[BAIN, J., 20TH FEBRUARY, 1891.

In re NICOLSON AND THE RAILWAY COMMISSIONER.

Arbitration and award-Setting aside award-Compensation given on erroneous principle-Must be limited to injury to land.

Appeal against an award.

Nicolson and McNaughton, icemen, owned and occupied a lot fronting on the Red River, Winnipeg, for the purpose of their business. The railway commissioner notified them that a portion of the lot would be required for the Red River Valley Railway; his offer of compensation was refused, and the matter referred to arbitration. The railway commissioner appealed from the award.

The amount awarded was $24,599 and interest. It appeared that $7,000 was awarded as the value of the land taken and the damages to the remaining land for every other purpose except for the ice business; the balance of the amount awarded was for damage to buildings, and damages because, by the construction. of the railway along the bank of the river and between the river and the ice houses, the owners would be prevented from using an appliance spoken of as an endless chain in conveying ice from the river to the ice houses. The endless chain had never been put in or used.

Held, that the compensation to be given must be limited to compensation for injury that has been done to land or an estate or interest in land. The arbitrators should have taken and considered the property as it stood when it was taken for the railway, and should not have allowed anything because at some future time the railway would interfere with the owners using appliances in connection with their business which were not ia use when the land was taken.

The Judge exercised the powers conferred on him by 52 V. c. 35, s. 16, s-s. 2, and made the award that he considered ought to have been made, allowing $9,000 for value of land taken and damage to remaining portion, buildings, pavements, etc.

The owners to be entitled to be paid interest on $7,000 value of land taken, from the time when the land was taken by

the railway commissioner. The railway commissioner to maintain the subway as set out in award. The owners to have costs of arbitration, and the railway commissioner the costs of the appeal.

Perdue and Mathers, for the railway commissioner.

Munson, for the owners.

[26TH FEBRUARY, 1891.

GILLESPIE v. LLOYD.

Company-Bill by shareholder on behalf of himself and all other shareholders -Refusal of company to take proceedings-Demurrer.

Demurrer to plaintiff's bill, filed on behalf of himself and all other the shareholders of the H. B. R. Co. against Lloyd's Banking Co., the West Cumberland Iron Co., and the H. B. R. Co., praying to have it declared that certain bonds of the company, purporting to have been issued by the company and deposited with the West Cumberland Co. by the president of the H. B. R. Co. as security for the payment of certain acceptances of the H. B. R. Co., and afterwards delivered by the West Cumberland Co. to Lloyd's Banking Co. were not a charge upon the property and assets of the H. B. R. Co. or their land grant, because it was ultra vires of the company to issue them, and because their issue was not authorized by the company, and that Lloyd's Banking Co. were not lawful holders of the bonds, and that they might be ordered to deliver them up, and be restrained from disposing of them.

The bill alleged that the plaintiff had been a shareholder since before 1886, and was recognized by the railway company as such; that he had repeatedly called upon the directors and officers of the railway company to take proceedings to prevent the sale of the lands, and to have it declared that they were not properly issued, but the company and its directors and officers had refused to take any such proceedings.

The first ground of demurrer was that the statement that before the year 1886 the plaintiff became a shareholder of the company by being the owner of a portion of the capital stock thereof and had ever since remained in the books of the company as a shareholder thereof and was recognized by the railway company was not a sufficient allegation of the plaintiff's title, as it was not shewn how the plaintiff became a shareholder, and what was stated were not facts from which the Court could judge whether he was a shareholder or not, but merely a conclusion of law.

Further, that even if the plaintiff was a shareholder of the railway company, the bill did not disclose such a state of circumstances as enabled him to sue in his individual capacity. Held, that the demurrer should be allowed.

The suit should have been brought by the railway company, and as the plaintiff did not allege any sufficient reason why it had not been so brought, he could not maintain the suit.

Howell, Q.C., and Tupper, Q.C., for the plaintiff.

Ewart, Q.C., and Bradshaw, for the defendants Lloyd's Banking Co. and the West Cumberland Iron Co.

Partnership-Dissolution-Pending contract.

Judgment of the Queen's Bench Divisional Court, 19 O. R. 470; 10 Occ. N. 217, affirmed on appeal, the Court agreeing with the reasons for judgment given in the Court below.

McCarthy, Q.C., and M. J. Gorman, for the appellants.
Aylesworth, Q.C., for the respondents.

[26TH MARCH, 1891.

CAMPBELL v. KINGSTON AND BATH ROAD CO.

Tolls-Road company-Lease of tolls-R. S. O. c. 159.

A company incorporated under the General Road Companies' Act, R. S. O. c. 159, may validly lease a toll gate and the right to collect tolls thereat, and are not liable for the lessee's acts done quite apart from the contract and not under or in obedience to it or by the instructions or direction of the company.

Britton, Q.C., and Langton, Q.C., for the appellants.

J. McIntyre, Q.C., and Lyon, for the respondent.

VOL. XI. C.L.T.

L

Ch. D.]

[10TH MARCH, 1891.

SAWYER v. PRINGLE.

Sale of goods-Conditional sale-Seizure-Re-sale-Right to sue for deficiency.

After default in payment by the purchaser of a machine under an agreement whereby the property was not to pass until payment in full, with a provision that on default the whole price should fall due and that the vendors should be at liberty to resume possession, nothing being said as to re-sale, the vendors seized the machine and re-sold it, and after crediting the proceeds brought this action to recover the balance of the original price:

Held, MACLENNAN, J.A., dissenting, that by the re-sale the original agreement had been put an end to and that the plaintiffs had no right of action.

Per MACLENNAN, J.A., the vendors became in effect mortgagees of the machine, and on default in payment were entitled forthwith to sell and then sue for the unpaid balance.

Judgment of Court below, 20 O. R. 111; 10 Occ. N. 336, affirmed.

Hoyles, Q.C., and J. Chisholm, for the appellants.

J. M. Clark and C. H. Widdifield, for the respondent.

C. P. D]

PAISLEY v. WILLS.

.

Specific performance—Contract for sale of land—Want of title—Repudiation.

The judgment of the Common Pleas Divisional Court, 19 O. R. 303, affirmed on appeal, the Court agreeing with the reasons for judgment given in the Court below.

Bain, Q.C., for the appellant.

Shilton, for the respondent.