had made. He held that it was the duty of the Government, under the exceptional circumstances, to have called the attention of Par

the fact of the delay.

for November and December, 1877, and January, 1878:

Adjacent Support.-Between the coal mines of the plaintiff and those of the defendant there was an intermediate piece of surface land, from under which the coal had long before been extracted by a third party. In the ordinary working of his mine, defendant had dug near the intermediate piece of land, and the latter had given way, thus causing a portion of the surface over plaintiff's mine to subside. Held, that the plaintiff was entitled to no relief. Corporation of Birmingham v. Allen, 6 Ch. D. 284. See Injunction.

Administrator-See Executor and Administrator.
Agreement-See Lease.

Ancient Lights. Where an old building having ancient lights was demolished and a new one put in its place, and a skylight put into the new one, substantially where a dormer window in the old one was situated, held, under the circumstances, that by 2 & 3 Will. IV. c. 71, § 3, the right to the light was not lost. But where the new building on the servient estate which obstructed the skylight was nearly completed, damages were allowed and an

In this work Mr. Morgan, author of "The Law of Literature," has brought together in a volume of convenient size 2,882 maxims, culled from a great variety of legal works. The maxims are given in English, with the original text below, and the whole compilation is indexed so as to facilitate reference. The work is very neatly printed and bound, and will no doubt prove acceptable to the practitioner as well as to the student.

Glass Ins. Co. v. Prudential Ins. Co., 6 Ch. D. 757.

Attorney and Client.-1. The rule that a solicitor cannot take a gift from a client while

the professional relation exists, applied with rigor.-Morgan v. Minett, 6 Ch. D. 638.

2.. A solicitor who acts for both mortgagor and mortgagee cannot claim a lien upon the title deeds for costs due him from the mortgagor, so as to entitle him to withhold the deeds from the mortgagee until those costs are paid, although the mortgagee knew that he had such

This is a monthly journal, devoted, as the title indicates, chiefly to educational subjects, The contents are useful and interesting, and a journal of this character should find a wide constituency. The type and paper are alike excellent, and place the new journal in these respects on a par with more pretentious productions.

3. A client paid her solicitor his bill, and gave her business to other solicitors, who also received the deeds and other documents re lating thereto. Held, that the first solicitor could retain the client's letters to him relating to the business, and also the press copies of his to her.-In re Wheatcroft, 6 Ch. D. 97.

See Company, 6.

Bankruptcy.—1. A gas-light company does not come within the words "landlord or other person to whom any rent is due from the bankrupt," in § 34 of the Bankruptcy Act, 1869, although the sum due the company for gas is, in one section of the Gas Works Clauses Act, spoken of as rent, and the special act under which the gas company was organized gives it power to levy by distress for such sums.-Ex parte Hill. In re Roberts, 6 Ch. D. 63.

2. Certain traders being in contemplation of bankruptcy, and wishing to raise money, arranged with one S. to draw bills on them, which they accepted. S. then sold the bills, amounting to £1,717, to Jones, the appellant, for £200. Jones was a discounter of bills, but never had bought any before this transaction. He had refused to discount these bills. He supposed the acceptors could not pay in full, and might, by inquiry, have found out their true condition. He knew that they had assets; and on their going, three days afterwards, into bankruptcy, he claimed to prove for the full face of the bills. The County Court in bankruptcy restricted the proof to the £200 paid for the bills; the Chief Judge reversed this, and allowed proof on the face of them; the Court of Appeal reversed the Chief Judge's order; and, on appeal to the House of Lords, held, that proof for £200 only could be allowed, as Jones must be held to have had knowledge of the fraud on the part of the maker and acceptors of the bills.-Jones v. Gordon, 2 App. Cas. 616; 8. c. 1 Ch. D. 137.

