held liable if the negligence of each was a real cause of the accident; for either to escape liability it must be proved that the negligence of the other was the sole cause.

By an agreement between the Interurban Electric Co. and the City of Toronto, operating the Hydro-Electric System, the former undertook to 'save harmless and indemnify the said corporation against all loss, damages

have to pay

which by reason

the corporation may of any act, default or omission of the company or otherwise howsoever." An employee of the company was killed in course of his employment and in an action by his personal representative the jury found that the city and the company were each guilty of negligence which caused the accident.

Held, that the agreement did not apply to the case of damages which the city would have to pay as a consequence of its own negligence and neither relieved it from liability nor entitled it to indemnity. Judgment of the Appellate Division (36 Ont. L.R. 269), affirmed.

Appeal dismissed with costs.

C. M. Colquhoun, for appellant; B. N. Davis, for Lambert; D. Inglis Grant, for Interurban Electric Co.

Ont.]

[Dec. 30, 1916.

COUNTY OF WENTWORTH V. HAMILTON RADIAL ELECTRIC RAILWAY Co. AND CITY OF HAMILTON.

Portion of county road-Railway franchise-Annual payments-Divisibility after annexation-Ontario Railway and Municipal Board-Order for annexation.

In 1902, the County of Wentworth passed a by-law by which an electric railway company was given the privilege of running cars over a county road on paying annually a certain sum for each mile of the operated road. In 1909, territory of the county, including part of said road, was annexed to the City of Hamilton.

Held, that the agreement with the railway company remained in force in respect of the portion of the road so annexed and the county was entitled to the whole of the annual payment as if the annexation had not taken place.

The railway company, by agreement in writing, accepted the said by-law of the county and covenanted with the latter "their successors and assigns" to perform all the conditions thereof.

Held, that the City of Hamilton did not, as a consequence of the annexation of county territory, become the "successor" of the county under said agreement and by-law so as to be entitled to a proportion of the payments to be made by the railway company thereunder.

Judgment of the Appellate Division (35 Ont. L.R. 434), reversed and that of the trial Judge (31 Ont. L.R. 659), restored. Lynch-Staunton, K.C., and Counsell, for the appellants.

Rose, K.C., and Waddell, K.C., for the City of Hamilton, respondent.

Leighton McCarthy, K.C., and Gibson, for the Hamilton Radial Railway Co., respondents.

Ont.]

[Feb. 6.

MACEWAN V. TORONTO GENERAL TRUSTS CORPORATION. Contract-Consideration-Settlement of action Statute of Frauds -Trade agreement-Restraint of trade-Criminal Code, sec. 498.

In 1905, M. and his two brothers entered into a contract with R. by which they gave him exclusive control of their salt works with some reservations as to local trade. R. assigned the contract to the Dominion Salt Agency, a partnership consisting of his firm and two salt manufacturing companies, which agency thereafter controlled about ninety per cent. of the output of manufacturers in Canada.

Held, that, as the output was exceeded by the quantity imported which may have competed with it, and as the price was not enhanced by reason of this control by the agency, the contract had not the effect of unduly restraining the trade in salt and did not contravene the provisions of sec. 498 of the Criminal Code.

In 1914, M., as administrator of his father's estate, brought action against the estate of C. who, in his lifetime, had been president of the Dominion Salt Agency and president of and largest shareholder in one of the companies comprising it. This action was based on an alleged agreement by C., in connection with the settlement of a prior action against the three partners in the agency, by which he promised to pay five-sixteenths of the difference between the amount claimed and that paid on settlement. Evidence of the agreement was given by the plaintiff's solicitor in the former action and by defendant's solicitor also.

Held, reversing the judgment of the Appellate Division (36 Ont. L.R. 244), Fitzpatrick, C.J., and Duff, J., dissenting, that the settlement of the action was good consideration for C's contract; that his agreement was not a promise to answer for the

debt of another and did not need to be in writing; that it was sufficiently proved; and that the evidence of the plaintiff's solicitor in the former action was corroborated (R.S.O. 1914, ch. 76, sec. 12), by that of the solicitor for the defendants.

Per Anglin, J.:-The solicitor was not an interested party and corroboration was not required for that reason; if required for any other it was furnished.

The original agreement transferring the salt business to R. was executed by the three brothers "as representing the estate of M., deceased." The action which was settled was brought by the same three persons. After the settlement letters of administration to M's estate were taken out.

Held, that the present action was properly brought in the name of the administrator but, if necessary for defendant's protection, his two brothers might be added as plaintiffs.

Appeal allowed with costs.

Garrow, for appellant. Weir, for respondent.

EXCHEQUER COURT.

Audette, J.]

[Dec. 30, 1916.

LA COMPAGNIE GENERALE D'ENTREPRISES PUBLIQUES V. THE

KING.

Collision-King's ship-The Exchequer Court Act, sec. 20 (c)——— "Public work"-Negligence.

Except under special authority the Crown cannot be impleaded in the Courts, nor will an action in tort lie against it.

