to another person (unascertained) their authority to decide whether the sum of $110, part of the amount awarded, should or should not be paid: see Tandy v. Tandy, 9 Dowl, 1044. Blakeston v. Wilson, 23 Occ. N. 27, 14 Man. L. R. 271. 4. Leave to enforce award-Time -Motion to set aside.]-An application under s. 13 of the Arbitration Act, R. S. O. 1897 c. 62, for an order giving leave to enforce an award, need not be made within six weeks after the publication of the award.-Section 45 of the Act does not apply to such an application, but only to applications to set aside awards.-An order under s. 13 is necessary when the reference has been made out of Court.Objections properly the subject of a motion to set aside the award were not considered upon appeal from an order under s. 13. In re Lloyd and Pegg, 23 Occ. N. 171, 5 0. L. R. 389. 5. Remitting to arbitrators-Incompetency of arbitrator Appointing new arbitrator.]-Section 11 of the Arbitration Ordinance provides that "in all cases of reference to arbitration the Court or a Judge may, from time to time, remit the matters referred or any of them to the reconsideration of the arbitrators or umpire." Remission was refused because after the submission was entered into one of the arbitrators commenced an action against the party who had nominated him, to recover an amount agreed to be paid for procuring settlement of the matters in dispute.-Where the instrument of submission names the arbitrators, the Court or Judge has no power to appoint a new arbitrator in lieu of one who has become incompetent. Re Crawford and Allen, 5 Terr. L. R. 398. Miscon 6. Setting aside award.— duct of arbitrator-Waiver.]-A party to an arbitration does not waive his right to object to an award on the ground of misconduct on the part of an arbitrator by failing to object as soon as he becomes suspicious and before the award is made; he is entitled to wait until he gets such evidence as will justify him in impeaching the award.-Where two out of three arbitrators go on and hold a meeting, and make an award at a time when the third arbitrator cannot attend, it amounts to an exclusion of the third arbitrator, and the award is invalid. A party by attending at such a meeting and not objecting (although he knew of the third arbitrator's inability to attend) does not waive his right to object afterwards.-Per HUNTER, C.J.-It is not necessary that there should be absolute proof of misconduct before an award will be set aside on that ground; it is enough if there is a reason able doubt raised in the judicial mind that all was not fair in the conduct of one or more of the arbitrators. In re Doberer and Megaw's Arbitration, 23 Occ. N. 272, 10 Brit. Col. L. R. 48. 7. Stated case Matter" arising in the course of the reference "-Construction of contract-Revoking submission--Discretion-Special qualifications of arbitrators-Questions of law.]-Arbitrators were appointed under the arbitration clause in an agreement between two companies, whereby, inter alia, one agreed to provide the other daily with a certain quantity of cordwood, which the latter agreed to carbonize into charcoal and to deliver to the former to the maximum quantity of 85,000 bushels per month. The arbitration clause provided that in case of any dispute in regard to the meaning or construction of the agreement or of the mutual obligations of the parties or of any other act, matter, or thing relating to or concerning the carrying out of the true spirit, intention, or meaning of the agreement, the same should be determined by arbitration. One of the claims referred to the arbitrators was for damages for short delivery of charcoal, a shortage being claimed whatever the proper construction of the agreement in that regard. On an application by one of the parties, under s. 41 of the Arbitration Act, R. S. O. 1897 c. 62, for a direction to the arbitrators to state a special case upon which the Court should determine the true construction of the contract as to the amount of charcoal called for per month under it-a matter upon which they had reached and announced a conclusion:-Held, that, the claim referred to leaving the proper construction of the agreement open, this was a question of law "arising in the course of the reference." within the meaning of s. 41, and a special case might properly be directed as to it. 2. That a special case having been directed as to the principal question, it might properly be made to include two other questions in dispute, though, had they been the only questions which the applicants desired to have stated, it would not have been proper to direct a case as to them. 3. A party to a reference is not entitled ex debito justitia to have a special case directed whenever a question of law arises in the course of a reference; it is a matter in the discretion of the Court. 