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circumstances, and I think that any unfavourable infer- Judgment. ence to be drawn from them is rebutted by the fact that MACLENNAN the debts were all paid in a very short time: Jenkyn v. J.A. Vaughan, 3 Drew. at p. 425.

I am further of opinion that even if the evidence of an intent to defeat creditors had been clear, it ought not to have been admitted, that ground of defence not having been pleaded, and we are bound to disregard it: Jacker v. The International Cable Co., 5 Times L. R. 13.

The learned Judge seems to have been under the impression that it was pleaded, for he insisted that the plaintiff was bound to declare his financial position at the time of the assignment. The learned Judge's attention was not called to the absence of pleading to support the evidence; and I feel certain that if it had, he would have excluded the testimony and would not have given leave to set up the defence as being a furtherance of justice: Haigh v. Kaye, L. R. 7 Ch. 469.

At all events, no application to amend or to set up the defence of fraud was made, and the case comes to us without any such defence on the record, and we have to consider it in that state of the pleadings. In my judgment, we are not bound to give effect to a defence which is not pleaded.

How then does the case stand when the transaction is freed from the imputation of fraud? The defendant denies the trust in his defence, but this is done in a very cautious and qualified way; and it was still necessary for the plaintiff to prove it. This is done in the clearest manner out of the defendant's own mouth, but it is not proved by any writing, and the defendant pleads the Statute of Frauds. It may be questioned whether this defence is sufficiently pleaded: Pullen v. Snelus, 40 L. T. N. S. 363. But assuming that it is, I think it is no answer to the action. The cases of Childers v. Childers, 1 DeG. & J., 482; Lincoln v. Wright, 4 DeG. & J., 16; Davies v. Otty, 33 Beav. 540; Haigh v. Kaye, L. R. 7 Ch. 469; Booth v. Turle, L. R. 16 Eq. 182, shew that in the circumstances of this

Judgment. case, it is a fraud on the part of the defendant to endeavour MACLENNAN to keep this land, and that the Statute of Frauds is inapplicable.

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Even if the statute were applicable to such a case, the fact that the plaintiff, according to the admission of the defendant, remained in possession after the making of the deed for at least three or four years, opens the door to the admission of parol evidence, and thus allows the trust to be proved.

The case then resolves itself into one of trust, with this peculiarity, that the legal title was, and is, in the Crown; and the dealings of the parties and the action which has grown out of them, are all in relation to a merely equitable interest.

I think it quite clear that what took place in this family two or three years after the father's death, and now about forty years ago, whereby their father's lands were divided among his sons, each getting a farm, and the present plaintiff getting the land in question, gave to the present plaintiff a good equitable title to the land in question, subject to the purchase money due to the Crown. The defendant clearly never had any interest in it, and the eldest son, who alone could have questioned the arrangement, did not do so.

The title being thus an equitable one, what was the effect of the transaction of 1858, that is, the whole transaction, the writing and the verbal agreement or understanding of the parties? Where a person having the legal title, and also the beneficial interest in land, conveys it upon trust for himself, the legal and beneficial ownership or titles are separated; the legal title goes to the trustee, and the equitable and beneficial ownership remains in the settlor; but when a person who has not the legal title makes such a deed, it is simply of no effect to change the rights of the parties at law or in equity, and their rights remain just what they were before.

In this case the parol evidence does away with the whole effect of the deed of 1858, so far as it purports to

be a sale for value, and all that is left is the authority Judgment. given to the defendant to complete the purchase from the MACLENNAN Crown by paying the government what was due and obtaining the patent deed, which was to be for the benefit

of the plaintiff.

Beyond all question this is the position in which the matter stood until the beginning of 1873. The only circumstance that supports the defendant's contention is, that the tenants from 1873 to 1886 were put on the land by him, and paid their rents to him; and there is no evidence of any payment of or accounting for any of the rent to the plaintiff during that period. This is certainly a strange fact, but in my opinion it is not sufficient in the face of the plaintiff's positive denial to support a plea of abandonment on the part of the plaintiff without any valuable consideration either alleged or proved, of a property worth nearly $5,000.

