after the recovery of the judg-| no terms were discussed and he ment in the name of the defend- paid her no rent. ant McKenzie were held by her as a bare trustee for McLean, or had been fraudulently transferred to her in order to hinder and defeat the creditors of McLean.

The evidence also showed that the defendant McLean had himself cultivated and managed the farms for his own benefit, and had in fact always dealt with the lands as if they were his own, but in his evidence at the trial he stated that he had been working for his son in cultivat

Both parcels of land had formerly belonged to McLean, but they had been sold for arrears of taxes in 1886; and subsequently the purchasers after negotiations ing the land. carried on by McLean or his solicitor assigned the tax sale Held (1) that the plaintiffs certificates to the defendant Mc- were entitled to the relief asked Kenzie, a poor girl who lived for and that section 57 of The with McLean, her uncle. Tax Real Property Act, R. S. M., c. deeds were issued to her by the 133, as amended by 55 Vic., c. Municipality and certificates of 38, s. 4, does not prevent the title under The Real Property granting of the relief as it proAct were obtained for both par- "subject to the right of any per

cels in Miss McKenzie's name.

vides that a certificate of title is

She claimed that she had furn- son to show fraud wherein the ished the money, $125, required registered owner has particito acquire the tax sale certifi-pated or colluded," and the law cates, but the evidence in sup- declares that such a transaction port of this was not satisfactory as was held to have been proved to the Court which held that the is fraudulent under 13 Eliz., c. 5, onus was upon her to establish and Miss McKenzie participated this fact by clear and convincing in it.

proof, and the additional sum, Barrack v. McCulloch, (1856) about $125 more, required to 3 K. & J. 117; Merchants' Bank complete the purchases and pro- v. Clarke, (1871) 18 Gr. 594; cure the certificates of title was Harris v. Rankin, (1887) 4 M. not provided by her. R. 129; and Re Massey & Gibson, (1890) 7 M. R. 172, followed.

(2) The Statute of Limitations could not be set up as a defence as the fraud was a concealed one, and the plaintiffs. without any want of reasonable diligence, became aware of the

After the purchase, the charge and management of the lands were left wholly in McLean's hands, and Miss McKenzie had never received any rents or exercised any rights of ownership except that she agreed to a suggestion that her cousin, McLean's son, made to her seven facts only about 18 months beor eight years before, that she fore the commencement of the should rent them to him. But action.

(3) That the defendant Mc-| of the property may not be in the Lean, in view of the evidence words set forth in section 3 or given by himself at the trial was in words to the like effect. not entitled to claim any part of the lands as exempt from seizure and sale. Mechants' Bank v. McKenzie ..

19

Held, also, following Stephens v. McArthur, (1890) 6 M. R. 496, notwithstanding the decisions of the Ontario Court of Appeal in Johnson v. Hope, (1889) 2. Preference Assignments 17 A. R. 10, and Ashley v. Act, R. S. M., c. 7, s. 33—63 & Brown, (1890) Id. 500, that it 64 Vic. (M.), c. 3, s. 1—Trust is not necessary to show notice assignment made to a creditor-to the transferee of the debtor's Pressure-Creditor's knowledge insolvent condition; but that, in of the debtor's insolvency.] any case, if the transferee had Under section 33 of The Assign- such a knowledge of the debtor's ments Act, R. S. M., c. 7, a financial position that an ordinmortgage given by a debtor to a ary business man would concreditor to secure his claim may clude from it that the debtor be set aside as a preference al-was unable to meet his liabilities, though it has been obtained by constructive notice of the insolpressure and was given by the vency should be imputed to him. debtor, without any active desire to prefer the mortgagee to his other creditors, if the debtor knew or ought to have known that such would be the result of giving the mortgage.

National Bank of Australasia v. Morris, [1892] Á. C. 287, followed. Schwartz v. Winkler, 493

3. Purchase of land by debtor in name of another-EvidencePresumption.]

The plaintiff

When an assignment in trust claimed a declaration that a cerfor creditors is made to one of tain piece of land purchased the creditors of the assignor, the from the Dominion Government assignee may under section 39 of in the name of the defendant J. the Act bring an action to set was the property of his brother, fraudulent preference the defendant R., and should be without showing the acceptance sold to realize the plaintiff's reof the benefit of the assignment gistered judgment against R. by any other creditor or com- At the time of the purchase in munication of it to any other: 1888 R. was indebted to the Mackinnon v. Stewart, (1850) | plaintiff in a sum of over $1,800 1 Sim. N. S. 76; Siggers v. and to another person for over Evans, (1855) 5 E. & B. 367. $4,000, and it was shown that J. An assignment of property had never paid anything on the made by a debtor for the benefit land either for purchase money of his creditors generally is, by or taxes and had never received virtue of section 2 (a) of the anything by way of rents or proAct, an assignment under this fits; also that the money for the Act" although the description irst instalment had been ad

R. had paid the rest of the purchase money from the proceeds of the land, of which he had always enjoyed the use and occupation, and that the Crown Patent for the property was issued to J. in 1892 without his having applied for it.

