COFFIN v. NORTH AMERICAN LAND CO.

Statute of Limitations-Possession of land-Tenancy-Payment of taxes— Owners putting up new fence-Entry-Resumption of possession—Acts of possession-Sufficiency of-Summer crops-Drawing manure in winter— Vacant possession in winter.

In 1857 or 1858 J. entered upon the land in question in this action as tenant to the true owners, upon the terms that he should pay the taxes, and he cultivated the land during his occupation. In the autumn of 1864 he gave up the place to the plaintiff, and in the spring of 1865 began to work upon it, living upon and occupying an adjoining lot of land, separated by a fence. The plaintiff disclaimed any knowledge of J.'s tenancy, and said that he entered as a purchaser of J.'s rights as a squatter, with the intention of acquiring a title by possession. In 1868 the true owners pulled down an old fence and put up a new one upon part of land in question. In 1877 the plaintiff executed a writing under seal whereby he agreed to lease the land from the true owners and to pay as rent the taxes thereon and to give up possession when requested. From the time the plaintiff bought out J. till 1884, when he ceased to use or occupy the land, he grew crops and vegetables upon it in the summer and did nothing at all in the winter except draw manure upon it, which he spread in the spring.

Held, following Finch v. Gilray, 16 A. R. 484, that the mere fact that the plaintiff paid the taxes was not sufficient to keep the right of the owners alive against him; but what was done by the owners in 1868 was an entry upon the land in the capacity of owners, an assertion of their rights as such, and a resumption of possession for the time being, before the statute then in force had given a title to the plaintiff, and it furnished a new starting point; and, further, that what the plaintiff did upon the land did not shew such a possession as entitled him to assert that he had acquired a title as against the true owners; the acts done in the winter did not constitute an occupation of the property to the exclusion of the rights of the true owners, but were mere acts of trespass covering necessarily but a very short portion of the winter, and the possession must be taken to have been vacant for the remainder of it; the right of the owner would attach

upon each occasion when the possession became thus vacant, and the operation of the Statute of Limitations would cease until actual possession was taken again in the spring by the plaintiff. J. W. McCullough, for the plaintiff.

Foy, Q.C., MacGregor, and F. E. Hodgins, for the several defendants.

ROBINSON v. HARRIS.

Contract-Exchange of lands-Specific performance-Speculative character of properties-Time-Notice to complete-Reasonable notice-Title not in plaintiff—Election to treat contract as binding-Parties-Matter of

conveyance.

The plaintiff and defendant entered into a contract for the exchange of lands. The title to the land which the plaintiff contracted to convey was not in him but in A., who had contracted to sell to B., and B. to the plaintiff. By the contract between the plaintiff and defendant a day was fixed for completion, but time was not made of the essence. The trial Judge found that the parties were dealing, each to the knowledge of the other, with the properties as a matter of mere speculation. The parties continued to negotiate up to a period some months after the date fixed for completion, when the defendant gave the plaintiff notice that unless the exchange was carried out on the day after the notice, the contract would be treated as rescinded. In an action for specific performance :

Held, that, by reason of the speculative character of the property, the presumption was that time was to be of the essence of the contract; but the presumption was rebutted by the parties treating the contract as still subsisting after the day for completion had passed; and it was then competent for either of them to put an end to the delay by a notice to complete; but the notice given was not a reasonable one and it had no effect upon the rights of the plaintiff.

Held, also, that the defendant had satisfied the contract by making requisitions regarding the title with knowledge that it was not in the plaintiff, and could not shift his position and take

the ground that no contract ever existed; by treating the contract as a binding one he had made his election and was remitted to the rights of an ordinary purchaser.

Semble, also, that the plaintiff could have made A. a party to an action against B. to compel specific performance of B.'s contract; offering to carry out on B.'s behalf the whole contract between A. and B.; and therefore the objection to the plaintiff's title was a mere matter of conveyance.

F. E. Hodgins, for the plaintiff.

J. B. Clarke, Q.C., for the defendant.

CHANCERY DIVISION.

[THE DIVISIONAL COURT, 18TH FEBRUARY, 1891.

HALL v. HALL.

Donatio mortis causa-Delivery of keys of box and room containing valuables.

Decision of ROSE, J., 20 O. R. 168; 10 Occ. N. 364, reversed. Per FERGUSON, J.-I have seen no case in which the gift and delivery of the key have been held a good gift mortis causa of the property; and it appears to me that what is meant by the cases in which the delivery of the key is held sufficient is this: that where the words of the gift reach the property itself, in other words, where the property is without doubt the subject of the gift according to the words of the gift, and then, instead of delivering the property, the key of the trunk or box in which it is, is delivered, this may do.

C. J. Holman, for the plaintiff.
Bicknell, for the defendants.

[20TH FEBRUARY, 1891.

ZILLIAX v. DEANS.

Voluntary settlement—Conveyance of land to wife—Attacking creditor— Claim under $40.

A creditor for an amount under $40 is not such a creditor as can attack and set aside a conveyance of land as voluntary or fraudulent, and he cannot improve his position by bringing his action on behalf of other creditors.

Shepley, Q.C., for the appellant.
Idington, Q.C., for the respondent.

[ROBERTSON, J., 26TH FEBRUARY, 1891.

MITCHELL v. LESTER.

Partnership agreement-Receiver-Failure of partners to agree as contemplated by articles.

An agreement of partnership contained the following clause: "That at the expiration of this co-partnership the parties hereto shall appoint some fit and proper person to get in all out-standing accounts, and to settle and adjust the partnership concerns." The co-partnership had become determined by notice under the articles, but the partners could not agree upon a fit and proper person to act under the above clause.

One of the partners now moved for an order appointing a receiver.

Order made that unless the parties could agree within three days that one of themselves should act as receiver, C. M. should be appointed as such.

Worrell, Q.C., for the plaintiff.

Armour, Q.C., for the defendant.

COMMON PLEAS DIVISION.

[THE JUSTICES IN BANC, 27TH June, 1890.

REGINA v. HARTLEY.

Intoxicating liquors—Liquor License Act, R. S. O. c. 194, 8s. 70, 105—Minute of conviction-Conviction not in accordance with-Validity of-Distress.

A minute of a conviction for selling liquor without a license in contravention of s. 70 of the Liquor License Act, R. S. O. c. 194, stated that in default of payment of the fine and costs imposed, the same was to be levied by distress, and in default of distress imprisonment, and a formal conviction was drawn up following the minute.

Held, that under s. 70 distress was not authorized; but that the fact of the minute containing such provision did not prevent a conviction being drawn up and returned, in compliance with a certiorari granted, omitting such provision.

Regina v. Brady, 12 O. R. 358, and Regina v. Higgins, 18 O. R. 148, considered.

Held, also, that the conviction was good under s. 105 of the Act.

Aylesworth, Q.C., for the defendant.
Langton, Q.C., for the complainant.

[15TH NOVEMBER, 1890.

REGINA v. RICHARDSON.

Intoxicating liquors-Taverns and shops-Having liquor for sale in defendant's house, being a house of public entertainment—Conviction not following minute-Selling without license-R. S. O. c. 194, ss. 50, 70—Interest of magistrate-Druggist-Bias.

The defendant had been a licensed hotel keeper, his hotel having a bar furnished with a counter and the usual appliances for the sale of liquor, his license having expired. On being asked by a couple of persons for whiskey, he said he could not sell it, and gave them temperance drinks, and on being paid therefor,