3. In a marriage settlement, M., the intending husband, assigned a policy on his life, for the benefit of his wife, to the trustees, and covenanted to pay the premiums. At the same time, a fund was set apart, out of which the premiums were to be paid, in case M. failed to pay them. May 8, 1871, M. went into bankruptcy, and from that time the premiums were paid out of the fund. May 15, 1874, the trustees of the settlement had the value of M.'s covenant to pay the premiums estimated, and proved the amount, £2,052 8s., as a claim against his estate. April 13, 1876, a dividend of 10s. was declared on M.'s estate; but before the receipt for this percentage on the above £2,052 8s. was signed by the trustees of the settlement, M. died. The amount paid for premiums out of the wife's fund had been £766 58. Held, that

the trustees of the settlement should receive only £766 58. actually paid out in lieu of the dividend on £2,052 8s. already declared.-In re Miller. Ex parte Wardley, 6 Ch. D. 790.

Bequest.-A testatrix gave to a charity all her household furniture, pictures, goods, chattels, trinkets, jewelry, and effects which might be in her dwelling-house, and also all her ready money, money at the bankers, and money in the public funds of Great Britain, and also all other of her personal estate and effects which she could by law bequeath to such an institution. Her personal property amounted to about £100,000, and her real to about £50,000. The will contained nothing but this bequest, and the appointment of executors. Held, that the bequest to the charity was specific, and that the debts, expenses, and costs must be paid first out of the real estate; but that the heirs having no of the personal estate undisposed of, then out interest in the probate of the will, the real estate was not in any event liable for the probate duty which must come out of the charitlease, which the testatrix had sold some time able bequest. The unpaid premium on a long before her death, was declared realty.—Shepheard v. Beetham, 6 Ch. D. 597.

Bill of Lading.-See Mortgage.

Bills and Notes.-See Bankruptcy, 2; Husband and Wife, 1.

Burden of Proof.-See Presumption.
Charity. See Bequest.

to

Charter-Party-By charter-party, the vessel six months, to "be placed under the direction V. was let by the defendant to the plaintiffs for of the charterers," "for the sole use of the charterers," "commencing from the vessel's becharterers." "The charterers to have the whole to be at the disposal of the ing ready reach of the vessel's holds including passengers' accommodation, if any, sufficient room being reserved to the owners for the assistance in loading and discharging." "The crew," &c.; the crew to "render all customary captain to sign all bills of lading.. follow the instructions of the charterers as regards loading," &c. The owners hired the captain to furnish the charterers. master and men, and paid their wages. "The when required, a true daily copy of the log," &c. While at sea, under this charter-party, the V. went to pieces, and the cargo was lost, through the negligence of the master and crew; and the question was, whether the master and crew were the servants of the owners or of the charterers. Held, that they were the servants of the owners, and the latter must pay for damage resulting Coal & Iron Co. v. Huntley, 2 C. P. D. 464. from their negligence.-The Omoa & Cleland [To be continued.]

VOL. I.

The Legal News.

MAY 18, 1878.

VALIDITY OF BAILEE RECEIPTS RECEIVED BY BANKS.

The case of The Merchants' Bank v. McGrail, decided by the Court of Review, at Montreal, on the 30th ultimo, deserves special notice, the question involved being one of great importance to banks and to the produce trade of the country. It arose upon the effect of an instrument known as a bailee receipt, given to the Bank by one Henry Parker, a factor and commission merchant, for goods pledged to the Bank at its agency in St. Thomas, Ontario, by Scott, Yorke & Co., of Aylmer, as security for a draft drawn by that firm upon Parker, and accepted by him. On the arrival of the goods at Montreal, the Bank, being desirous of realising thereon, entrusted them to Parker for sale, subject to its order; and received from him a receipt in the following form:

"Received from the Merchants' Bank of Canada, B. L. for 1284 hams, 100 shoulders, and 10 pes. bacon; and I hereby undertake to sell the property therein specified for account of the said bank, and collect the

proceeds of the sale or sales thereof, and deposit the same in the said bank, at Montreal, to the credit of acceptance No.2414, due July 11, hereby acknowledging myself to be bailee of the said property for the said bank.

"Dated at Montreal, the 22nd May, A. D. 1877.

Parker having become insolvent, his assignee (intervening party in the case) claimed that by entrusting the goods to Parker for sale, under the foregoing receipt, the Bank lost all lien on them, and all right to recover possession of them.

The use of these bailee receipts has for a long time past become practically universal in the trade at Montreal, and seems to be both convenient and just; but considerable doubt has been felt as to their validity, as, in the cases in which they are generally made use of, the persons entrusted with the possession of the goods for sale under such receipts are usually the purchasers of them.

