debtor, which remains till satisfaction of the debt; and, therefore, the withdrawal of the sheriff did not preclude further action upon the writ.

It appeared that the solicitor for the execution creditor had a lien for his costs upon the judgment obtained by his client and also an assignment of the judgment, whereof the garnishor and garnishee both had notice.

Held, that the garnishor and garnishee should not have settled the amount garnished between themselves; and that the solicitor should have intervened and had the attaching order set aside by disclosing the assignment to himself of the debt attached. E. Taylour English, for the execution creditor.

Langton, Q.C., for the garnishor.
Middleton, for the sheriff.

[FERGUSON, J., 30TH SEPTEMBER, 1891.

In re BOWEY, BOWEY v. ARDILL.

Will-Executory devise-Death of parties entitled-Whose heirs should take. A testator died leaving his farm to his wife until his daughter should attain the age of 21, when it was to go to her and her heirs, but if she died before attaining 21 it was to go to his wife and her heirs. The widow died before the daughter and then the daughter died, both deaths taking place before the daughter attained 21.

Held, that the widow took an executory devise, which, on her death, descended to her daughter as her heiress-at-law, and that the heirs of the daughter were entitled.

W. R. Meredith, Q.C., for the plaintiff.
W. H. Blake, for the defendant.

[ROBERTSON, J., 17TH SEPTEMBER, 1891. In re OWEN SOUND DRY DOCK SHIPBUILDING AND NAVIGATION COMPANY.

Company-Winding-up Act-Contributories-Solvency of company accepting a reduced amount in payment of stock-Right to do so.

A dry dock company, having issued stock to the extent of $15,000, and having assets to over $30,000 above their other

liabilities, passed a by-law accepting from each of the shareholders $3,000 as payment in full of $3,750 stock. Subsequently the company got into difficulties, and was put into liquidation under the Winding-up Acts.

On an appeal from a Master's ruling placing these shareholders upon the list of contributories to the extent of $750 each :

Held, that, as the company was not only solvent at the time but had a surplus of sufficient dimensions to warrant them in so doing, they had the right to accept $3,000 in payment of $3,750 stock; and the appeal was dismissed.

J. M. Kilbourn, for the appeal.

Hoyles, Q.C., and H. B. Smith, contra.

[MACMAHON, J., 15TH AUGUST, 1891.

DUNCAN v. CANADIAN PACIFIC RAILWAY CO.

Railways and railway companies--Horses killed-Property on adjoining premises-53 V. c. 28, s. 2 (d)—Words-By-law of municipality as to animals running at large.

Three horses got upon the defendants' line of railway from adjoining premises, where they had no right to be, and were killed. In an action for damages for their loss,

Held, following Davis v. Canadian Pacific Railway Co., 12 A. R. 724, that the words " under the circumstances it might properly be" in 53 V. c. 28, s. 2 (D), mean "it might lawfully be"; and that, as the horses were not on the adjoining premises with the consent of the owner or occupant, they were not "lawfully" there.

Held, also, that although the owner did not object to their being there, still as there was no by-law of the municipality permitting them to run at large, they could not be held to have been properly there; and the action was dismissed with costs.

Delamere, Q.C., and Boyce, for the plaintiff.

Watson, Q.C., and Angus MacMurchy, for the defendants.

[STREET, J., 25TH AUGUST, 1891.

BROOKE v. TORONTO BELT LINE RAILWAY CO.

Railways and railway companies-Expropriation of land—Offer of privileges as compensation Surveyor's certificate-County Judge, jurisdiction of-Injunction.

On a motion for an interim injunction to restrain a railway company from taking possession, under a warrant obtained from a County Judge, of certain land different from what was shown on the company's plan deposited under s. 10, s-s. 2, of R. S. O. c. 170:

Held, following Murphy v. Kingston & Pembroke Railway Co., 17 S. C. R. 582, that the land could not be taken, as it was not shown on any plan so deposited.

Held, also, that, as the notice given under s. 20, s-s. 1, of R. S. O. c. 170, offered certain privileges in addition to cash as compensation and as the land-owners were entitled to have their compensation all in cash, there was no proper notice and no proper surveyor's certificate, and, as these were at the very foundation of the County Judge's authority, he had acted without jurisdic tion.