4. There is no general rule that when the arbitrators are specially qualified to decide a question of law, this direction should not be given, at all events where the arbitrators have ruled upon the question. Semble, that different considerations apply to the exercise of the discretion to give leave to revoke a submission (s. 3 of the same Act)-a discretion which is to be exercised only under exceptional circumstances. In re Rathbun II. IN NOVA SCOTIA. Bail bond-Discharge-Exoneretur.] Application for an order to deliver up the bond, given on the defendant's arrest, to be cancelled, the action having been dismissed-Held, that the order should be for the entry of an exoneretur on the bond, not for the delivery up of the bond, following the old practice (Allison v. Desbrisay, Cochrane 19), there being no specific Rule in the Nova Scotia Judicature Act, on the subject. Watson v. Leukten, 23 Occ. N. 336. ARREST. I. IN NEW BRUNSWICK. See APPEAL, X. 5-BANKRUPTCY AND INSOLVENCY, I. 14-CONTEMPT OF COURT, 5 GIFT, 7-JUDGMENT DEBTOR, 1 MALICIOUS PROSECUTION MILITARY LAW-SHERIFF, 2. I. IN NEW BRUNSWICK. Privilege-Execution-Inferior Court -Action on limit bond-Assignment by sheriff on same day-Holiday-Sitting of Court.]-The arrest of a person, having privilege by reason of his being an officer of a Superior Court, under an execution issuing out of the City Court of S., is not void, nor does such privilege afford any defence to an action on a limit bond entered into by such officer in order to obtain his discharge.-If two things are done upon the same day, it will be assumed that that which ought to have been first done was so done; therefore in an action upon a limit bond by the assignee of the sheriff, it was held, in the absence of proof to the contrary, that, though the assignment and the writ commencing the action were dated upon the same day, the bond was assigned before the writ was issued.-The assignment by the sheriff being a mere formality, only going to shew that the assignee was satisfied with the security, the date thereof was immaterial.-Where a Court was by statute bound to sit on a certain day in each week unless Christmas day. New Year's day, or any other legal holiday should fall upon such day:-Held, that a day proclaimed by the Governor-General and the Lieutenant-Governor as a holiday for a general public thanksgiving was a legal holiday within the meaning of the Act, and that the Court was not bound to sit upon such a day. Dibblee v. Fry, 35 N. B. Reps. 282. III. IN QUEBEC. 1. Capias-Affidavit — Amendment Time and place of debt.]—The affidavit required for the issuing of the writ of capias is not a proceeding susceptible of being amended. 2. Such affidavit must mention the time and place where the indebtedness occurred, within the limits of the Provinces of Quebec and Ontario. Julien v. Chuna, 5 Q. P. R. 413. Ꭺ 2. Capias- Affidavit Debt.] capias will be quashed upon petition if the affidavit does not shew that the debt for which it was sued out is a personal debt, or if it does not indicate the place at which the debt was created or became exigible. European Importing Co. v. Mallekson, 5 Q. P. R. 255. 3. Capias-Affidavit "Immediately."]-An affidavit for capias must set forth that the defendant is immediately about to leave the Provinces of Quebec and Ontario, and a capias issued upon an affidavit merely stating that the defendant is about to leave the said Provinces, will be quashed on petition to that effect. Kidd v. MacKinnon, 5 Q. P. R. 177. 4. Capias Affidavit Residence of parties-Place where debt contracted.]— When it appears by the affidavit for capias that the plaintiff as well as the defendant resides in the Province of Quebec, it is not necessary to allege specially that the debt was contracted within the Province. Beauchemin v. St. Pierre, 5 Q. P. R. 484. 5. Capias - Petition to quash - Deposit Incidental capias DeclarationTime.]-A petition to quash a capias, based not upon the grounds mentioned in Art, 919, C. P.. but upon formal grounds, is subject to the deposit required with preliminary exceptions.