V. failed and neglected to apply. V. pleaded that he never got the $2,500 and that the receipt was given in error and by mistake by his clerk. After documentary and parol evidence had been given, the Superior Court, whose judgment was affirmed by the Court of Queen's Bench, dismissed S.'s action.

On appeal to the Supreme Court of Canada,

Held, that the finding of the two Courts on the question of fact as to whether the receipt had been given through error should not be interfered with.

2. That the prohibition of Art. 1284, C.C., against the admission of parol evidence to contradict or vary a valid written instrument is not d'ordre public, and that if such evidence is admitted without objection at the trial it cannot subsequently be set aside in a court of appeal.

3. That parol evidence in commercial matters is admissible against a written document to prove error.

Etna Ins. Co. v. Brodie, 5 S. C. R. 1, followed.

Cooke, for the appellant.

Hutchison, for the respondent.

NOVA SCOTIA.]

[12TH MAY, 1891.

MERCHANTS BANK OF HALIFAX v. WHIDDEN.

Banks and banking-Agent of bank-Excess of authority - Dealing with funds contrary to instructions-Liability to bank-Discounting for his own accommodation-Position of parties on accommodation paper.

K., agent of a bank and also a member of a business firm, procured accommodation drafts from a customer of the bank, which he discounted as such agent, and, without indorsing the drafts, used the proceeds, in violation of his instructions from the head office, in the business of his firm. The firm, having become insolvent, executed an assignment in trust of all their property, by which the trustee was to pay "all debts by the assignors or either of them due and owing or accruing or becoming due and owing" to the said bank as first preferred creditor, and to the makers of the accommodation paper, among others, as second preferred creditors. The estate not proving sufficient to pay the bank in full, a dispute arose as to the accommodation drafts, the bank claiming the right to disavow the action of the

agent in discounting them and appropriating the proceeds in breach of his duty, the makers claiming that they were really debts due to the bank from the insolvents. In a suit to enforce the carrying out of the trusts created by the assignment:

Held, affirming the judgment of the Court below, post p. 288, GWYNNE, J., dissenting, that the drafts were "debts due and owing" from the insolvents to the bank and within the first preference created by the deed.

Per RITCHIE, C.J.-That K. procured the accommodation paper for the sole purpose of borrowing the money of the bank for his firm and when the firm received that money they became debtors to the bank for the amount.

Per STRONG and PATTERSON, JJ.-That the agent, being bound to account to the bank for the funds placed at his disposal, became a debtor to the bank, on his authority being revoked, for the amount of these drafts as money for which he failed to account. The right the bank had to elect to treat the act of the agent as a tort was not important, as in any case there was a debt due.

Per GWYNNE, J.-The evidence does not establish that these drafts were anything else than paper discounted in the ordinary course of banking business, as to which the bank had its recourse against all persons whose names appeared on the face of the paper, and were not obliged to look to any other for payment. Henry, Q.C., and Ross, Q.C., for the appellants.

W. Cassels, Q.C., and W. B. Ritchie, for the respondent.

MUNICIPALITY OF CAPE BRETON v. McKAY.

Municipal corporations-Appointment of board of health—R. S. N. S., 4th ser., c. 29—37 V. c. 6, s. 1-42 V. c. 1, s. 6-Employment of physician— Reasonable expenses-Construction of contract-Attendance upon smallpox patients for the season-Dismissal—Form of remedy—Mandamus. The 67th section of the Act by which municipal corporations were established in Nova Scotia, 42 V. c. 1, giving them "the appointment of health officers and a board of health," with the powers and authorities formerly vested in Courts of Sessions, does not repeal c. 29 of R. S. N. S, 4th ser., providing for the appointment of boards of health by the Lieu

tenant-Governor in Council; RITCHIE, C.J., dubitante as to the power of appointment by the executive in incorporated counties.

A board of health appointed by the executive council, by resolution, employed M., a physician, to attend upon small-pox patients in the district "for the season," at a fixed rate of remuneration per day. Complaint having been made of the manner in which M.'s duties were performed, he was notified that another medical man had been employed as a consulting physician, but refused to consult with him, and was dismissed from his employment. He brought an action against the municipality, setting forth in his statement of claim the facts of his engagement and dismissal, and claiming payment for his services up to the date at which the last small-pox patient was cured, and special damages for loss of reputation by the dismissal.

The Act allows the board of health to incur reasonable expenses, which are defined to be services performed and bestowed and medicine supplied by physicians in carrying out its provisions, and makes such expenses a district, city, or county rate to be assessed by the justices and levied as ordinary county rates.

