KEITH v. INTERCOLONIAL COAL MINING COMPANY.

Railway company—Crossing-Negligence of Company's employees—Injury caused by a locomotive.

While plaintiff was passing over the track of the railway operated in connection with defendant's mines he was knocked down by a locomotive and crippled for life. At the point where plaintiff was injured there were four tracks, including sidings, between the workmen's houses and the Works, which the men were obliged to cross twice a day, and over which children frequently crossed to carry food to men working in the pit. The crossing had been so used for sixteen years, and at the time of the accident, was used as a road for horses and carts. The common practice was to blow a whistle when engines were moving about, but, on this occasion, no whistle was blown, and the view of the track was obstructed by some box cars which had been left standing upon a siding close to it. The instant plaintiff passed the box cars he was warned of his danger, but he was struck by the engine before he had time to escape.

Held, that the damage was the direct result of the negligence of the servants of the defendant company, for which the company where liable, and that there was no evidence of negligence on the part of the plaintiff. Davey v. London and S. W. Railway Company, 11 Q. B. D. 213, distinguished. Verdict for plaintiff sustained.

MOFFATT v. FERGUSON.

Assignment for benefit of his creditors-Interest in shipping not transferred by-Rights of judgment creditors as against assignee-Merchants Shipping Act-Execution-Replevin.

W. H. M. made an assignment to plaintiff for the benefit of his creditors of his entire property, including a number of shares in the schooner G. W. Moore, but no bill of sale of the shares, as required by the Merchants Shipping Act, was either executed or delivered to plaintiff. D. and M. having obtained a judgment against W. H. M., issued a writ of execution, under which defendant, as sheriff, levied upon the share and proceeded to sell. Prior to the sale plaintiff appeared before the Registrar of Shipping, and, after making a declaration of ownership, was entered upon the register as owner of the shares.

Held, that plaintiff had no equitable right which could be so asserted, or which could prevail over the judgment creditor and the levy made by the defendant.

In re WILSON.

Mandamus-King's College-Dismissal of a Professor-Powers of the Board of Governors-Powers of Visitors—Affidavit headed "in the matter of an application intended to be made," held good.

An application was made for a mandamus to compel the governors of King's College, Windsor, to restore W. E. W., a professor of the college, to certain offices from which he had been dismissed for having published in a public newspaper a letter " incompatible with the relation of a professor to the governing body and the superior officers of the university" and manifesting "a contempt of authority likely to lead to subversion of discipline," etc. The college was incorporated nnder an Act of the Legislature of Nova Scotia in 1789, and a charter was obtained from the Crown. Thirteen years later letters patent were issued by the Crown appointing the Bishop of Nova Scotia visitor of the college. In 1853, a provincial Act was passed repealing the former Act and reappointing and re-incorporating the Board of Governors, giving them power to make laws and ordinances for the regulation and management of the college, and providing that the Bishop of Nova Scotia for the time being should be ex officio a Governor of the College, President of the Board, and Visitor. By the original Act an annual charge was made upon the revenue of the province for the purpose of purchasing lands and erecting buildings and certain public officials were made ex officio members of the Board of Governors.

No notice was given to the professor of the proceedings which terminated in the sentence of removal.

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The affidavit upon which the application for the mandamus was made was headed In the matter of an application intended to be made to the Supreme Court for a mandamus," etc.;

Held, per Thompson and Rigby, JJ., and Macdonald, C.J., that the mandamus should issue; that the professor was entitled to notice; that the college being a public corporation established by public statute, and the Visitor being deprived of the power to dismiss, the wide range of powers incident to the office of Visitor at common law, were not conferred upon him, and the Court, therefore, had power to hear the motion; that the office of professor was one in relation to which mandamus would lie. Also, that the heading of the affidavit upon which the application was made was mere matter of description, and was distinguishable from the heading of the affidavit in Re Peter Ross, 2 R. & C. 596.

Weatherbe and McDonald, JJ., dissented on the ground that the sole appeal from the decision of the Board was to the Visitor, and the latter, on the further ground that the heading of the affidavit was bad.

RAMIE v. WALKER.

Negligent driving-Collision-Contributory negligence-Verdict for defendant

sustained.

Plaintiff and defendant were driving in opposite directions along the public highway after dark, when a collision occurred by which plaintiff's carriage was overturned and plaintiff seriously injured. At the time of the collision defendant's team was being driven slowly along the middle of the highway, but it appeared that there was sufficient room at either side for plaintiff to pass, and also, that plaintiff saw defendant's team approaching in sufficient time to have drawn up and thus avoided the collision.

Held, that in an action brought by plaintiff for negligence, the jury were justified in finding a verdict for defendant. Where the highway is used in the customary way, or in such a way as circumstances may make necessary, evidence of actual negligence must be given.

WHITMAN v. PARKER.

