MANITOBA.

In the Queen's Bench.

[FULL COURT, 28TH NOVEMBER, 1890.

MULVIHILL v. LACHANCE.

County Court appeal—Security not given in time-Appeal struck out.

Appeal from the County Court of the county of Marquette. The County Court Judge entered a verdict for the plaintiff on 12th May, 1890. The defendant having applied for a reversal of the judgment, the County Court Judge gave judgment refusing the application on 3rd July, 1890. The notice of the defendant's intention to appeal was served on the plaintiff on 12th July following, but the security required to be given by the party appealing was not perfected until 10th September.

The objections were taken that the security was not perfected within ten days after the giving of the judgment, as required by s. 243 of the County Court Act, 50 V. c. 9, and that no notice of setting down had been given.

Held, by DUBUC and BAIN, JJ., KILLAM, J., dissenting, that the security must be given or perfected within ten days after the decision or judgment appealed from, and unless all the requirements of the County Court Act in regard to appeals shall have been complied with, the Court has not jurisdiction to hear the appeal.

Appeal struck out with costs.

Culver, Q.C., and Bonnar, for the plaintiff.

Elliott, for the defendant.

[8TH DECEMBER, 1890.

In re TAIT.

Primogeniture in Manitoba.

Application under the Real Property Act. At the time of the transfer, 15th July, 1870, John Tait was in occupation of lot 48, St. James, and became entitled to an estate in fee simple, under the Manitoba Act; he died intestate in April, 1871.

The following question was submitted to the Court by the District Registrar, "Was the law of primogeniture in force in Manitoba between the date of the transfer on the 15th of July, 1870, and the passing of the Provincial Intestacy Act on the 3rd of May, 1871 ?"

Held, that the question should be answered in the affirmative. That in case of any land being held in Manitoba, between 15th July, 1870, and the Intestacy Act passed on 3rd May, 1871, for such an estate, of such character and tenure that by the law of England it would descend to the eldest son upon the death of the holder, such lands would so descend in Manitoba.

The Court limited the answer to the abstract question asked, and expressed no opinion as to what estate the deceased John Tait had in the land referred to.

C. H. Campbell, for the applicant.

Aikins, Q.C., for the Minister of Justice.

C. P. Wilson, for the Attorney-General of Manitoba.

Huggard, for parties interested.

[19TH DECEMBER, 1890.

ROWAND v. MARTIN.

Arbitration and award-Setting aside award-Employment of arbitrator

previous to arbitration.

Bill filed to set aside an award.

J., 9 Occ. N. 357.

Appeal from order of BAIN,

Held, that the decree made at the hearing should be reversed,

and the bill dismissed with costs.

DYSART v. DRUMMOND.

Vendor and purchaser-Preparation and tender of conveyance.

Demurrer to the defendants' plea. The declaration averred that it was agreed by and between the plaintiff and defendants that the plaintiff would erect a warehouse for defendants, and that upon the erection of the warehouse the defendants would convey to the plaintiff a certain lot of land, and all things were fulfilled, etc., yet the defendants did not convey the said land to the plaintiff, whereby, etc. The defendants pleaded that the plaintiff did not tender for execution any deed for conveying the land. To this plea the plaintiff demurred. The demurrer was allowed by Bain, J., 9 Occ. N. 282.

Held, that the demurrer was properly allowed.

The practice in Manitoba has been that the vendor prepares and executes the conveyance at his own expense.

Wade, for the plaintiff.

Kennedy, Q.C., and Bradshaw, for the defendants.

HEBB v. LAWRENCE.

Seduction-Relation of master and servant.

The plaintiff, a widow, sued to recover damages for the seduction of her daughter by the defendant. When the girl was about 14 years of age she went to the defendant's house as a domestic servant at monthly wages, and remained there for one month. The claim was that the defendant's contract was with the mother, and that the girl remained all the time in the service of the mother, and did her work as the servant of the mother under the contract with the latter. On the other hand it was contended that the girl was wholly in the service of the defendant and that the mother could not maintain the action. The engagement with the defendant was made for the girl, by the mother in the girl's presence. The wages were to go to the mother.

The plaintiff recovered a verdict, but leave was reserved to enter a nonsuit.

VOL. XI. C.L.T.

B

Held, that there was not sufficient evidence to warrant a jury in finding that any but the ordinary relations were to exist between the girl and the defendant, or that the daughter remained the servant of the mother and was to do her work in that capacity. The only proper inference was that the girl was to serve the defendant alone, as her master, in the ordinary

way.

Verdict set aside and a nonsuit entered.

Hagel, Q.C., and Dodge, for the plaintiff.
Howell, Q.C., and Ashbaugh, for the defendant.

ONTARIO BANK v. MOMICKEN.

Parties-Declaration of trust-Bill to enforce-Certificate of judgment against two defendants, one being deceased—Revivor or suggestion—Exemptions— Equity of redemption.

Bill filed to enforce a judgment at law recovered by the plaintiffs against Alexander McMicken and Sedley Blanchard, since deceased, as being a charge upon certain lands vested in the defendant Albert C. McMicken, and alleged to be held by him in trust for his co-defendant, Alexander McMicken.

Albert C. McMicken held a certificate of title to the lands, on which he signed and executed a declaration of trust by which he declared that he held the lands as trustee for his co-defendant only. In his answer Albert C. McMicken stated that the alleged declaration of trust was erroneous.

DUBUC, J., dismissed the bill with costs, holding that Albert C. McMicken was not a trustee for his co-defendant of any of the lands in question, but that he was a trustee of them for their father Gilbert McMicken, and that the alleged declaration of trust for Alexander McMicken was] made without consideration and was wholly voluntary and that it was incomplete and could not be enforced in equity.

The Court affirmed the decree with costs.

It was objected that Sedley Blanchard died before the issue of the certificate of judgment, and that no suggestion of his death was made upon the roll, and that his representative should be a party to the bill.

Held, not necessary to make either the real or personal representative of the deceased a party. That a writ of fi. fa. goods or lands or a certificate of judgment can be issued upon a judgment recovered against two or more defendants, without any revivor or any suggestion of the subsequent death of one, though it can be enforced only as against the survivor.

By 49 V. c. 35, s. 3, "the actual residence or house of any person other than a farmer," is exempt from seizure under execution provided the same does not exceed the value of $1,500; and if the same does exceed the value of $1,500, then it may be offered for sale," &c.

Held, that where the property is mortgaged it is necessary that the equity of redemption should be above the prescribed value to make it chargeable with a judgment debt. It is only the interest of the debtor that is charged.

Howell, Q.C., and Bradshaw, for the plaintiffs.

Kennedy, Q.C., and Mulock, Q.C., for the defendants.

In re MASSEY MANUFACTURING CO. AND GIBSON.

Real Property Act—Priorities between a registered fi. fa. and unregistered transfer-Equitable estates,

Application under s. 118 of the Real Property Act, 1889, to compel a District Registrar to register a transfer of certain lands and to issue to the applicant a certificate of title thereto without reference to a certain writ of execution.

Gibson, the registered owner, executed a transfer to Herbert on 23rd February, 1888, which was not presented for registration until 1st May, 1888. The full consideration was paid by Herbert to Gibson on 25th February, 1888. On 29th March, 1888, a writ of execution against lands of Gibson at suit of Massey Co. was registered.

On 26th, June, 1890, Herbert executed a transfer to Seatter, free from incumbrances. The District Registrar refused to receive the transfer as not containing any reference to the charge under the execution, and to issue any certificate of title but one which should show the estate to be subject to such a charge. Seatter then filed this petition. He contended that by the execution of the transfer and payment of the purchase