2. The Crown is not responsible in damages for collision with a King's ship in the absence of any statutory provision therefor.

3. A collision occurred on the River St. Lawrence between Levis and Quebec wherein the suppliant's scow-derrick was injured by a ship belonging to the Crown.

Held, that the suppliant could not recover under sub-sec. (c) of sec. 20 of The Exchequer Court Act as the accident did not happen on a public work.

A. Marchand, for suppliant.

F. E. Meredith, K.C., and J. Gosselin, for respondent.

Audette, J.]

JACOB V. THE KING.

[January 8.

Death resulting from negligence-Crown's servant—Sub-sec. (f) sec. 20 The Exchequer Court Act-"Upon, in or about."

In the course of a shift of a gang of men fron one bunker to another in the hatchway of a collier, being unloaded by means

of a clam from a crane trestle on a government pier upon which extended spur lines of the Intercolonial Railway, the clam was kept in operation during such shift, and the suppliant was struck by the same and killed.

Held, that the omission to stop the operation of the clam during the shifts "in, on or about," the Intercolonial Railway, was negligence for which the Crown was liable under sub-sec. (f) of sec. 20 of The Exchequer Court Act.

E. Belleau, K.C., for suppliant. E. Gelly, for respondent.

The state of accounts can only affect the ass gnee of a charge or mortgage under the Land Titles Act, R.S.O. 1914, ch. 126, in so far as payments have been made subsequent to the date of the mortgage; if without actual notice when the assignment is made the assignee is not affected by the fact that the amount for which the mortgage was given has in fact never been paid.

[Land Titles Act, R.S.O. 1914, ch. 126, sec. 54; Conveyancing and Law of Property Act, R.S.O. 1914, ch. 109, considered.] 2. Mortgage Blanks-Chargee fraudulently named-Bona fide assignee.

The fact that a mortgagee is fraudulently named in a mortgage executed in blank does not affect the right of a bonâ fide assignee to treat the person named as the valid holder of the charge, although in fact the latter had paid nothing to the mortgagor; it is only in so far as payments have been made that an assignee is affected by "the state of the account."

J. E. Jones and V. H. Hatten, for plaintiff.

Bradford, K.C., for defendant.

ANNOTATION ON THE ABOVE CASE FROM D.L.R.

The prominent features of this case are as follows:

1. A document signed in blank.

2. A mortgage or charge, without consideration -no money having been

advanced.

3. A receipt for the mortgage money contained in the body of the charge. 4. An assignment of the charge for value to a purchaser, without notice that no money had been advanced.

5. No notice of the assignment to the chargor, and no concurrence by him in the assignment.

case.

6. The defence of purchase for value without notice, not considered in the

1. Document signed in blank.—At the common law, a document under seal executed in blank is not a deed, and can only be filled up by someone other than the signer upon proper authorization: Armour on Real Property, 2nd ed., p. 332.

There may be some difference of opinion as to whether this principle should be applied to dealings under the Land Titles Act, R.S.O. ch. 126.

By sec. 30 (1). Every registered owner may, in the prescribed manner, charge the land, etc. By sec. 38 (1), he may, in the prescribed manner, transfer the land. The prescribed manner is not defined in the Act. But sec. 69 (1) declares that every transfer or charge signed by a registered owner shall confer a right to be registered. And sec. 102 provides that "notwithstanding the provisions of any statute, or any rule of law, any charge or transfer of land registered under this Act may be duly made by an instrument not under seal," and it is to have the same effect as to stipulations therein as if it were under seal. (It is noticeable that transfers of charges are not included in these provisions, although the custom is to dispense with a seal.) So far as these provisions are concerned, sealing alone is dispensed with. And it might be inferred that the other provisions of law respecting conveyances should apply, were it not for the fact that when a signed transfer or charge is presented to the Master of Titles, the transferee becomes entitled to be registered as owner or chargee under sec. 69, and to receive a certificate of ownership. It seems, therefore, that if the transfer or charge were originally void by reason of its having been signed in blank, it becomes effective by the registration, and enables the transferee or chargee to pass on to his purchaser a good title to the land or charge.

2. Mortgage without consideration.-It cannot be doubted that where a mortgage is made for an anticipated advance, and the advance is not made, nothing can be recovered by the mortgagee; and the mortgagor has a clear right to have the instrument delivered up to be cancelled.

3. Receipt embodied in conveyance.-By R.S.O. ch. 109, sec. 6, "A receipt for consideration money or securities in the body of a conveyance shall be a sufficient discharge to the person paying or delivering the same, without any further receipt being endorsed on the conveyance." The English practice was to ignore the receipt in the body of the conveyance, and, when the purchase money was paid, to endorse a receipt therefor on the conveyance; and absence of such endorsed receipt was constructive notice to a subsequent purchaser that the money had not been paid. This was not the practice in Ontario; but, in any event, this enactment renders a separate receipt for the purchase money unnecessary. But the purchase money must be actually paid or the securities actually delivered. It is difficult to see what, if any, change has been made by this enactment as to the relations between vendor