Quare, whether a common defendant can obtain a consolidation order against the will of the several plaintiffs.

Atkinson, Q.C., J. M. Clark, and J. A. Walker, for the plaintiffs. M. Wilson, Q.C., for the defendants.

[ROSE, J., 19TH NOVEMBER, 1890.

MCBRIDE v. CARROLL.

Notice of trial-Sufficiency of—Mistake in date—Jury notice—Time—R. S. O. c. 44, s. 78, 8-8 (2)—Non-jury sittings.

The plaintiffs on the 31st October, 1890, served notice of trial in these words:" Take notice of trial of this action at Osgoode Hall, at the Chancery Sittings, for the 17th day of October, 1890." A sittings of the High Court for trials, to be held by a Judge of the Chancery Division, at Osgoode Hall, had been fixed for the 17th November, 1890.

Held, that the notice was sufficient; for it gave such notice as imparted knowledge.

The sittings of the 17th November was not a jury sittings. On the 10th November, 1890, the defendant served a jury notice. Held, that this notice was bad; for it was not served at least eight days before the sittings at which the action was to be tried, as required by R. S. O. c. 44, s. 78, s-s. (2).

A. Hoskin, Q.C., for the plaintiffs.
Neville, for the defendant.

[MACMAHON, J., 26TH NOVEMBER, 1890. ROSS v. BUCKE.

Pleading-Rules 384, 388, 389—Pleading and demurring without filing affidavit and without leave-Separate causes of action-Frivolous demurrer.

Where a statement of claim sets up in different paragraphs more than one cause of action, the defendant may under Rule 884 plead to one and demur to another without filing the affidavit mentioned in Rule 388 or obtaining leave under Rule 389.

A demurrer to a claim for wrongful dismissal, which does not allege a hiring by the day, or week, or month, or otherwise, cannot be said to be frivolous.

D. Armour, for the plaintiff.

M. G. Cameron, for the defendant.

[STREET, J., 29TH NOVEMBER, 1890.

KNIGHT v. TOWN OF RIDGETOWN.

Notice of trial-Service by plaintiff on two defendants-Set aside on application of one-No notice to the other-Costs of the day.

Where there were two defendants and notice of trial was given by the plaintiff to both, and set aside upon the application of one without notice to or knowledge of the other, who attended with his witnesses at the time and place named in the notice :

Held, that the defendant who moved against the notice of trial was not bound to give the other defendant notice of the motion; that it was the duty of the plaintiff, if he desired to protect himself, to notify that defendant that the notice had been set aside; and therefore the plaintiff should pay the costs of the day.

Langton, Q.C., for the plaintiff.

Hoyles, Q.C., for the defendants the town of Ridgetown. D. W. Saunders, for the defendants the Canada Southern R. W. Co.

[O'BRIAN, CO.J., 12TH MARCH, 1890.

REGINA EX REL. BRADLEY v. CROSS.

Municipal elections-Jurisdiction of County Court Judge-Municipal Amendment Act, 1889, s. 46.

On 8th February, 1890, the County Judge of the united counties of Prescott and Russell granted a fiat for leave to serve a notice of motion under Rule 1038, to try the validity of the election of the respondent as Reeve of the township of Caledonia in the said united counties. The proceedings were intituled in the High Court.

On the return of the motion it was objected that the Judge had no jurisdiction either as local Judge of the High Court or County Court Judge to authorize the proceedings taken in the High Court, and that the proceedings should have been taken in the County Court.

C. G. O'Brian, for the relator.

Maxwell, for the respondent.

O'BRIAN, CO.J.--All the clauses of the Municipal Act from 187 to 208 inclusive, in my opinion, clearly show that it is the High Court to which resort is to be had to try the validity of municipal elections, and that has always been the practice. Where a County Court Judge formerly granted a fiat for the issue of a writ of summons in the nature of quo warranto he acted not simply as a County Court Judge, but as a person specially named in the statute. See the judgment of the Court of Appeal in Grant. v. Coleman, 7 A. R. 619.

