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Judgment. Is there any substantial distinction between the clause HAGARTY in Russell v. Russell, 14 Ch. D. 471, and that before us? There the power was to dissolve by notice if the conduct of the business or its results were not to the satisfaction of the defendant. Here the appointment of the defendant as the absolute judge of the manner of the plaintiff's performance of duties seems, at least in my judgment, to vest as large a power in the latter case as in the former.

If we lay stress on the words "incapacity or breach of duty," then we ignore this large power and make what the defendant chose to consider amounted to either one or the other to depend on our approval or disapproval of the soundness of his view. I think we would thus defeat the plain language of the bargain.

After reviewing the evidence the learned trial Judge thus remarks:

"Now am I to say that when these facts come before the defendant, as to which minds may differ and upon which if I had to determine whether or not the plaintiff had neglected his duty I should require time for consideration— am I to say, when the plaintiff has constituted the defendant the absolute judge as to the manner in which he, the plaintiff, has performed his duties, that I am to constitute him a qualified judge, or a judge whose decision is to be subject to revision by me, and if I believe that these acts do not amount to a breach of duty I am to reverse his decision and say that he has erred in the judgment to which he has come? I have no doubt that it may be open to the observation that the defendant did not approach this adjudication with an unbiased mind, suspicions may have been engendered by false statements, by misapprehension of facts, by an irritation consequent upon the investment of money without a speedy return. It may be that all these things would not have led one to have chosen him for a judge under the circumstances, but it must be concluded that the plaintiff felt the difficulties of the position when he objected to the provisions of the clause, and when in view of the possibilities of his having

HAGARTY

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difficulty he chose to enter into that agreement, it is not Judgment. in my power, sitting here, to relieve him from its terms. I feel therefore it is not open for me upon these facts to declare that there has been no breach of duty on the part of the plaintiff, or that the defendant has acted fraudulently and has made use of this clause in order to get rid of the plaintiff because he has behind his action a determination to commit a fraud or do a wrong to the plaintiff."

My examination of the evidence leads me to agree in the view of the Judge who had both the parties and their witnesses before him.

The judgment in the Queen's Bench holds that it was incumbent on the defendant to shew satisfactorily that he exercised the power with entire good faith.

With much respect I must say that this construction would wholly destroy the provisions as to the defendant being the absolute judge of the matter. He certainly could not be so under this limitation.

It was perhaps not very unreasonable for a man so to insist when all the heavy expenses had to be borne by him and where he had bargained for exclusive control over everything.

The plaintiff remains entitled to all his reserved interests in the profits of the adventure, the conduct of which has been expressly left in the defendant, and he is entitled to an account on laying a proper foundation therefor.

For some reason, satisfactory I presume to himself, although unintelligible to me, the defendant has neither in his reasons of appeal nor in argument objected to the amount of the damages for dismissal or the basis on which they were awarded.

I understand that it is not disputed by my learned. brothers that the defendant could have dismissed the plaintiff after calling on him for explanation as to the matters complained of by the defendant, and after hearing his answer, if any, and that from that decision there would be no appeal.

In estimating the damages sustained by this dismissal,

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Judgment. the nature of the plaintiff's tenure of office, depending HAGARTY solely on the defendant's final judgment, would naturally be considered. If within a day, a week, or a month, of this irregular dismissal, he had it in his power to effect the same regularly, such a state of facts should, as I understand the law, have been considered. The plaintiff has been awarded the full amount of salary to the end of the two years.

The judgment below awards $2,350 in bulk for damages. Nothing appears as to a claim for board, nor was any construction put upon the fourth clause as to board. It has apparently been allowed for all the time, and no question raised as to its being confined to board when travelling.

It is a most singular assessment of damages, but as the defendant does not seem to have objected it cannot now be interfered with.

Appeal dismissed with costs,
HAGARTY, C.J.O., dissenting.

DAY V. DAY.

Fraudulent Conveyance-Intent to defeat creditors-Secret Trust-
Evidence-Pleading.

If a defendant wishes to set up in answer to an action to declare him a trustee of land the defence that the land was conveyed to him for a fraudulent purpose he must in his pleading specifically say so, and admit his own criminality in joining in a criminal act.

If the plaintiff can make out his case without disclosing the alleged fraud, the defendant will not be allowed to show, as a reason why the plaintiff should not recover, the fraud in which the defendant himself participated. Judgment of FERGUSON, J., reversed.

This was an appeal by the plaintiff from the judgment Statement. of FERGUSON, J.

One Solomon Day died intestate some time in the year 1841, leaving his widow and seven sons and one daughter surviving him. He was possessed of a number of farms, and the land in question in this action was his homestead or part of it. In his life time, he had given farms to his two eldest sons John and Isaac, but on his death all his

The land in question

lands descended to his eldest son John.
had never been patented, and there was a balance due
to the Crown. After the death of her husband, the widow,
apparently with the consent of all the family, made a
distribution of the farms among the sons, which had never
been disturbed or questioned by the heir-at-law, under
it the farm in question being allotted to the plaintiff, and
another farm to the defendant. No deeds appeared to
have been executed, but all parties took possession of their
respective allotments. The widow died in 1847. From the
time of this allotment up to the 5th of January, 1858, the
plaintiff occupied the land in question, personally for several
years, and for several years by tenants. The plain-
tiff's land had been allotted to him upon the understanding
that he was to pay the balance of purchase money due to
the Crown; and also apparently upon the further under-
standing that he should take care of his sister, who was
a widow with several children. Some time in 1857, the
plaintiff put his sister and her family in possession, and

21-VOL. XNII. A.R.

Statement. she was in possession in January, 1858, when the plaintiff

conveyed the land to the defendant, for an expressed consideration of $5,000. At the date of this deed the plaintiff was keeping an hotel in Brantford, and owed some debts for which he was being sued, and several judgments were about that time or soon after recovered against him, amounting altogether to $800 or $1,000.

The defendant admitted that there was no sale for $5,000 such as the deed expressed; that the $5,000 was never paid or intended to be paid, but that the property was to be held by him in trust for the plaintiff. After the making ́of the deed, the plaintiff remained in possession, according to the admission of the defendant, for three or four years at all events, and the evidence shewed that either by his sister and her family, whom he had put in possession, or by his tenants, the plaintiff remained in possession until the fall of 1872.

The defendant admitted that he was trustee for the plaintiff until 1873, but said that in that year he was embarrassed by executions arising out of a litigation in the interest of the plaintiff, and that the plaintiff told him he could take this property and use it, and that the plaintiff would have no demands on it. This was denied by the plaintiff, who said that the expenses and claims referred to were all paid by him or out of his property.

From 1873 to 1886 the defendant was in possession by his tenants, and there was no satisfactory evidence that he accounted to the plaintiff for any part of the rent during that time.

On the 2nd of May, 1885, the defendant made a lease of the property for two years, ending 26th January, 1887, to one Dennis Legacy, at an annual rent of $1,200. In October, 1886, the plaintiff got possession from Legacy, and had since been in occupation with his wife and family, and Legacy had removed from the place.

The plaintiff said Legacy gave up quiet possession and went away without any consideration, and this was corroborated by the plaintiff's wife. Legacy on the contrary said