-2. The declaration of an incidental capias must be deposited at the office of the Court within three days after service of the writ. Radford v. Hickey, 5 Q. P. R. 311. 21 ARTICLES OF ASSOCIATION--ASSESSMENT AND TAXES. -- 6. Capias Security money Payment over-Motion.]-A plaintiff, who has succeeded upon a capias, cannot demand by motion that the deposit made with the sheriff by way of security shall be paid over to him. Rosenberg v. Belankow, 5 Q. P. R. 378. 7. Contrainte par corps-Executor -Account.] - Civil imprisonment of a testamentary executor will not be ordered in an action in contestation of his account and to recover the alleged share of the plaintiff in the reliquat of such account. Morris v. Meehan, 6 Q. P. R. 43. 8. Contrainte par corps-Right to -Personal injuries Accident.]-Injuries caused by a simple accident resulting from the negligence of a person, without any intention on his part to injure, are not personal injuries on account of which coercive imprisonment can be ordered against such person. Chartrand Smart, Q. R. 23 S. C. 304, 5 Q. P. R. 173. V. 9. Contrainte par corps WritExhaustion-Deputy-prothonotary.] A writ or order of the Court or Judge for coercive imprisonment is exhausted by the imprisonment of the debtor, followed by his liberation, and no new arrest or imprisonment can thereafter be executed in virtue of the said writ.-2. A writ or order for coercive imprisonment cannot be issued by a deputy-prothonotary of the Court, and an imprisonment effected in virtue thereof is illegal. Gaudet v. Archambault, 6 Q. P. R. 27. ASSESSMENT AND TAXES. I. ASSESSMENT ROLL. II. CHARGE ON LAND, III. DISTRESS FOR TAXES. V. STATUTE LABOUR. VII. VALUATION OF PROPERTY. See APPEAL, II. 4-COMPANY, IV. 3CONSTITUTIONAL LAW, 11-COURTS, IX. 6 CRIMINAL LAW, II.12-MUNICIPAL CORPORATIONS, I, 1, 6-MUNICIPAL ELECTIONS, 11-SCHOOLS, 4. I. ASSESSMENT ROLL. Contestation -- · In Prescription terruption Injunction.]-The contestation of a special assessment roll by a person named therein has not the effect of interrupting prescription as regards other persons subject to such assessment. -2. Even where the party contesting obtains a temporary order enjoining the city against making any collection under the roll attacked, prescription is not interrupted as regards other persons named in the assessment roll. where the making of such order is not objected to by the city, and where no steps are subsequently taken by the city to obtain its rescission. City of Montreal v. Land and Loan Co., Q. R. 23 S. C. 461. ARTICLES OF ASSOCIATION. See COMPANY, I. 2. ASSAULT. Action for Particulars.] The plaintiff sued for damages for an assault and battery on the 9th April, 1903, on the S. S. "Dahome," then being in Demerara; also for an assault and battery on board the "Dahome," then being on the high seas:-Held, that, as the month of April might cover an assault and battery other than that of the 9th, there ought to be particulars in order to prevent surprise at the trial. An assault is such an easy thing to commit that notice of the particular occasion should be given. Leukton, 23 Occ. N. 247. Watson V. See COSTS, VI. 1-CRIMINAL LAW, III. 12, 18-RAILWAY, VI, 2. II. CHARGE ON LAND. 1. Cost of road-work Personal liability of purchaser.] A municipal corporation has no right of action to recover the costs of road-work against the subsequent purchaser of the land assessed, but must first take judgment against the person liable for such work. Township of Roxton v. De Lorimier, Q. R. 24 S. C. 57. 2. School rates - Hypothec-Registration-Judgment Sale Interest Costs-Prescription.]-School rates constitute a privileged claim upon immovables (Art. 2009, 2011, C.C.), and are exempt from the formality of registration (Art. 2084, C.C.).-2. Where, under a specific provision of the law, a hypothec exists without registration, a judgment upon the debt does not need to be registered in order to preserve the hypothec, nor does sale purge the property therefrom. - 3. The hypothec also covers interest and the costs of a personal judgment against the debtor, such interest and costs being Warrant-Payment under constraint -Illegal arrest-Action for.]