of contributories. The liability of shareholders is the entire creation of the legislature and cannot be any more or less. If it was intended that there should be any restriction on the right to transfer or ceasing to become a stockholder, the legislature could have imposed it, and they must have known that this could be done and they did not provide for such a case, and it would be simply an act of legislation for the Court to attempt to do it.

IN CHAMBERS.

[PALMER, J., 2ND SEPTEMBER, 1891.

Ex parte BELYEA.

Canada Temperance Act-Distress warrant-When bad-Commitment— Habeas corpus-Discharge.

B. was convicted before the stipendiary magistrate of Hampton, King's county, for a violation of the second part of the Canada Temperance Act, at noon. He demanded a copy of proceedings with a view of obtaining an appeal. These were made out and sent him during the afternoon. At 5 o'clock a distress warrant wes issued against B. for the fine and costs, with directions to the constable from the magistrate to return same at 6 o'clock, which he did. A commitment was issued at 7 o'clock. B. in the meantime had locked himself up. The constable, with the assistance of others, procured a key, opened the lock, went in, arrested B. and lodged him in gaol. A writ of habeas corpus having been obtained,

Held, that the distress warrant was bad, the magistrate having no jurisdiction to direct the return as he had done, and that B. was entitled to his discharge.

C. A. Palmer, Q.C., for the applicant.

A. S. White, contra.

Exchequer Court of Canada.

[BURBIDGE, J., 17th September, 1891.

REGINA v. BARRY.

Government Railways Act, 1881-Lands injuriously affected where no part taken-Construction of a railway siding on a sidewalk contiguous thereto -Measure of damages.

Where lands are injuriously affected, no part thereof being taken, the owners are not entitled to compensation under the Government Railways Act, 1881, unless the injury (1) is occasioned by an act made lawful by the statutory powers exercised; (2) is such an injury as would have sustained an action but for such statutory powers; and (3) is an injury to lands or some right or interest therein, and not a personal injury, or an injury to trade.

The construction of a railway siding along the sidewalk contiguous to lands whereby access to such lands is interfered with, and the frontage of the property destroyed for the uses for which it is held (in this case for sale in building lots) is such an injury thereto as will entitle the owner to compensation.

Quare, whether the rule that compensation in cases of injurious affection only must be confined to such damages as arise from the construction of the authorized works, and must not be extended to those resulting from the user of such works, is applicable to cases arising under the Government Railways Act, 1881.

REGINA v. MALCOLM.

Injurious affection of property by construction of public work—Obstruction of access-Right to compensation—Waiver.

The defendant was the owner of a dwelling house and property fronting on a public highway. In the construction of a Government railway the Crown erected a bridge or over-head crossing on a portion of the highway in such a manner as to obstruct access

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from such highway to the defendant's property, which he had theretofore freely enjoyed.

Held, that the defendant was entitled to compensation under the Government Railways Act and the Expropriation Acts.

Beckett v. Midland Railway Company, L. R. 3 C. P. 82, referred to. The defendant, and a number of other persons interested in the manner in which the crossing was to be made, met the chief engineer of government railways and talked over the matter with him. The defendant, who did not appear to have taken any active part in the discussion, and the other persons mentioned wished to have a crossing at rail level, with gates; but, the chief engineer declining to authorize such gates, it was decided that there should be an overhead crossing with a grade of one in twenty. Subsequently, the defendant signed a petition to have the grade increased to one in twelve, as the interference with the access to his property would in that way be lessened, but the prayer of the petition was not granted.

Held, that the defendant had not waived his right to compen

sation.

[21ST SEPTEMBER, 1891.

ARCHIBALD v. REGINAM.

Contract-Construction—Implied promise--Breach thereof.

The suppliant had a contract to carry Her Majesty's mails along a certain route. In the construction of a Government railway the Crown obstructed a highway used by the suppliant in the carriage of such mails, and rendered it more difficult and expensive for him to execute his contract. After the contract had been fully performed by both parties the suppliant sought to maintain an action by petition of right for breach thereof, on the ground that there was an implied undertaking on the part of the Crown in making such contract, that the Minister of Railways would not so exercise the powers vested in him by statute as to render the execution of the contract by the suppliant more onerous than it would otherwise have been.

Held, that such an undertaking could not be read into the contract by implication.

REGINA v. FISHER.

Navigation-Interference with public right of-Injunction to restrainJurisdiction of Exchequer Court-Right to authorize such interference since the union of the Provinces--Position of Provincial legislatures with respect thereto-Right of Federal authorities to exercise powers created prior to the union.

An information at the suit of the Attorney-General to obtain an injunction to restrain the defendant from doing acts that interfere with and tend to destroy the navigation of a public harbour is a civil and not a criminal proceeding, and the Exchequer Court has concurrent original jurisdiction over the same under 50 & 51 V. c. 16, s. 17 (d).

2. A grant from the Crown which derogates from a public right of navigation is to that extent void unless the interference with such navigation is authorized by Act of Parliament.

3. The Provincial legislatures, since the union of the Provinces, cannot authorize such an interference.

4. Wherever by Act of a Provincial legislature passed before the union authority is given to the Crown to permit an interference with the public right of navigation, such authority is exerciseable by the Governor-General and not by the Lieutenant-Governor of the Province.

[14TH OCTOBER, 1891.

DUBE v. REGINAM.

Particulars-Petition of right-Negligence-Accident on government railway. Where in his petition the suppliant alleged in general terms that the injuries he received in an accident on a government railway in the Province of Quebec resulted from the negligence of the servants of the Crown in charge of the train, and from defects in the construction of the railway, an order was made for the delivery to the respondent of particulars of such negli gence and defects.

ONTARIO.

Supreme Court of Judicature.

COURT OF APPEAL.

[23RD SEPTEMBER, 1891.

In re LOCAL OPTION ACT.

Constitutional law-Liquor License Act-Local option-Sale by wholesale -Sale by retail-53 V. c. 56, s. 18 (0.)—54 V. c. 46, s. 1. (0.)

Section 18 of 53 V. c. 56 (O.) allowing, under certain conditions, municipalities to pass by-laws for prohibiting the sale of spirituous liquors is intra vires the Ontario Legislature, as is also s. 1 of 54 V. c. 46, which explains it, but the prohibition can only extend to sale by retail.

A by-law omitting to provide a penalty for its violation is not necessarily bad.

Irving, Q.C., and J. J. Maclaren, Q.C., for the Attorney-General for Ontario.

E. R. Cameron, W. H. Blake, and DuVernet, contra.

Q. B. D.]

[15TH SEPTEMBER, 1891.

MARTIN v. McMULLEN.

Principal and surety-Guaranty-Floating balance-Ultimate balanceBankruptcy and insolvency-Dividends.

The plaintiff's testator gave a guaranty in the following form: "In consideration of the goods sold by you on credit to M., and of any further goods which you may sell to M. upon credit during the next twelve months from date, I hereby undertake to guarantee you against all loss in respect of such goods so sold or to be sold, provided I shall not be called on in any event to pay a greater amount than $2,500."