Bill of exchange-Failure of consideration-Contract for sale of shares in a ship-Partial destruction of subject matter of the contract before acceptance- -Introduction of a new element.

Defendant was the drawer of a bill of exchange given in payment for certain shares in a vessel called the Lawrence Delap, then discharging a cargo at New York. Payment of the bill was resisted on the ground that at the time of the completion of the contract and the transfer of the shares the vessel had been totally destroyed by fire and had ceased to exist, and that there was therefore no consideration for the bill at the time it was delivered. The evidence showed that on the morning of the day on which the bill was delivered and the transfer made, the vessel took fire, and that before the transfer was made her mast had fallen, the inside had been gutted, the decks burned and part of the sides. In this condition the vessel was towed out into the harbour and scuttled. The hull was subsequently raised and sold; the price realized being $500 less than the cost of raising it. The hulk was subsequently converted into a coal barge, Held, Rigby, J., dissenting, that there was not such a total failure of consideration as to form a defence to an action on the bill.

The negotiations for the sale were conducted by correspondence. On July 9th, 1883, plaintiff wrote that he was prepared to make the transfer on payment of a specified price. On the 11th, defendant telegraphed

plaintiff, "will see you first next week, pay for ten shares Delap and take title." The fire and the delivery of the bill sued on took place on the 19th.

Per Weatherbe, J. The contract was completed by the telegram of the 11th, and the property would pass notwithstanding the postponement of the time of payment by the defendant.

Per Rigby, J. The postponement of the time of payment introduced a new element which would require acceptance to constitute a complete contract.

LETTENEY v. DILLON.

Appointment of Commissioners of streets-Rotation system continued.

Held, McDonald, C.J., dissenting, that section 16, of chapter 49, R. S. 4th series, providing for the retirement of Street Commissioners by rotation, applies to the appointment of Commissioners by the Municipal Council mutatus mutandis.

MCINTOSH v. McLEOD.

Promissory note-Indorsement after maturity -Holder for value without notice-Sale of growing trees-Misrepresentation-Statute of FraudsStamp Act-Note insufficiently stamped-Double stamped after repeal of Act-Estoppel.

Defendants purchased a quantity of growing trees and gave in payment herefor their promissory note, which after passing through the hands of wo other holders, and after it became due, was indorsed to the plaintiff or value and without notice.

To an action by plaintiff to recover the amount of the note, defendants pleaded among other things

1. That they were induced to make the note by fraud.

2. That there never was any consideration for the note, inasmuch as he trees in payment for which it was given, were not of the character and number represented, and were worthless and unmerchantable.

3. That the note was not properly stamped. A defence was also raised under the Statute of Frauds on the grounds—

1. That the trees were goods and merchandise, and there was no receipt or acceptance of the goods and no part payment.

2. That the contract having been made in reference to growing trees, required a note or memorandum in writing.

It appeared from the evidence that there was no warranty as to the condition of the trees, that the defendants had an opportunity of examining them before making the contract and that they asked to be relieved after the contract was completed, on another ground than the misrepresentation alleged.

Held (i), that the plea of fraud and misrepresentation was not made out. (ii) That the contract for the sale of the trees had no connection with any interest in land. (iii) That the defendants could not set up want of consideration for the note as a defence to an action by an innocent holder.

At the time the note came into the hands of the plaintiff it was insufficiently stamped, and plaintiff, immediately on becoming aware of the defect affixed double stamps. The Dominion Stamp Acts including the Act in reference to double stamping, were then repealed. It was contended that the note was void for want of proper stamps, and that by the repeal of the Act the right to double stamp had been taken away. Held, that the note was properly double stamped by plaintiff, and that the objection to his right to double stamp could not prevail, the right to double stamp continuing notwithstanding the Act. Macdonald, C.J., dissented on the ground that the contract was one on which the original payees could not recover under the Statute of Frauds, and the plaintiff stood in the same position, the note having been indorsed to him after maturity.

CREELMAN v. MCMULLEN.

Award-Finding beyond jurisdiction - Publication

Absence of one arbi

trator.

Plaintiff claimed that the defendant was indebted to him for work and labour in sawing logs of the defendant, and defendant claimed a set-off. The matter was referred to arbitrators who made an award in favour of defendant, and added a finding that the logs remaining unsawed were defendant's property.

Held, that this finding was outside of the jurisdiction of the arbitrators, but being clearly separable from their finding on the matters within their jurisdiction, was a mere nullity not affecting the validity of the award.

The submission empowered the arbitrators, or any two of them to make an award. The three arbitrators sat, and read all the evidence. and adjourned to meet at Halifax; but the award was executed by two of the arbitrators in the absence of the third, who did not attend the meeting, of which he had notice, and at which the award was signed. The award was filed on the same day with the prothonotary of the county in which the cause was pending, enclosed in an envelope, and on