EDMONDS v. HAMILTON PROVIDENT AND LOAN

SOCIETY.

Mortgagor and mortgagee-Interest Insurance moneys - Application of— R. S. O. c. 102, s. 4.

Under ordinary circumstances a mortgagee can claim interest only from the time the money is advanced.

Where insurance moneys are received by a mortgagee under a policy effected by the mortgagor, pursuant to a covenant to insure contained in a mortgage made pursuant to the Short Forms Act, the mortgagee is not bound to apply the insurance moneys in payment of arrears, but may hold the insurance moneys in reserve as collateral security while any portion of the mortgage moneys is unpaid.

Judgment of the Queen's Bench Division, 19 O. R. 677, varied. W. R. Meredith, Q.C., and John Crerar, Q.C., for the appellants.

Aylesworth, Q.C., and P. C. Macnee, for the respondents.

CH. D.]

MARTIN v. MAGEE.

Vendor and purchaser-Title-Devolution of Estates Act-R. S. O. c. 108.

Under the Devolution of Estates Act the legal estate in the deceased's land vests in his legal personal representative; and the beneficial owner, whether the debts of the deceased are paid or not, cannot make a good title without a conveyance from the legal personal representative.

Judgment of the Chancery Division, 19 O. R. 705, reversed. E. D. Armour, Q.C., and D. Macdonald, for the appellant. Hoyles, Q.C., and J. Chisholm, for the respondent.

The plaintiff obtained from a loan company an advance on the security of certain shares in a joint stock company, not numbered or capable of identification, which were transferred by him to the managers of the loan company "in trust." The managers were also brokers, and were as brokers carrying on speculation for the plaintiff, and he transferred to them as security for the payment of margins certain other shares in the same company, the transfer being in the same form "in trust." Subsequently the loan company were paid off by the brokers at the plaintiff's request, but the brokers continued to hold the first shares as well as the others as security. Upon all the shares the brokers then obtained advances from a bank, transferring them to the cashier "in trust," and from time to time changed the loan to other banks and financial institutions, each transfer being made to the manager "in trust." An allotment of new shares was taken up by the then holders at the request of the plaintiff. After this the brokers on the security of the old and new shares obtained a loan from the defendants of a much larger amount than the amount due by the plaintiff to the brokers, the shares being transferred by the then holders to the defendants.

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Held, reversing the judgment of STREET, J., 19 O. R. 272, that the defendants were entitled to hold the stock as security for the full amount advanced by them to the brokers, and that the form of transfer in trust" to the holders who transferred to the defendants was not in itself sufficient to put the defendants on inquiry as to the brokers' title, but might fairly be interpreted as meaning that the various transferees were holding the shares "in trust" for the respective institutions.

E. Blake, Q.C., and O. A. Howland, for the appellants.

McCarthy, Q.C., and J. K. Kerr, Q.C., for the respondent.

GRIFFITH v. CROCKER.

Debtor and creditor - Accounts-Appropriation of payments.

Appropriation of payments is a question of intention, and where a creditor takes security for an existing indebtedness and thereafter continues his account with the debtor in the ordinary running form, charging him with goods sold and crediting him with moneys received, there is no irrebutable presumption that the payments are to be applied upon the original indebtedness. Judgment of STREET, J., reversed.

J. H. Coyne, for the appellant.
Gibbons, Q.C., for the respondent.

High Court of Justice.

QUEEN'S BENCH DIVISION.

[THE DIVISIONAL COURT, 21ST MAY, 1891.

REGINA ex rel. McGUIRE v. BIRKETT.

Municipal corporations-Controverted municipal elections—Interest of mayor elect in contract with corporation—Unsettled money claim—Master in Chambers, jurisdiction of, to try election case-Rule 30–51 V. c. 2, s. 4— Constitutional law-Powers of Provincia! Legislature.

The defendant had a contract with the corporation of a city for the supply of iron up to the end of 1890, but on the 26th November, 1890, he wrote informing the corporation that he withdrew from his contract, and enclosing his account up to date.

On the 9th December, 1890, the then mayor of the city notified the defendant that he should be held responsible for any expense the corporation should be put to in consequence of his refusal to fulfil his contract.

On the 15th December, 1890, the city council adopted a resolution cancelling the defendant's contract and releasing him from

any further obligation in connection therewith. At the same meeting a notice of reconsideration was given, which by the rules of the council had the effect of staying all action on the resolution until after reconsideration. There was no reconsideration and no subsequent meeting of the council till the 7th January, 1891, previous to which the defendant had been elected mayor for 1891. At the time of his election his account above mentioned had not been paid.

Held, by the Master in Chambers, that the resolution had no direct effect to release the defendant from liability under his contract, either at law or in equity; and, whether or not the resolution was to be considered in force, it did not touch the account, the existence of which unpaid was sufficient to invalidate the election, under the other circumstances of the case.

The election was therefore set aside; but, although the relator had notified the electors of the objection to the defendant's qualification, the seat was not awarded to the candidate having the next largest vote, on account of the resolution of the council, which taught the electors to disregard the relator's warning; and a new election was ordered.

Held, by MACMAHON, J., that the Master in Chambers had, by the combined effect of Rule 30 and 51 V. c. 2, s. 4, all the powers of a Judge to determine the validity of the election of the defendant and that his determination was final; and it was within the competence of the Provincial Legislature to clothe the Master with such powers.

Held, by the Divisional Court, following the principle of the decision in Re Wilson v. McGuire, 2 O. R. 118, that the Provin cial Legislature had power to invest the Master with authority to try controverted municipal election cases.

Aylesworth, Q.C., and Latchford, for the relator.

J. H. Macdonald, Q.C., for the defendant.

Irving, Q.C., for the Attorney-General for Ontario.

[GALT, C.J., 27TH APRIL, 1891.

UNION BANK v. NEVILLE.

Constitutional law-Assignments and preferences-R. S. O. c. 124, s. 9— Ultra vires--Bankruptcy and insolvency..

Section 9 of the Assignments and Preferences Act, R. S. 0. c. 124, providing that an assignment for the general benefit of creditors under that Act shall take precedence of all judgments and of all executions not completely executed by payment, etc., gives to the assignment a much greater effect than the assignor could give; it is a provision relating to bankruptcy and insolvency, and therefore ultra vires of a Provincial legislature, by s-s. 21 of s. 91 of the B. N. A. Act.

W. R. Meredith, Q.C., for the plaintiffs.

Beck, for the assignee of the judgment debtor.

Middleton, for the sheriff of Carleton.

Robinson, Q.C., for the Minister of Justice for Canada.
Irving, Q.C., for the Attorney-General for Ontario.

CHANCERY DIVISION.

[BOYD, C., 25TH MARCH, 1891.

ALDOUS v. HICKS.

Mortgage-Purchase of equity of redemption—Covenant to pay mortgage— Action by mortgagee against purchaser.

Held, that though, where the purchaser of an equity of redemption covenants to pay the existing mortgage upon the property, he becomes primarily liable for the mortgage debt as between himself and the mortgagor, that does not create any privity of contract between him and the mortgagee; and no right of action arises to the mortgagee whereby he can recover the mortgage debt directly from the purchaser.

MacKelcan, Q.C., for the plaintiff.

J. T. Small, for the defendant Hicks.