By the Consolidated Rules of Practice 1038-1044, a new procedure by notice of motion was substituted for the old writ of summons and as the County Court Judge was not named in these Rules it was held in Regina ex rel. Dougherty v. McClay, 13 P. R. 56, that his jurisdiction had been superseded, while at the same time his jurisdiction as local Judge of the High Court in this respect was also curtailed by Rule 41. That case was decided 11th March, 1889, and on 23rd March, 1889, the Municipal Amendment Act, 1889, was passed, s. 46 of which enacts "A Judge, etc." Under this section I hold that I had as County Court Judge power to grant a fiat for leave to the relator or plaintiff to serve notice of motion returnable before me as Judge of the County Court, although the proceedings are taken, and I hold properly taken, in the High Court. I am asked to infer from this section that the jurisdiction to try the validity of municipal elections which has always appertained to the Superior Courts is extended to the County Courts. I cannot draw that inference, and it is not necessary. My authority is not derived through the Consolidated Rules of Practice, but through the section just quoted, and I act in the premises as a person specially named in that section and not as local Judge of the High Court nor by virtue of any power conferred upon me by the Judicature Act or by the Consolidated Rules of Practice.

Judgment adjudging respondent disqualified and declaring seat

vacant.

NEW BRUNSWICK.

In the Supreme Court.

[EQUITY SIDE; PALMER, J., 12TH NOVEMBER, 1890.

NEALIS v. JACK.

Will-Construction of-Devise-Rule in Shelley's case-Married woman— Restraint on anticipation-Duration of trust Trustee's commission.

This was a suit to administer the estate of W. in the hands of the defendant Jack as administrator and trustee under her will, the material part of which was : "I give and devise all my real and personal estate wheresoever situate unto the said Isaac Allen Jack, executor and trustee as aforesaid, his heirs and executors, to hold the same to the uses and trusts following; that is to say, to the sole use of my daughter Jane during her natural life, and after her decease unto the use of her heirs, and I hereby will and devise that my said executor and trustee shall sell and dispose of any real or personal estate that I may die seised of or possessed of, after payment of my just debts and funeral and testamentary expenses, to invest the proceeds in such securities as he may think fit, and he shall annually or semi-annually pay the interest accruing on such securities to my aid daughter Jane, and in case of her death to her children."

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The action was brought by the daughter Jane, who was at the date of the will and of the action the wife of the plaintiff Hugh Nealis; and the defendants were her children and the trustee.

:

PALMER, J.-The first question that arise 3 in this case is what is the effect of the devise? Have the childre a any interest in the devise ? I think they have not. Whether they have or not depends upon whether by the first clause the use is given to the

female plaintiff absolutely without any remainder over, and I think that is clearly so. There can be no doubt that this is so if the first clause means that she is to have it during her natural life and after her decease her heirs. In such case under the rule in Shelley's case, the word 'heirs' would vest the estate in the ancestor. If the devise and in case of her death '-meaning the death of the female plaintiff to her children' is to operate by the same rule, the female plaintiff would only be entitled to it during her lifetime, and the remainder would vest in her children after her death, but it is clear, I think, that this latter devise is merely substitutionary in case the female plaintiff died in the lifetime of the testatrix, in which case it would be vested in her children if she had any.

This point being disposed of, the next question that arises is, when does the trust end? It is clear that the will directs that the trustee is to invest and hold the property and only pay the interest as he shall see fit to the female plaintiff; therefore I am satisfied that the testatrix's intention is sufficiently apparent that at all events it should be held in trust for some period. What period, it is extremely difficult to determine; but in view that the beneficiary was a married woman and under certain disability, and certain discretionary powers were vested in the trustee, I think I am bound to consider that the testatrix had some object in it, and I cannot conceive of any other but that she being a married woman might be induced during her marriage by her husband to anticipate and make away with the fund if she had the power to do so when the trustee might not think it advisable and therefore not see fit to pay it. I therefore think that in administering the estate the trust must be continued during the marriage of the female plaintiff and it is the duty of the trustee to pay over to the married woman as much of the proceeds or interest from the securities that he has invested under the will to the female plaintiff as he thinks fit for her interest to do, or if he should wish to cease to act as such trustee he can only be relieved therefrom by some substitute being appointed by this Court with the like powers and duties. I think the trustee is entitled to five per cent. on the interest that he may receive and pay out on these securities, but nothing for investing the principal, as I understand that he has been allowed a commission for that in the Probate Court. The costs of all parties to this suit to be paid out of the corpus of the estate.