ition of the tax.

Since it is necessary to show that at the time of the sale there were taxes due and unpaid, for which the land could be sold, then the taking of each step which it is by statute imperative to take for imposing the tax and making it a binding charge on the land must be proved.

KILLAM, J.-Neither the collector's roll, nor the list of arrears of taxes with the warrant to sell, afforded sufficient prima facie proof that the lands were charged with taxes for which the sale might be made.

Constitutional law

In re SHAW.

Conviction for keeping a gambling house-Criminal offence-By-law passed under authority of Provincial statute-Ultra vires-B. N. A. Act, s. 91, 8-8. 27.

Appeal from decision of KILLAM, J., ante p. 116.
Order that the writ of certiorari should be issued, affirmed.

COMMERCIAL BANK v. BISSETT.

Sale of goods-Sale of machinery by a bank-Alleged warranty by agent not in ordinary course of business-Promissory note-Place of payment not definitely stated.

The plaintiffs sued on promissory notes made by the defendant, who pleaded, by way of counter-claim, that before the commencement of the action he had entered into an agreement for the purchase from the plaintiffs of certain machinery, for which he gave some promissory notes; that the plaintiffs promised that the machinery would work well and satisfactorily; that the machinery which was delivered failed to do so, by which the defendant sustained loss and damage which he was willing to set off in part against the plaintiffs' claim; and he claimed a balance.

The case was tried before BAIN, J., and a jury. The jury, on a question submitted to them found, in effect, that one Harvey, who was employed by the plaintiffs to sell the machinery, had, in consideration that the defendant would sign the contract, agreed with the defendant that the machine would work well and satisfactorily. Notwithstanding that finding the Judge entered a verdict for the plaintiffs, with leave to the defendant to move to set it aside, or to reduce it, or to enter a non-suit for him on his counter-claim, or that the Court might dispose of the case as it thought fit.

The main question to be determined was whether in the contract there was, as claimed by the defendant, such a warranty given by the plaintiffs' agent as should be held binding upon the plaintiffs. The defendant swore that Harvey warranted the machinery, but Harvey swore he was not authorized to give such a warranty and that he gave none. The defendant swore that he asked for a written warranty, but that Harvey refused to give it. Harvey said the same thing.

Held, that the selling of machinery for which Harvey was employed was not a transaction in the ordinary course of the plaintiffs' business; he was only a special agent employed for a particular kind of business; he could have no general or implied authority to give such a warranty as the one alleged by the defendant to have been given. On the evidence given, when the burden of proof of the warranty was on the defendant, it could not be held that the warranty had been proved.

Verdict for the plaintiffs affirmed.

The defendant raised a technical objection as to the presentment of the notes for payment. The notes were made payable at the Imperial Bank of Canada without stating any special place. It was contended that they should have been presented at the head office of the bank in Toronto. The notes were dated at Brandon, and the bank had a branch office at Brandon.

Held, that, in the absence of any evidence to the contrary, the branch office at Brandon was the place of payment.

Howell, Q.C., and Cumberland, for the plaintiffs.
Ewart, Q.C., for the defendant.

[TAYLOR, C.J., 24TH JUNE, 1891.

In re BROWN.

Will-Construction of-Bequest of residue to executors-Question whether they took it personally or subject to a trust.

The testator, after appointing two persons "hereinafter called my trustees, to be executors and trustees of this my will," and declaring that all trusts and powers reposed and vested in them might be executed by the survivor of them or the executors or administrators of such survivor, or other the trustee or trustees for the time being of his will, proceeded thus: 'I give, devise, and bequeath all my lands, chattels real, real and personal estate unto my trustees upon trust that my trustees shall sell and call in and convert the same into money * * * and shall and will out of such moneys * * * pay all my funeral expenses etc., and shall stand possessed of the residuary trust moneys and investments for the time being representing the same upon the trusts following." After giving his wife the income for life and a number of legacies, he proceeded:" Subject to the foregoing trusts in favour of my said wife and the payment of my funeral and testamentary expenses, debts, and legacies and directions as aforesaid, I give all my lands, chattels real, real and personal estate unto my trustees to be applied and disposed of as to them in their uncontrolled and absolute discretion shall seem best."