Another defence set up by the defendant is the Statute of Limitations. The eighth paragraph of the defence just says the defendant claims the benefit of the Statute of Limitations. The defence nowhere states that the plaintiff has been out of possession, or that the defendant has been in possession for any particular time, nor does it indicate in any way what the facts or circumstances are which make the Statute of Limitations applicable. Looking at the statement of claim there are many ways in which it is conceivable one or other of the Statutes of Limitations might apply, and before effect could properly be given to this defence, I think it would be proper to require an amendment to be made so as to show how it is intended to be applied.

If, however, the statute should be regarded as well pleaded to the action on the ground of upwards of ten years having elapsed since the plaintiff went out of possession, I think there is more than one answer to this defence.

I am of opinion in the first place that by the transaction of 1858, the defendant became an express trustee for the plaintiff within the meaning of the 29th and 30th

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Judgment. sections of the statute, R. S. O. (1877,) ch. 108, and section MACLENNAN 17, (2) of the Judicature Act of 1881, which are the

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statutes which were applicable when the plaintiff obtained possession from Legacy and when this action was brought. The trust in this case, though by parol, was neither a resulting, an implied, nor a constructive trust. It rests upon the actual express agreement of the parties, and so in my opinion is an express trust, and is, therefore, not within the statute. See Darby on Limitations, 183; Petre v. Petre, 1 Drew. 371; Snell's Equity, 2nd ed., 48; Burdick v. Garrick, L. R. 5 Ch. 233; Banner v. Berridge, 18 Ch. D. 254; Sands to Thompson, 22 Ch. D. 614; Coyne v. Broddy, 13 O. R. 173, and S. C. 15 A. R. 159.

The defence of the Statute of Limitations is also excluded by the circumstance that the legal title is still in the Crown.

If it were necessary to decide the point, I also incline to think that the property in question having been purchased from the Crown, with a balance of purchase money still unpaid when the deed of 1858 was made, was not property within the statute, 13 Eliz. ch. 5, because it could not, as it clearly could not have been, taken in execution: May on Fraudulent Conveyances, 1st ed., 17, 23, 1 Story's Eq. Jur., 13th ed., secs. 367, 368; Sims v. Thomas, 12 A. & E. 536.

Upon the whole, I am of opinion, with great deference, that the appeal should be allowed with costs, and that judgment should be entered for the plaintiff with costs.

Appeal allowed with costs.

SINDEN V. BROWN.

Justice of the peace-Summary conviction-Fine-Distress-Part payment -Imprisonment--Notice of Action-R. S. C. ch. 178, secs. 60, 61, 62, 63, 64, 65, 66, 67—R. S. O. (1887) ch. 73, sec. 14.

A commitment for part of the sum adjudged by the conviction to be paid
is not authorized by the Summary Convictions Act, and is illegal.
The plaintiff was convicted under the Canada Temperance Act and was
adjudged to pay a fine and costs, to be levied by distress if not paid
forthwith, and in default of sufficient distress to be imprisoned &c. He
paid the costs but not the fine, and a distress warrant was issued against
him. Nothing being made under the distress a warrant of commitment
was issued under which he was imprisoned :-

Held, that the commitment was bad.

Trigerson v. Board of Police of Cobourg, 6 O. S. 405, approved and followed.

Held, however, that the magistrate having, in the honest belief that he was acting in the execution of his duty as such, issued the warrant of commitment after payment of the costs adjudged, was, though acting without jurisdiction, entitled to notice of action, and that, no notice having been given, the action failed.

Judgment of the Common Pleas Division, 17 0. R. 706, affirmed on other grounds.

THIS was an appeal from the judgment of the Common Statement. Pleas Division, reported 17 O. R. 706.

The plaintiff brought the action against the defendant, who was police magistrate for the town of Simcoe, to recover damages for malicious arrest and wrongful imprisonment. The plaintiff was convicted by the defendant on the 2nd of April, 1888, under the Canada Temperance Act, of selling liquor in violation of that Act, and was adjudged to pay a fine of $50, and $6.95 costs, to be levied by distress if not paid forthwith, and in default of sufficient distress to be imprisoned for thirty days unless the fine and costs and subsequent costs were sooner paid. The plaintiff paid the costs to the defendant on the 14th of April. On the 17th of April, a distress warrant was issued to levy the fine and costs, notwithstanding the fact that the costs had been paid, and the constable made his return that there was not sufficient distress. On the 30th of April a commitment was issued which recited the distress warrant and return of no sufficient distress in the usual form, and -—VOL. XVII. A.R.

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