As already stated, upon the arrival of the goods at Montreal, Parker accepted the draft so drawn on him, and the Bank entrusted them to him for sale under the terms of the bailee receipt.

Parker accordingly proceeded with the sale of the goods; but afterwards the Bank, having learned that he was in financial difficulties, requested him to deliver to them the balance of the goods in his hands, and, upon his refusal, they attached them by process of revendication.

Parker becoming insolvent, his assignee intervened, and claimed the goods attached as belonging to Parker's estate, relying mainly upon the proposition that Parker, having purchased the goods, they were his property, and that the Bank, being only pledgees, had lost their privilege by surrendering the goods to him, under article 1970 of the Civil Code, which enacts that the privilege subsists only while the thing pawned remains in the name of the creditor, or of the person appointed by the parties to hold it.

On its part, the Bank submitted and argued the following propositions:

2. The mere fact of the Bank having been informed that Parker had an ultimate interest in the goods cannot affect the validity of the bank's lien, or droit de rétention. The assignee's endeavour to wrest in his favour the principle of law, that the pledgor cannot at once pledge his goods and retain possession of them, cannot be successful. Parker was not the pledgor, nor was he the proprietor of the goods; because he could not become proprietor without paying off the Bank's lien.

3. The goods did not pass, under the attachment in insolvency, to the assignee; Parker having been merely the holder of them for the Bank in a representative capacity.

4. Should any doubt exist as respects the right of the Bank to revendicate the goods quoad third persons, creditors of Parker, there can be no doubt they would have had that right as against Parker, and consequently they have it as against the assignee, who stands in the place of Parker, and can have no greater right in the goods than he had (vide section 16 of the Insolvent Act of 1875).

The judgment of the Superior Court in the first instance was rendered by Mr. Justice Mackay, who held that although Parker had bought the hams and pork referred to, he having accepted the drafts drawn upon him and consented that the Bank should have the property to secure his (Parker's) acceptance, and he (Parker) having bound himself as expressed in the bailee receipt, the Bank had a right to the possession of the property at the time of the attachment made in the cause, and that as the Bank stood possessed before Parker's bankruptcy so it stood possessed afterwards.

The judgment of the Court of Review (Justices Torrance, Dorion and Rainville,) confirming this judgment, was delivered by Mr. Justice Torrance, who remarked: "We have no difficulty in disposing of this case. The Bank got control of the goods when they discounted the draft. The advance was to the drawers, Scott, Yorke & Co., of Aylmer, and their position could not be changed without their consent. The agreement with Parker under the bailee receipt did not change that position. On the contrary, it carefully preserved their right. The agreement was law to the parties, and perfectly

its judgment of 18th February, 1878, so held by maintaining the attachment of the Bank, and we confirm the judgment."

REPORTS AND NOTES OF CASES.

COURT OF REVIEW.

Montreal, April 30, 1878.
TORRANCE, DORION, RAINVILLE, JJ.
LEFEBVRE V. BRANCHAUD.

[From C. C. Beauharnois.

Sale-Registration-Hypothec.

Held, that until the purchaser of real estate has registered his title, the creditors of the vendor may, subsequently to the sale, obtain a valid legal or judicial hypothec on such property, sale without registration having no effect as regards third parties.

The plaintiff bought an immoveable on the 28th November, 1876, and registered his title on the 5th December following. In the interval, on the 30th November, the defendant, having obtained a judgment against the vendor, registered it against the immoveable in question as being still in the vendor's possession, the purchaser not having registered his title. The plaintiff in the present case sought to have the hypothec cancelled, as having been obtained against a property which at the time the judgment was rendered did not belong to the debtor.