-A warrant for taxes alleged to be due to the defendants was issued by the town treasurer and placed in the hands of a constable for collection. The constable went to the plaintiff's place of business to collect the amount, but, it being Saturday night, an arrangement was made between the constable and plaintiff that the latter would go up on Monday morning and see about the taxes. The plaintiff went to the treasurer's office and contended that the amount claimed in the warrant had been paid, but, as the treasurer insisted that the amount had not been paid, the plaintiff handed him the amount claimed.—It appeared that the amount in dispute was due in respect of a property which the plaintiff sold to Y., who agreed to pay the taxes upon it, and paid the same to the treasurer, intimating that it was paid on account of the plaintiff's property, but that the treasurer appropriated the amount in payment of a like amount due by Y. personally. The plaintiff brought an action for illegal arrest, and claimed, as special damage. amount wrongfully extorted from the plaintiff, as set forth in paragraph 4 of the pleading, $8.25." Paragraph 4, referred to. detailed the issue of the warrant 'whereby the plaintiff was unlawfully compelled to pay an illegal demand of the defendants, to wit, the sum of $8.25:"-Held, that, even on the plaintiff's own evidence, the action must fail. Walker v. Town of Sydney, 36 N. S. Reps. 48. 66 66 IV. EXEMPTIONS. 1. Canadian Pacific Railway lands-Twenty years' exemption-Grant from the Crown-Taxation by the Do 66 minion-School taxes-Time of vesting of land granted.]-The words grant from the Crown" in clause 16 of the contract between the Government of Canada and the promoters of the Canadian Pacific Railway, ratified by Act of Parliament, 44 V. c. 1, mean the letters patent conveying the land, and the twenty years' exemption from taxation provided for in that clause do not begin to run, in respect of any particular parcel, till the date of the letters patent. The words "taxation by the Dominion" in the same clause do not include taxation by school corporations created by the Government of the North-West Territories under powers of legislation conferred upon it by various Acts of Parliament prior to the statute referred to, and, consequently, the railway company are not exempted by said clause from taxation of their lands by such a school corporation until such lands shall be included in a Province hereafter to be created.-Under the contract referred to and the company's charter of incorporation and the ratifying Act, 44 V. c. 1, it was not intended that they should take any vested interest in any specific lands until actual formal conveyance from the Crown by letters patent in the usual course. Rural Municipality of North Cypress v. Canadian Pacific R. W. Co., Rural Municipality of Argyle v. Canadian Pacific R. W. Co., School District of Springdale v. Canadian Pacific R. W. Co., 23 Occ. N. 159, 14 Man. L. R. 382. 2. Personal property of military persons Government building.]—Under the provisions of the Halifax city charter, Acts of 1891, c. 58, s. 336, the following, among other property, is exempted from assessment: All personal property of military persons residing in government buildings, or barracks," etc:-Held, that a private house in the city, under lease to His Majesty's Principal Secretary of State for the War Department, for the purpose of being used as a place of residence by a military person, for whom there was no suitable accommodation in any barracks in Halifax, was a government building" within the meaning of the statute, and that personal property contained in such building was exempt from taxation for civic purposes. Smith v. City of Halifax, 35 N. S. Reps. 373. V. STATUTE LABOUR, Assessment Act - Imperative provision Separate assessment of distinct lots.]-Section 109 of the Assessment Act, which in effect provides that if the assessment is for more than 200 acres the statute labour shall be rated and charged against every separate lot or parcel according to its assessed value, is imperative, and not merely directory. Where, therefore, on an assessment of 600 acres, instead of the amount chargeable against the several lots owned by the plaintiff being rated and charged against each lot, a bulk sum was assessed for statute labour and charged against the whole of them, the assessment was held invalid. Love v. Webster, 26 O. R. 453, followed. Waechter v. Pinkerton, 6 O. L. R. 241. -- VI. TAX SALE. In an 1. Invalidity-Onus-Proof of taxes in arrear - Assessor's return-Irregularity Limitation of actions.] action brought on the 23rd April, 1902, to set aside a sale of land made on the 7th October, 1898, for arrears of taxes for 1895, 1896, and 1897, and a deed made in November, 1899:-Held, that the onus of proof of the invalidity of the tax title rested on the plaintiffs.