the same kind of language is used as to a forfeiture of the charter.

The language in both of these sections is different from that used in the 38th section, which probibits the lending to foreign powers. In this last case, "the corporation is thenceforth to be dissolved, and all its powers, &c., are to cease and determine." It does not follow that there must in all cases be a dissolution for all purposes: Mayor of Colchester v. Brooke, 7 Q. B. 382; Woodbridge Union v. Colneis, 13 Q. B. 285, and I think it would require a process of some kind formally to determine the corporation.

It would not surely be permitted to a defendant who was sued on his promissory note to the. bank to plead in bar of the action a forfeiture of

the charter by reason of the suspension of specie payments for sixty days, or that the bank debts exceeded three times its paid up stock and deposits, or that the bank was dissolved because it had made a loan to a foreign power.

There are appropriate remedies prescribed for each case, and nothing could be more inconvenient, perplexing and dangerous than to try so important a question upon a merely collateral issue, and I think the cases show that this will not be allowed: The Queen v. Taylor, 11 A. & E. 949; The Attorney-General v. Ayon, 33 Beav. 67; 9 Jur. N. S. 1117; 9 L. T. N. S. 187; Reg. v. Jones, 8 L. T. N. S. 503.

When all the members of a corporation are dead, so that there is no one to proceed against, and there is no corporate body in fact or in law remaining, there must be an absolute dissolution without any process, from the actual necessity of the case; but as a general rule nothing short of a determination by some judicial power will. it seems, put an end to the existence of the functions of a corporation.

In my opinion the Bank of Upper Canada is notwithstanding the suspension of specie payments for more than sixty days and notwithstanding the assignment made to trustees, still a corporate body, liable to be sued and to have its property sold or administered for the satisfaction of debts, because it has not formally been dissolved, and because, although not formally dissolved, I am not satisfied it might not still be a corporation for the purpose of being wound up, or sued for the purpose of reaching its property and effects in satisfaction.

The general purport of the act is to enable depositors and other creditors, notwithstanding a forfeiture of the charter, to recover their debts, while the argument for the bank is that such persons have absolutely forfeited their claims, or that their only redress is now against the trustees.

I think this is not so. Then it was argued that at any rate the service upon Mr. Allan, for the reasons before stated, was invalid.

It is clear by section 8 that the directors last elected still remain in office, at any rate until they resign it, and Mr. Allan, it is said, has not resigned; and it is clear by section 7 that the president whom the directors elect is to remain in office as such president during the same period as the directors remain in office, so long, at any rate, as they remain in office under the 7th section, which is for the ensuing twelve months from the annual meeting and election of directors on the 25th of June. But I am opinion that on a fair construction of the act the president, who must also be a director, remains in office as such president when a failure to elect directors has taken place, until the new election of directors, and the appointment of a new president has been made.

If this were not so, great difficulty might perhaps be occasioned by the loss of an integral part of the corporation.

If I am in error on either point the application can of course be reversed in the full court.

In the meantime I discharge the summons, and as it was moved with costs I discharge it with costs.

Summons discharged with costs.


Local Courts' and Municipal Gazette.







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