Rule 742

vanced by another brother, that amended by 60 Vic. (M.),c. 4, Equitable Execu tion.]—1. Under Rules 741 and 742 of The Queen's Bench Act, 1895, as amended by 60 Vic., c. 4, the claim of the assured, under a policy of insurance against loss by fire which provides that the loss should not be payable until thirty days after the completion of the proofs of loss usually required, can not be attached by garnishing order before such completion, although the property insured has been burnt.

The defendants at their examination for discovery before the trial swore that the whole transaction was bona fide and that R. was J.'s agent throughout in respect of the property, but R. was not called as a witness for the defence. J., also, in a letter to R., written in 1889, had referred to the property as "your land." Held, that the proper conclusion upon the whole evidence was that the land was really R.'s property and had been purchased and held in J.'s name for the purpose of preventing creditors from realizing out of it, and that the plaintiff was entitled to the relief asked for.

Semble, that when a defendant who is in Court does not give evidence to support his case, the Judge is entitled to make every reasonable presumption against him: Barker v. Furlong, [1891] 2 Ch. 172, per Romer, J., at page 184. Miller v. McCuaig 220

Howell v. Metropolitan District Ry. Co., (1881) 19 Ch. D. 508, and Central Bank v. Ellis, (1893) 20 A. R. 364, followed.

Canada Cotton Co. v. Parma

lee, (1889) 13 P. R. 308, not fol

lowed.

2. The only kind of liability which may be attached under the above Rules is a purely pecuniary one and must be absolute and not dependent upon a condition which may or may not be fulfilled; and therefore, where a policy of fire insurance contained a condition giving an option to the company to replace the destroyed property instead of paying the insurance money, if they should so decide within a certain time, a garnishing order would be of no avail, if served before the expiration of that time, as an attachment of the insurance money, since it would not then be certain that any pecuniary liability would ever arise under the policy: Simpson v. Chuse, (1891) 14 P. R., per Osler, J. A., at p. 286.

3. The provision in the Rules (2) The claim of a creditor as to claims and demands which could be made available under equitable execution have not the effect of making such a liability subject to attachment thereunder. The Lake of the Woods Milling Co. v. Collin 154

INSURANCE.

omitted to print the part of the heading prescribed by section 4 Conditions-Varia- of the Act, "This policy is issued

any

Ottawa Agricultural, &c., Co., (1878) 25 U. C. C. P. 28; Sands V. Standard Insurance Co.,

(1879) 27 Gr. 167, and Ballagh

1. Fire tions from statutory conditions on the above statutory condi-The Fire Insurance Policy tions, with the following variaAct, R. S. M., c. 59 Proofs tions and additions," or of loss-Interest-Valuation of other words to the same effect. property.]-Defendants object- Held, following Sly v. The ed to the plaintiff's claim for loss of property insured under a policy of fire insurance issued by defendants on the ground that at the time of the loss a portion v. Royal Mutual Fire Insurance of plaintiff's note given for the Co., (1880) 5 A. R. 87, that the premium for the insurance was requirements of the statute were unpaid, and relied on a condition imperative, and that plaintiff was indorsed on the policy that the not bound by the condition on company should not be liable for which the defendant relied. any loss or damage that might The policy contained in the occur to the property mentioned body of it the words, "The comwhile any promissory note or pany is not responsible for loss obligation or part thereof given caused by prairie fires,” and defor the premium remained due fendants contended that, as and unpaid.

plaintiff had alleged the contract What purported to be the stat-of insurance to be an absolute utory conditions prescribed by one, he could not recover withThe Fire Insurance Policy Act, out an amendment setting up the R. S. M., c. 59, were printed on policy correctly and proof that the back of the policy, and fol- the loss was not caused by a lowing these, under the heading prairie fire. "Variations in Conditions," were several other conditions, including the one relied on by defendants, printed in ink of a different color but in type of apparently the same size as that of the statutory conditions and which the Judge held was not conspicuous type within the meaning of the Act.

The conditions printed on the policy also differed in several important particulars from the words found in the statute; and after the heading "Variations in Conditions," the Company had

Held, that such qualification or exception to the absolute contract of the company must be regarded as a condition of the insurance within the meaning of the Act, and that as it was not one of the statutory conditions it would be legal and binding on the assured only if it were indicated and set forth on the policy in the manner prescribed by the Act, which it was not, and in pleading the plaintiff might ignore it altogether as he had done.

The defendants also objected at the trial to the sufficiency of