-Taxes for the whole period of three years next preceding the 1st January, 1898, being due and in arrear and unpaid, and those for the year 1895 having been in arrear for three years next preceding that day, the lot was, by s. 152 of the Assessment Act, R. S. O. 1897 c. 224, liable to be sold in 1898 for such arrears. The proceedings leading up to the sale were substantially regular, with one exception, the omission of the clerk of the municipality to furnish the treasurer, as he is required to do by the last clause of s. 153, with a true copy of the list furnished by the latter under s. 152, with the assessor's return, certified to by the clerk under the seal of the corporation. Quare, whether this requirement of s. 153 was of so essential a character as, conceding that taxes were in arrear, to render a sale invalid if attacked before any statutory limitation upon an action came into operation.Love v. Webster, 26 O. R. 453, distinguished:-Held, however, that as in this case the omission worked no injury to the plaintiffs, who had all the notices and delays to which they were entitled, and in respect to whose land all the other conditions essential to a valid tax sale existed, and as the action was brought more than three years after the sale and more than two years after the deed, it should be dismissed. Kennan v. Turner, 23 Occ. N. 195, 5 O. L. R. 560. 2. Sale by provincial assessorProperty of municipality - Purchaser Agent Fiduciary relationship.] — The city of Nelson was incorporated in March, 1897, and in September, 1898. land situated therein was sold by the provincial assessor for taxes for the years 1896 and 1897, levied under the provisions of the Assessment Act:-Held, setting aside the tax deed, that there was no authority to hold the tax sale, as the Assessment Act does not apply to municipalities. In July, 1897, a real estate agent on behalf of the owner negotiated with a prospective purchaser, but the attempted sale fell through, and after that the agent and the owner ceased to have any dealings with each other. In September, 1898, the agent bought the property at a tax sale at a very low figure:-Held, that at the time of the sale the agent was not in a fiduciary relation to the owner. McLeod v. Waterman, 10 Brit. Col. L. R. 42. VII. VALUATION OF PROPERTY. 1. Improvements-Selling value.]The measure of value of improvements for purposes of taxation prescribed by s. 38 of the Vancouver Incorporation Act, 1900, is the actual cash selling value, and not the cost. In re Municipal Clauses Act and J. O. Dunsmuir, 8 Brit. Col. L. R. 361, followed. In re Vancouver Incorporation Act, 1900, and B. T. Rogers, 9 Brit. Col. L. R. 373, not followed. In re Vancouver Incorporation Act, 1900, and B. T. Rogers, 9 Brit. Col. L. R. 495. 66 2. Property of electric companies- Substructures and superstructures Rolling stock, plant, and appliances Construction of statute Ejusdem generis rule.] Held, that 2 Edw. VII. c. 31, s. 1, s.-s. 4 (0.), substituting a new s. 18 in the Assessment Act, and providing that save as aforesaid, rolling stock, plant, and appliances mentioned in s.-s. (2) hereof, shall not be land within the meaning of the Assessment Act, and shall not be assessable," does not exempt the appellant companies from assessment in respect of their plant and appliances (though otherwise land within the meaning of s.-s. 9 of s. 2 of the Assessment Act), which is not upon the streets, roads, highways, etc., as tioned in s.-s. 3 of that section.-The object of s.-s. 4 is to make it clear that rolling stock, etc., of the railway companies which is found and used in the streets, shall not, save as mentioned in s.-s. 3, be, by reason merely of the wide words "substructures and superstructures used in s.-s. 3, be liable to taxation as land. The words plant and appliances." following the specific term men rolling stock," are to be read as restricted to the same genus as the latter, the whole having the meaning of rolling stock, rolling plant, and appliances such as tools in connection with or belonging to such stock; and the reference is to "rolling stock, plant, and appliances" of such companies mentioned in s.-s. 2 as |