Held, 1. Per FOURNIER, TASCHEREAU, and GWYNNE, JJ., that the employment of M. "for the season meant for the period in which there should be small-pox patients requiring his professional services.

2. Per FOURNIER, TASCHEREAU, GWYNNE, and PATTERSON, JJ., that notwithstanding no provision was made for supplying the municipality with funds in advance to meet the reasonable expenses that might be incurred under the Act, a claim for such expenses could be enforced against a municipality by action.

3. Per RITCHIE, C.J., and STRONG, J., that the only mode of enforcing such a claim is by a writ of mandamus to oblige the municipality to levy an assessment.

4. Per FOURNIER, TASCHEREAU, and GWYNNE, JJ., affirming the judgment of the Court below, that M. was entitled to payment at the rate fixed by the resolution of the board up to the time at which there ceased to be any small-pox patients to attend.

Per RITCHIE, C.J., STRONG and PATTERSON, JJ., that the claim of M. was really one for damages for wrongful dismissal, which is not within the provision in the Act for reasonable expenses. W. B. Ritchie, for the appellant.

Henry, Q.C., for the respondent.

NEW BRUNSWICK.]

LAMB v. CLEVELAND.

Statute-Repeal of-Restoration of former law-Distribution of intestate estate-Feme covert-Husband's right to residue—Next of kin-Costs.

The legislature of New Brunswick, by 26 Geo. 8, c. 11, ss. 14 and 17, re-enacted the Imperial Act 22 & 23 Car. 2, c. 10, the Statute of Distributions, as explained by s. 25 of 29 Car. 2, c. 3, the Statute of Frauds, which provided that nothing in the former Act should be construed to extend to estates of femes coverts dying intestate, but that their husbands should enjoy their personal estates as theretofore.

When the statutes of New Brunswick were revised in 1854 the Act 26 Geo. 3, c. 11 was re-enacted, but s. 17, corresponding to s. 25 of the Statute of Frauds, was omitted. In the administration of the estate of a feme covert, her next of kin claimed the personalty on the ground that the husband's rights were swept away by this omission.

Held, per RITCHIE, C.J., FOURNIER and PATTERSON, JJ., that the right of a husband to the personal property of his deceased wife does not depend upon the Statute of Distributions, but he takes it jure mariti.

Per STRONG, J.-That the repeal by the Revised Statutes of the 26 Geo. 3 c. 11, which was passed in the affirmance of the Imperial Act, operated to restore s. 25 of the Statute of Frauds as part of the common law.

Per GWYNNE, J.-When a colonial legislature re-enacts an Imperial Act, it enacts it as interpreted by the Imperial Courts, and, a fortiori, by other Imperial Acts. Hence, when the English Statute of Distributions was re-enacted by 26 Geo. 3, c. 11, it was not necessary to enact the interpreting section of the Statutes of Frauds, and its omission in the revised Statutes did not affect the construction to be put upon the whole Act.

Held, per RITCHIE, C.J., FOURNIER, GWYNNE, and PATTERSON, JJ.-That the Married Woman's Property Act of New Brunswick, C. S. N. B. c. 72, which exempts the separate property of a married woman from liability for her husband's debts and prohibits any dealing with it without her consent, only suspends the husband's rights in the property during coverture, and on the death of the wife he takes the personal property as he would if the Act had never been passed.

The Supreme Court of New Brunswick, while deciding against the next of kin on his claim to the residue of a feme covert, directed that his costs should be paid out of the estate. On appeal the decree was varied by striking out such direction. W. W. Wells, for the appellant. Skinner, Q.C., for the respondent.

This was an appeal by the defendant John R. Barber from the judgment of the Chancery Division, 20 O. R. 522, and came on to be heard before this Court on the 28th September, 1891. J. H. Macdonald, Q.C., for the appellant.

Kilmer, for the respondent.

At the conclusion of the argument the Court dismissed the appeal with costs, agreeing with the reasons for judgment in the Court below.

MACMAHON, J.]

[15TH SEPTEMBER, 1891.

ABRAHAM v. ABRAHAM.

Alimony-Judgment—Registration—Priorities—Assignments and preferences R. S. O. c. 44, s. 30-R. S. O. c. 124, s. 9.

This was an appeal from the judgment of MACMAHON, J., 19 O. R. 256, by one John Idington, a creditor of the defendant, in the name of the defendant Hossie, assignee for the benefit of the creditors of the defendant, pursuant to an order made under the