In the Court below, the demand was maintained, and the hypothec declared null. In Review,

DORION, J., who rendered the judgment, remarked that the case presented a pure question of law, there being no difficulty as to the facts. Does an unregistered sale divest the vendor of possession with respect to third parties, so that the latter cannot acquire a legal or judicial hypothec on the property sold? His Honor held that it did not. On the other side, art. 2026 C. C. was relied on. This article declares that judicial hypothec affects only immoveables which belong to the debtor, and the sale being perfect by the consent of the parties under art. 1472, it followed that when the judgment was obtained and registered the debtor was no longer proprietor, and his creditors could not acquire a hypothec on the property sold. This pretension, in his Honor's

opinion, was erroneous. Art. 1472 is governed by 1027, which says that in contracts for the alienation of immoveables the sale is perfect by the mere consent of the parties, even as to third parties, but subject to the dispositions relative to the registration of real rights on such immoveables. Recourse must therefore be had to the law respecting registration. His Honor cited articles 2082, 2083, and 2098, and held that if an unregistered purchaser cannot confer any right (2098) it is because he is not proprietor as to third persons. The vendor, therefore, remained proprietor, and the creditor who obtains a judicial hypothec must have a privilege. This doctrine was followed in France, 24 Demolombe, no. 450, and in Chesner v. Jamieson, 19 L. C. Jurist, 190, the Court of Appeal unanimously maintained a registered conventional hypothec against an unregistered sale, made six years before. There was no reason why a distinction should be drawn between a conventional and a legal or judicial hypothec. The judgment setting aside the hypothec must therefore be reversed.

Judgment reversed.

Duranceau for the plaintiff. Branchaud for the defendant.

GRENIER V. LEROUX.

[From S. C. Montreal.

Donation-Revocation-Sheriff's Sale-Bidding. Held, 1. That a stipulation for the benefit of a third party made in a deed of donation may be revoked by the donor, even without the consent of the donee, if he has no interest in its fulfilment ; so long as the person intended to be benefited has not expressed his intention of accepting it.

2. An agreement between two persons that one of them shall bid up a property at Sheriff's sale to a certain figure, and then re-sell it to the other, is perfectly legitimate.

Oliver Grenier, the father, made a donation entre vifs of an immoveable to his minor son on condition of paying 1500 livres to each of his brothers and sisters on their coming of age. This donation was accepted by the grandfather of the donee. Some months afterwards the donor revoked this donation with the concurrence of the grandfather who had accepted on behalf of the minor. But when the latter attained his majority, he formally signified his acceptance of the donation. At this date, the immoveable was under seizure at the suit of

creditors of the donor. The donee then filed an opposition to annul the seizure, claiming the property as his. This opposition suspended the sale, but an arrangement was come to between the donee and the creditors, by which the former in effect renounced his acceptance of the donation.

The present action was brought by one of the brothers of the donee, against the purchaser at sheriff's sale, claiming a hypothec on the property for his 1500 livres.

DORION, J., for the Court, held that the rights of the brothers and sisters, who had never accepted the donation in any way, were completely extinguished by the donee's renunciation of his acceptance. Even if the plaintiff had a hypothecary claim, it was purged by the sheriff's sale, and the plaintiff could only be collocated on the proceeds. It was pretended that the sale was a nullity because the purchaser agreed to bid the property up to a certain amount, in order to sell it back to the donee. But the plaintiff had no right to complain of this. The judgment maintaining his claim must be reversed, and the action dismissed.

Judgment reversed. Doutre, Doutre & Robidoux for plaintiff. Geoffrion, Rinfret & Dorion for defendant.

TORRANCE, DORION, PAPINEAU, J. J. THE MERCHANTS' BANK OF CANADA V. MCGRAIL, and LAJOIE, Assignee, intervening.

[From S. C. Montreal. Bailee-Receipt-Revendication.

TORRANCE, J. The question submitted is as to the privilege of the Bank on goods revendicated. On the 9th of May, 1877, the plaintiffs at the agency of their Bank at St. Thomas, Ontario, discounted a draft for the firm of Scott, York & Co., of Aylmer, drawn by that firm upon Henry Parker, represented in the present case by his assignee, Louis Joseph Lajoie, and at the time of such discount received as collateral security for its acceptance and payment, a bill of lading of the goods as being shipped by that firm to the plaintiffs or order at Montreal. The plaintiffs say that by the delivery of this bill of lading, the bank, under sections 46, 47, and 49, of the Banking Act, 34 Vict. Chapter 5 (1871), became vested with the goods mentioned in the bill of lading, and had a right to retain them