The opinion of the Court was asked as to whether the executors had an absolute disposing power over the residuary estate, not subject to any trusts whatsoever.

Held, that the executors and trustees had not an absolute disposing power over the residuary estate but held it in trust. Perdue, for the executors.

Hough and McPhillips, for the next of kin.

STOBART v. BRADFORD.

Trusts and trustees-Bill to remove trustee under an assignment-Improper conduct-Unfounded claim by trustee-Parties.

The defendant Charles Bradford, becoming insolvent, made an assignment to his father, the defendant Henry Bradford; the plaintiffs, attaching creditors, filed this bill for the removal of the

trustee and the appointment of a receiver. The objection was taken that Charles Bradford was not a proper party, and that, as to him, the bill should be dismissed.

Held, that as the bill sought to remove a trustee, and Charles Bradford was one of the cestuis que trustent interested, being entitled to any surplus after payment of the creditors, he was a proper party, and that, although the plaintiffs might not be entitled to recover costs against him as prayed, he could not, if he were otherwise a proper party, call for the bill being dismissed against him.

The bill sought to have the trustee removed from that position on the ground of improper conduct, one instance being that he made an unfounded claim against the estate for his own benefit, and that he, with the aid of the debtor, obtained a judgment so as to have the fact of the existence of that claim established. The claim was for $975 moneys owing by the debtor and represented by promissory notes. The trustee, on his own showing, used $80 of the moneys of the estate got in by him in retiring a note on which he was liable as an indorser so as to relieve himself from liability. There were other instances of improper conduct. His own solicitors had advised him to transfer the trust but this he would not do.

Held, that the whole of the claim was so suspicious and unsatisfactory that it must be held to be an unfounded one, and that the unfitness of the trustee had been clearly shown.

Decree granted for the appointment of a receiver by the Master, with costs against the trustee.

Howell, Q.C., and Darby, for the plaintiffs.
Culver, Q.C., and Coldwell, for the trustee.

In re R. A., AN ATTORNEY.

Attorney-Striking off the rolls-Appeal from Master's report-Unworthy and extortionate conduct-Striking off the roll of barristers.

Pursuant to the reference in this matter, as reported in 10 Occ. N. 278 and 6 Man. L. R. 601, the Master made a report that the conduct of the attorney in and about certain criminal

proceedings before the police magistrate of the city of Winnipeg, in which certain persons were charged with an attempt to kill and murder, was such as to render him unworthy of remaining on the roll of barristers and attorneys in the Province of Manitoba.

The rule to show cause why he should not be struck off the rolls, enlarged until the report was made, then came on for argument. The attorney at the same time appealed against the report.

Held, that the report seemed defective in this, that it did not find specifically in what way the attorney acted improperly, what the conduct was which rendered him unworthy of remaining on the rolls, but the hands of the Court were not on that account tied, nor did it even seem necessary to refer the matter back for a more specific finding. The object of a report was to inform the Court; it was not conclusive. Though generally accepted, the Court was not bound to act upon it: Re Simmons, 15 Q. B. D. 450. By the appeal the whole evidence was before the Court, and, notwithstanding the report, it was open to a Judge to find, if the evidence so warranted, that there was no improper conduct; on the other hand, if the evidence warranted it, a Judge might give a judgment making the general finding of the Master against the attorney specific in terms.

The charge made was that the attorney employed to act for the prosecutor, on a charge of a serious felony, took from the accused a large sum of money to procure an abandonment of the charge, and his conduct therein was calculated to subvert the administration of justice and was extortionate.

The taking of the money was admitted, but it was claimed that there was no bargain beforehand that the prosecution should, in consideration of the payment, be abandoned. It was claimed that the payment was a purely voluntary act on the part of the accused after the charge had been dismissed by the magistrate.

Held, on the evidence, that the finding must be that there was an agreement between the attorney and the friends of the accused, that the prosecution should be abandoned in consideration of the payment to him of a sum of money, and that in pursuance of such agreement $500 was paid to him.