The goods of the mortgagor having been seized under execution, the mortgagees claimed payment as landlord under the said clause of a year's rent out of the proceeds of the sale of the goods under the statute of Anne. Held, that it is competent for mortgagee and mortgagor to create by agreement the relation of landlord and tenant between them. Held, per STRONG, GWYNNE, and PATTERSON, JJ., affirming the decision of the Court of Appeal, 16 A. R. 255, RITCHIE, C.J., and TASCHEREAU, J., contra, that such relationship did not exist under the re-demise clause of the mortgage in this case, the amount purporting to be reserved as rent under such clause being so largely in excess of the rental value of the premises as to indicate a want of intention in the parties to create such relationship. Per STRONG, J., that no tenancy at will was created by agreement, but such a tenancy could be held to exist by operation of the Statute of Frauds, the alleged lease being for a period of more than three years and not signed by the mortgagee. The Imperial statute 8 & 9 V. c. 106 requiring leases for over three years to be made by deed (of which the Ontario Act is a reenactment) does not repeal the Statute of Frauds, but merely substitutes a deed for the writing required by the latter statute. Held, per GWYNNE and PATTERSON, JJ., that no tenancy at will, by agreement or otherwise, was created by the re-demise clause. Held, per STRONG, J., GWYNNE and PATTERSON, JJ., contra, that the demise clause might be construed as containing an agreement for a lease capable of being enforced in equity and, since the Judicature Act, to be treated by common law Courts exercising the functions of Courts of Equity as a lease. Per GWYNNE, J., that the clause could only be regarded as an agreement for the creation of a tenancy in the future if the parties so desired, such agreement to be carried out by the execution of the mortgage by the mortgagees. Held, per STRONG, GWYNNE, and PATTERSON, JJ., that the demise clause could only be construed as purporting to create a tenancy for the entire term of five years and it could not be held a good lease for four and a half years at a rent reserved of $1,000 a year and void for the remaining half year. Gibbons, Q.C., for the appellants. MOLSONS BANK v. HALTER. Assignments and preferences-Defeating and delaying creditors-R. S. O. c. 124, s. 2-Construction of-Effect of words “or which has such effect" -Assignment by trustee to co-trustee-Pressure. W., a trader, was one of the executors of an estate, and had used the estate funds in his private business. Having become insolvent, he gave a second mortgage on certain real estate to his co-executor as security for the money so appropriated. In a suit by a creditor to set aside the mortgage as void under R. S. O. c. 124, s. 2, Held, affirming the judgment of the Court of Appeal, 16 A. R. 323, PATTERSON, J., dissenting, that the mortgage was not void under the statute, the co-executor not being a creditor of W. within the meaning of the said section. 2. That the words "or which has such effect" in the section referred to only apply to the clause immediately preceding, that is, to the case of giving one or more of the creditors of the transferor a preference over others, and do not apply to the case of defeating, delaying, or prejudicing creditors. 3. That the preference mentioned in the statute as avoiding a conveyance must be a voluntary preference, and would not include a conveyance obtained by pressure on the transferor. Held, per STRONG, J., that W. by misappropriating the funds of the estate of which he was executor was guilty of a criminal offence, and the fear of penal consequences was sufficient to take from the transaction the character of a voluntary conveyance. Bowlby, Q.C., for the appellants. A. W. Aytoun-Finlay and DuVernet, for the respondents. QUEBEC.] [9TH DECEMBER, 1890. MORIN v. REGINAM. Writ of error-On what founded-Right of Crown to stand aside jurors when panel of jurors has been gone through-Question of law not reserved at trial-Criminal Procedure Act-R. S. C. c. 174, ss. 164, 256, 266. Where a panel had been gone through and a full jury had not been obtained, the counsel for the prisoner on the second calling over of the jury list objected to the Crown ordering certain jurors to stand aside a second time without cause, and the Judge presiding at the trial did not reserve or refuse to reserve the objection, but ordered the jurors to stand aside again, and after conviction and judgment a writ of error was issued. Held, per TASCHEREAU, GWYNNE, and PATTERSON, JJ., affirming the judgment of the Court below, that the question was founded on a question of law arising on the trial which could have been reserved under s. 259 of c. 174, R. S. C., and