[31ST DECEMBER, 1890. 1ST D. C. WENTWORTH.] SAWYER v. THOMAS. Bills of exchange and promissory notes-Cheque-Presentment-Notice of dishonour-Debtor and creditor-Payment. Where a creditor accepts from his debtor the cheque of a third person he must without undue delay present that cheque for payment, and if it is dishonoured notify the defendant of the fact and claim recourse against him on the original indebtedness. Unless this is done the creditor must be taken to have accepted the cheque in payment of the debt, and the debtor is discharged. Judgment of the Court below affirmed. E. Martin, Q.C., for the appellants. High Court of Justice. QUEEN'S BENCH DIVISION. [THE DIVISIONAL COURT, 31st DECEMBER, 1890. CANN v. KNOTT. Execution-Free grants and homesteads-Exemption from execution—Interest of original locatee as mortgagee after alienation. The judgment of BOYD, C., 19 O. R. 422; 10 Occ. N. 218, affirmed on appeal. Foy, Q.C., for the defendant Elizabeth Knott. D. Urquhart, for the plaintiff. WESTERN ASSURANCE CO. v. ONTARIO COAL CO. - Maritime law-General average contribution-Attempt to rescue vessel and cargo Common danger — Average bond― Adjustment — Expenditure — Liability of owners of cargo. The judgment of BOYD, C., 19 O. R. 462; 10 Occ. N. 219, affirmed on appeal. Osler, Q.C., and A. W. Aytoun-Finlay, for the plaintiffs. CLARKE v. CREIGHTON. Costs-Set-of-Rule 1205-Solicitor's lien-Appeal from order-Waiver —Amount in question-Dignity of Court. Where judgment was given for payment by the plaintiff to the insolvent defendant of the costs of the action, and the defendant's solicitors were by an order of Court declared to have a lien upon such judgment and to have the sole right to control the judgment and execution to the extent of their costs between solicitor and client, and the plaintiff became entitled against the defendant to costs of garnishing proceedings upon the judgment, begun before the lien was declared :— Held, reversing upon this point the decision of BOYD, C., 14 P. R. 34, that Rule 1205 did not apply to enable a set-off of the costs to be made. Where two appeals in respect of matters wholly separate and distinct were disposed of by one order : Held, that a party might appeal from the decision in respect of one of the appeals, while taking advantage of the decision in respect of the other. It is not beneath the dignity of the Court to determine an appeal where the amount involved is less than $40. Aylesworth, Q.C., for the defendant's solicitors. In re FIELD v. RICE. Prohibition-Division Court-Garnishee suit-Question of fact. The defendant was arrested and when taken to the police station handed over the money in his possession to a constable. Creditors of the defendant sought to garnish this money by Division Court suits. The Judge in the Division Court found that the money was handed over voluntarily and held that it could be garnished. Held, that the question whether the garnishee was indebted to the defendant was a question of fact within the jurisdiction of the inferior Court, and that prohibition did not lie. Du Vernet, for the defendant. S. A. Jones, for the plaintiffs. CARTER v. STONE. Assignment for benefit of creditors Priority over executions -Purchase money of land sold under mortgage judgment--R. S. O. c. 124, s. 9. On 8th April, 1890, the plaintiff obtained a judgment for sale of lands by the Court to realize the amount of his mortgage and a judgment against the owner of the equity of redemption. On the 24th April, 1890, execution creditors of the owner of the equity were made parties in the Master's office. On the 17th May, 1890, the lands were sold. On 9th June, 1890, before the purchase money fell due and before any of the parties had established their claims to it, the owner of the equity of redemption made an assignment for the benefit of his creditors. Held, that by R. S. O. c. 124, s. 9, the assignee was given precedence as to the purchase money over the executions; in other words, the purchase money passed to him discharged by the statute of any liability to satisfy the executions out of it. E. T, Malone, for the execution creditors. James Reeve, Q.C., for the assignee. [THE JUSTICES IN BANC, 31ST DECEMBER, 1890. REGINA v. POPPLEWELL. Criminal law-Threatening letter-Accusation of abortion-"Not less than seven years," meaning of. A crime punishable by law with imprisonment for not less than seven years means a crime the minimum punishment for which is seven years; and as no minimum term is prescribed for the crime of abortion, sending a letter threatening to accuse a person of that crime is not a felony within the meaning of R.S.C. c. 178, s. 3. J. R. Cartwright, Q.C., for the Crown. George Lindsey, for the prisoner. REGINA v. PETRIE. Criminal law-Trial of prisoner by Judge without jury—Right of Judge to view locality of offence-Absence of prisoner-Question of law arising on trial. The prisoner was tried without a jury by a County Court Judge, exercising jurisdiction under the Speedy Trials Act, upon an indictment for feloniously displacing a railway switch. After hearing the evidence and the addresses of counsel, the Judge reserved his decision. Before giving it, having occasion to pass the place, he examined the switch in question, neither the prisoner nor anyone on his behalf being present. The prisoner was found guilty. Held, that there was no authority for the Judge taking a "view" of the place and his so doing was unwarranted; and even if he had been warranted in taking the view, the manner of his taking it, without the presence of the prisoner or of anyone on his behalf, was unwarranted. Held, also, that the question whether the Judge had the right to take a view was a question of law arising on the trial, and was a proper question to reserve under R.S.C. c. 174, s. 259. Dymond, for the Crown. Middleton, for the prisoner. REGINA v. MILFORD. Criminal law-Fortune telling-9 Geo. II. c. 5. The statute 9 Geo. II. c. 5 is in force in this Province. By the statute the mere undertaking to tell fortunes constitutes the offence; and a conviction was affirmed where it was obtained upon the evidence of a person who was not a dupe or victim but a decoy. J. R. Cartwright, Q.C., for the Crown. CHANCERY DIVISION. [THE DIVISIONAL COURT, 11TH DECEMBER, 1890. PEUCHEN v. IMPERIAL BANK OF CANADA. Sale of goods-Implied warranty of title-Failure of consideration—Bill of lading-Transfer of interest under-Absolute sale by pledgees-Findings of jury-Inconsistency-Duty of trial Judge. The plaintiffs sued the bank to recover the price paid the bank for certain goods which, owing to a customs seizure and forfeiture, the plaintiffs never received. The bank was never in actual possession of the goods, but a bill of lading was indorsed to them as security for advances, and this bill of lading was indorsed and delivered by the bank directly to the plaintiffs. The jury found that it was the bank which sold the goods to the plaintiffs; that they professed to sell with a good title; that they had not a good title; and that the plaintiffs could not by any diligence have obtained the goods. Held, that upon these findings and the evidence the transaction must be regarded as a sale by the bank as pledgees with the concurrence of the pledgor, and not as a mere transfer of the interest of the bank under the bill of lading; and that the plaintiffs were entitled to recover the price as upon an implied warranty of title and a failure of consideration. Morley v. Attenborough, 3 Ex. 500, commented on and distinguished. Held, also, per ROBERTSON, J., that the trial Judge was within his right and duty in sending the jury back to reconsider their findings after pointing out their inconsistency. Osler, Q.C., and A. McLean Macdonell, for the plaintiffs. [BOYD, C., 5TH DECEMBER, 1890. MCCORMICK v. TOWNSHIP OF PELEE. Municipal corporations-Repair of highway-Highway washed away by lake. Where a highway running along the side of a lake had been eaten away by the action of the water, so as no longer to be traversable |