Held, that if the functions of the commissioners were of a judicial character they were authorized to impose the rate under the R. S., 5th Series, c. 109, which provides that no person empowered by law to exercise judicial functions shall be incapable of acting in any cause, matter, or proceeding, "by reason of his being or having been interested as one of several ratepayers, or as one of any other class of persons liable in common with others," etc. If the functions were non-judicial there was no disqualification.

That the expenses charged by the commissioners were reasonable and incurred in the interest of the work, and were not within the case of Re Bishop's Dyke, 20 N. S. Reps. 263.

That the owner who complained of excessive assessment having been called upon to go with the surveyor and point out the boundaries of his lot or lots, and having refused, was concluded by the terms of R. S. c. 42, s. 26, from disputing the correctness of the assessment.

Per WEATHERBE, J., that assuming the charges by the commissioners not to be within their authority or jurisdiction, the rate could not be quashed on that ground, as the money received by the commissioners from the government must be expended under the terms of the grant, and the amount could not be ascertained until after the final completion of the work.

HILTZ v. SKERRY.

Municipal election-Misconduct of presiding officer in opening ballotsR. S., 5th Series, c. 57-Construction of Act.

During the conduct of a municipal election the presiding officer, for the ostensible purpose of seeing that no more than one ballot was deposited by each elector, opened three ballot papers in such a way that, if he had been so disposed, he might have ascertained for whom the parties depositing the paper voted. On an application to the County Court Judge to set aside the election on the ground of misconduct on the part of the presiding officer, the latter swore that he simply opened the ballots for the purpose stated, that he

did not read them, and that he did not know for whom the parties voted; also, as regarded a tally of the votes which he kept during the election, that it was merely kept for his own amusement and from conjecture, though others might have seen it.

Held, by WEATHERBE and RITCHIE, JJ., and GRAHAM, E.J., on appeal from the decision of the County Court Judge dismissing the petition, that the evidence of the presiding officer that he did not see or know for whom the parties voted was irrelevant; that the manner in which the papers were opened by him was a violation of the spirit and intention of the Act, R. S., 5th Series, c. 57; and that the appeal should be allowed with costs.

MCDONALD, C.J., and TOWNSHEND, J., dissented on the ground that no corrupt act on the part of the presiding officer was shown by the evidence.

McCURDY v. McLEOD.

Service of writ of summons— -Constructive service-Judgment by defaultSetting aside.

An order for constructive service of a writ of summons on the defendant was granted on affidavit of the sheriff of the county of Victoria that he had sent his deputies at least three times to the defendant's house, but the defendant could not be found, and, from diligent inquiry, he believed that he was avoiding service. Judgment by default having been entered, on the constructive service effected under this order, the defendant applied to open up the judgment, making affidavit (1) that he had no knowledge or intimation of the issue of the writ; (2) that he never evaded service; (3) that during the time referred to in the sheriff's affidavit he was working on the railway about nine miles from his home; (4) that he had a good defence to the action, particulars of which were set out. An appeal from the judgment of Tremaine, C.C.J., refusing to open up the judgment, was allowed with costs.

McADAM v. ROSS.

Negligence-Liability of steamboat owners for-Action by a father for damages for accident causing his daughter's death- Contributory negligence-Pecuniary loss.

The plaintiff's daughter, who was a passenger by the defendants' steamer, fell overboard and was drowned in consequence of a gangway, against which she was leaning, having been left insecurely fastened. The defence mainly relied on was contributory negligence. It was shown that there was a cabin for passengers, and that, at the time of the accident, there was a heavy sea and the vessel was rolling and pitching. It was also contended that the plaintiff suffered no actual pecuniary loss.

The cause was tried without a jury before a Judge, who found for the plaintiff, and assessed damages at $300.

An appeal by the defendants was dismissed with costs.

GRAY v. CURRY.

Landlord and tenant-Attachment under Absconding Debtors' Act, for rent and goods sold—Subsequent distress-Attachment for rent set asideCosts.

The plaintiff caused an attachment to be issued under the Absent or Absconding Debtors' Act, to recover a balance due by the defendant for goods sold and delivered, and for rent and interest. Subsequent to the issue of the attachment he distrained on the defendant's furniture for rent. A motion made at Chambers to set aside the attachment, at the instance of a subsequent attacher, was refused, and, the whole of the order dismissing the application having been appealed from :-—

Held, that, by making the distress, the plaintiff had lost his right of action for the rent, and, for that part of his claim, could not hold his attachment.

But, as the order appealed from was not wholly rescinded, but only varied, the appellant was not allowed costs, as he would have been if part only of the order had been appealed from.

MANITOBA.

In the Queen's Bench.

[TAYLOR, C.J., 12TH OCTOBER, 1891.

In re MANITOBA MILLING AND BREWING CO.

Company-Winding-up Act-Question of insolvency- Proof-Power purely statutory.

Petition by a creditor for a winding-up order, alleging among other things that by virtue of a certain execution and seizure the sheriff had entered upon the premises of the company and proceeded to sell and dispose of the goods of the company, and that he had already sold under such execution the greater portion of the goods and intended to proceed under the execution and sell and dispose of and was then from day to day selling and disposing of the remainder thereof,

*

By the Winding-up Act, R. S. C. c. 129, s. 5, a company is deemed insolvent," (h) If it permits any execution issued against it * * to remain unsatisfied till within four days of the time fixed by the sheriff, or proper officer, for the sale thereof, or for fifteen days after such seizure."

Held, that an order for the winding-up of the company could not be made on the material before the Court.

There was no pretence for bringing the case under any of the provisions of the Winding-up Act, unless it could be brought under s-s. (h) of s. 5.

There was no evidence that the company had permitted any execution, under which the property had been seized or levied upon, to remain unsatisfied till within four days of the time fixed by the sheriff for the sale thereof. It was sworn that there was an execution in the sheriff's hands, under which he had seized, and that by private sale he had disposed of some of the property seized, and that he was proceeding to make further sales. There was no evidence that any time had been fixed for the sale, and, under a purely statutory power, the Court could not act unless the case was brought strictly within the Act. Application refused with costs.

Ewart, Q.C., and Darby, for the petitioner.

Howell, Q.C., for the company.

Tupper, Q.C., and Hough, for creditors.

[17TH OCTOBER, 1891.

ROSS v. VAN ETTEN.

Judgment debtor-Refusal to answer questions-Application to commit.

Application to commit the defendant, who had been examined as a judgment debtor," for refusing to disclose his transactions respecting his property, and for not making satisfactory answers respecting the same, and for refusing to answer" certain questions set forth, or for an order requiring him to attend at his own expense and "answer the said questions and such other questions arising out of the same as may be necessary, and to fully declare his transactions respecting his property, and the disposition thereof made by him.” The refusal was not contumacious, but solely on the advice of the attorney who attended the examination on behalf of the defendant.

An objection was taken, and the reason given for the refusal was that the questions were asked to get evidence upon which to attack a judgment recovered against the defendant, or to discover