Held, also, that in the case of a limited jurisdiction such as that of the Judge in this case, the facts which give jurisdiction and without which the powers given by the Act never arise must not be absolutely presumed to exist because the Judge has acted as if they did; and if disputable then the warrant based upon them must stand or fall with them.

Shepley, Q.C., and W. D. McPherson, for the plaintiffs.
Moss, Q.C., and Walter Macdonald, for the defendants.

COMMON PLEAS DIVISION.

[STREET, J., 23RD OCTOBER, 1891.

FERGUSON v. CAMERON.

Incumbrances- Covenant against-Breach of—Damages-Measure of. Action upon a covenant against incumbrances, tried before STREET, J., without a jury, at Cornwall on 3rd October, 1891.

On 29th July, 1880, the defendant, being seized in fee of certain lands, mortgaged them to one McDonell to secure a sum of money, in respect of which it was agreed that $2,933.12 was due and unpaid at the time of the trial.

On 13th August, 1883, the defendant conveyed the lands to one Gauthier in fee, in the statutory form, with a covenant that he had done no act to incumber the lands save the execution of certain mortgages, which had been discharged.

On 17th October, 1885, Gauthier mortgaged the lands to one Wilson, who afterwards assigned the mortgage to one McConnell, who assigned it to the plaintiff. It was admitted that $1,088 was due upon this mortgage at the time of the trial, and that the land was then worth only about $1,400 at the utmost.

Before the commencement of this action, Gauthier assigned to the plaintiff for her own use all his right of action and claim to damages for the breach by the defendant of his covenant above-mentioned.

The mortgage to McDonell and that held by the plaintiff were long over-due, and under their terms the mortgagees were entitled to possession upon default.

Held, that the plaintiff was entitled to recover as damages the difference between the value of the property which the deed purported to convey and the equity of redemption actually conveyed, and that she was not bound to pay off the incumbrance as a condition to recovering the amount of it as damages. Empire Gold Mining Co. v. Jones, 19 C. P. 245; Mayne on Damages, 4th ed., p. 204, referred to.

D. B. Maclennan, Q.C., for the plaintiff.
E. H. Tiffany, for the defendant.

IN CHAMBERS.

[BOYD, C., 30TH SEPTEMBER, 1891. FLETT v. WAY.

Costs-Scale of-Title to land-Set-off of costs-Solicitor's lien-Discretion. of taxing officer-Rules 3, 1204, 1205.

Where, in an action by a monthly tenant against his landlord. and other persons for wrongful entry upon the demised premises, the landlord denied the plaintiff's tenancy :

Held, that the title to land was brought in question, and the costs of the plaintiff were properly taxed on the High Court scale, although the damages recovered were only $104.

Worman v. Brady, 12 P. R. 613, and Danaher v. Little, 13 P. R. 361, followed.

Tomkins v. Jones, 22 Q. B. D. 599, specially referred to.

By the judgment in the action costs were awarded to the plaintiff against the chief defendant, and to the other defendants against the plaintiff, without any direction as to setting off costs, and the plaintiff's solicitor asserted a lien upon the costs awarded to his client against the chief defendant. The defendants all defended by the same solicitor.

Held, that, under Rule 1204, the question of setting off costs was in the judicial discretion of the taxing officer, and that discretion was rightly exercised by the officer in refusing to set off the costs ordered to be paid to the plaintiff by the chief defendant against the costs ordered to be paid by the plaintiff to the other defendants.

Construction of Rules 1204 and 1205.

The older decisions as to set-off are not applicable since Rule 3.

F. E. Titus, for the plaintiff.

J. M. Clark, for the defendants.

[14TH OCTOBER, 1891.

In re SARNIA OIL COMPANY.

Security for costs-Proceeding under Winding-up Act-Powers of refereeR. S. C. c. 129-52 V. c. 32, s. 20-Intervening shareholder out of the jurisdiction-Delay in applying for security-Appeal.

An order was made by the Court delegating the powers exerciseable by the Court for the purpose of winding up the company, to a referee, pursuant to R. S. C. c. 129, s. 77, as amended by 52 V. c. 32, s. 20.

Held, that power was delegated to the referee to order security for costs and to stay proceedings till security should be given by a shareholder resident out of the jurisdiction who intervened.

Held, also, that the liquidator and others opposing the applications made by the intervening shareholder were not barred of their