as the Judge at the trial had not reserved or refused to reserve the question, the writ of error should be quashed: R. S. C. c. 174, s. 266. Per RITCHIE, C.J., and STRONG, FOURNIER, and PATTERSON, JJ., that in the present case the Crown could not without showing cause for challenge direct a juror to stand aside a second time: R. S. C. c. 174, s. 164. Morin v. Lacombe, 13 L. C. Jur. 259, overruled. Per TASCHEREAU, J., that the learned Judge at the trial was justified in ruling according to Morin v. Lacombe, and the jurisprudence of the Province of Quebec. Per GWYNNE, J., that all the prisoner could complain of was a mere irregularity in procedure which could not constitute a mistrial. Per RITCHIE, C.J., and STRONG and FOURNIER, JJ., that, as the question arose before the trial commenced, it could not have been reserved, and as the error of law appeared on the face of the record, the remedy by writ of error was applicable. See Brisebois v. The Queen, 15 S. C. R. 421. Langelier, Q.C., for the appellant. Dunbar, Q.C., for the respondent. COSSETTE v. DUNN. Appeal Jurisdiction—Amount in controversy-Supreme and Exchequer Courts Act, s. 29-Mercantile agency—Responsibility for communicating to a subscriber an incorrect report concerning the standing of a person in business-Damages-Discretion of Judge in the Court of first instance. The plaintiff in an action for $10,000 damages obtained a judgment of $2,000. The defendant appealed to the Court of Queen's Bench, where the judgment was reduced to $500. The plaintiff then appealed to the Supreme Court and the defendant filed a cross-appeal. Held, that the case was appealable to the Supreme Court, the matter in controversy being the judgment of the Superior Court for $2,000, which the plaintiff sought to have restored; TASCHEREAU and PATTERSON, JJ., dissenting. Held, also, per RITCHIE, C.J., and FOURNIER and GWYNNE, JJ., 1st, that persons carrying on a mercantile agency are responsible for the damages caused to a person in business by an incorrect report concerning his standing, though the report be only communicated to a subscriber to the agency, on his application for information. 2nd. Reversing the judgment of the Court below, that the amount of damages awarded by the Judge in his discretion in the Court of first instance, there being no error or partiality shown, should not have been interfered with by the Court of Queen's Bench. Levi v. Reed, 6 S. C. R. 482, and Gingras v. Desilets, Cassels' Dig. 117, followed. Belcourt, for the appellant. Lash, Q.C., and Girouard, Q.C., for the respondents. RAPHAEL v. MCFARLANE. Trusts and trustees-Shares subscribed for by father "in trust" for minor child-Arts. 297, 298, 299, C. C. Where the father of a minor, who is not her tutor, invests moneys belonging to her in shares of a joint stock company "in trust" and afterwards sells them without complying with the provisions of Arts. 297, 298, 299, C.C., to a person who has perfect knowledge of the trust, but pays full value, a tutor subsequently appointed has the right to recover the value of such shares from the purchaser; TASCHEREAU, J., dissenting. Sweeny v. Bank of Montreal, 12 App. Cas. 617, followed. McLennan, for the appellant. Geoffrion, Q.C., and Smith, for the respondent. [26TH FEBRUARY, 1891. CITY OF SHERBROOKE v. McMANAMY. Appeal-Validity of by-law-Supreme and Exchequer Courts Act, ss. 30, 24 (g), 29 (a), (b)—Constitutional question-- When not matter in controversy. The plaintiffs sued the defendants to recover the sum of $150, being the amount of two business taxes, one of $100 as compounders and the other of $50 as wholesale dealers, under the authority of a municipal by-law. The defendants pleaded that the by-law was illegal and ultra vires of the municipal council, and also that the statute 41 V. c. 84 was ultra vires of the Legislature of the Province of Quebec. The Superior Court held that both the statute and the by-law were intra vires and condemned the defendants to pay the amount claimed. On an appeal to the Court of Queen's Bench by the defendants (the present respondents) the Court affirmed the judgment of the Superior Court as regards the validity of the statute, but set aside the tax of $100 as not being authorized. The plaintiff thereupon appealed to the Supreme Court, complaining of that part of the judgment which declared the business tax of $100 invalid. There was no cross-appeal. On motion to quash for want of jurisdiction: Held, that s. 24 (g) of the Supreme and Exchequer Courts Act was not applicable and that as neither party on the present appeal attacked the constitutionality of the statute 47 V. c. 84, the case was not appealable under s. 29 (a) of the Supreme and Exchequer Courts Act; STRONG, J., dissenting. Brown, Q.C., for the appellant. |