The appellant denied all this waste and fraud, and maintained that she had a right to give her husband a power of attorney.

The evidence is very voluminous and in many parts of it rather difficult to be understood.

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With regard to the first point respondent relies on these words: "And it is furthermore my will and wish that neither of the "husbands of any of my said daughters, nor any of my daughters' future husbands shall "have any power over, control or interference "in any manner with the foregoing devise "and bequest to them, but shall be as abso"lutely free from such power, control or "interference as if they had remained un"married and single."

We do not think that the interpretation to be put on that clause is that the wife shall not be aided in her administration by her husband, but that the husband shall not have the control of his wife's share of the estate.

Before proceeding to examine the evidence it is necessary to examine a grievance complained of by appellant. She complains that the testimony of her husband should not have been excluded, and that it was competent to the Court, to allow the husband to be so examined. The appellant relies on the art. 252 C. C. P. and on 35 Vic. c. 6, sec. 9. We need not enter upon this question in the present case, for the judge has not permitted the introduction of this evidence, and we do not think that under the circumstances it would be our duty, even if we had the power, to send back the record in order to allow Dr. Thayer to be examined. It is evident from his wife's testimony that he is the party to blame, if blame there be, and allowing him to speak would simply be permitting him to disculpate himself under oath. It is unnecessary for us, therefore, to determine in the present case, whether appellant is strictly right in saying that the terms of the Act allow the wife to examine her husband as her witness if he be her agent. But the words of the statute are, "Whenever such examination shall be allowed, it shall be as unrestricted as would

as regards the admissibility of verbal evidence or otherwise." How far is the evidence of the other consort unrestricted? So far and no further can the husband, agent, be examined.

The evidence of Mrs. Thayer, covering twenty-one pages of the factum of respondent, is next to valueless. It confirms what the appellant does not seek to conceal, that she knows personally little or nothing of the affairs of the estate. Her husband manages everything with her consent, and if his administration is bad she is responsible. On one point her evidence is important, it is as to the ring given her by Mr. Decker. But we do not think this gift can be characterized as evidence of fraud. The acceptance of a present of this sort would require to be brought into connection with some sacrifice of the interests of the estate to warrant a Court in presuming it to be fraudulent.

The charge most insisted on at the argument was the transaction with Miss Cressy. It seems this person has been living in Dr. Thayer's house as 66 a lady friend" off and on for nearly nine years, it would seem almost all the time she has been in Canada. Who she is, how she came to be an inmate of Dr. Thayer's family, is surrounded with some mystery. They became acquainted, so far as we can learn, in an hotel, and her position in the family is not that of a servant. She receives no remuneration. It is not said that she is a boarder, but we are told she is a person of private means. One thing, however, is evident, she has been an inmate of Dr. Thayer's house for years, and while residing there on the 30th April, she leased from him a vacant lot of land for five years, on the condition that she should pay the taxes, that she should expend $600 on buildings on the property, that she should pay no rent for the first two years, and $50 a year for the last three. Within four days-on the 3rd May following-Miss Cressy re-leased these premises to Mr. Foley for five years for $500, and she got from him $250 cash in advance. She swears at first that she made the bargain with Foley herself, but being pressed, it turns out that Dr. Thayer opened communications between them with regard

to the re-lease. Foley is examined as a witness, and he tells us that he leased the premises from Dr. Thayer, and that he was to pay the rent to Miss Cressy; that it was about the middle of April negotiations with Thayer began, and it was not till fifteen days after he had leased the premises from Thayer that he ever saw Miss Cressy. He says: "I never saw her until the day I went and signed the lease at the notary's office, and I did not know who she was." Again he says, he supposed he was dealing with Dr. Thayer. "I did not know Miss Cressy." Until the day he signed the lease Dr. Thayer had not mentioned Miss Cressy's name to him, and he had not heard of her.

The appellant explains the transaction in this way. It is said that this property was producing no rent, that it was a charge to the estate, that the heirs could not agree among themselves as to borrowing money to build, and that therefore Dr. Thayer had resolved by getting Miss Cressy to enter into this lease to turn the property to account without borrowing. It is contended that the estate was relieved from taxation for five years, that it directly gained by rent $150, and that the building belonged to the estate at the end of the lease. It is also said that the estate could get back the property at any time by repaying to Miss Cressy what she had expended.

This is all very plausible, but it is not unanswerable. So long as Dr. Thayer manages the estate, there is no fear of the lease being broken, and if it were, it would only be on the repayment to Miss Cressy of what had been expended-not of $600. It is evident that the danger of the lease being broken in the interest of the estate was not contemplated as a possible contingency, for the lease to Foley was for two years positively, and for three years more at Foley's option. Two other curious pieces of evidence leaked out. The insurance of the new building was in Dr. Thayer's name, and he paid the assessments. This was at first attempted to be concealed or denied. It also appears that Foley had offered to build on the premises and to give $300 for a lease of five years. His sincerity in this respect is not to be

questioned, for he has actually agreed to give Miss Cressy a great deal more.

We therefore think that a bargain disadvantageous to the estate has been entered into designedly with the intention either of favouring Miss Cressy at the cost of the estate, or of allowing Dr. Thayer or his wife to gain an unfair advantage through a person interposée-Miss Cressy.

The Stearns and Murray story really includes the charge of having received two sums of money. It is said that in 1877 one Decker having failed, Stearns and Murray, who held the lease of the Albion Hotel with Decker, desired to hold the lease in their own names; that Thayer would not consent unless they gave him $500, and that they ultimately gave him $150 and discharged his bill at the hotel for $147.

The story is scarcely denied, but it is attempted to be proved by one of the partners, Stearns, that this was done to indemnify Dr. Thayer for the expense of coming out from England to settle difficulties as to this lease. Stearns denies this, and at any rate an expenditure of this sort should have appeared on the books.

The other transaction with Stearns and

Murray was two years later, when they wanted to renew their lease, and then they gave Thayer a cheque for $280 and $20 as a bonus for the lease. This again it is attempted to explain by saying that Thayer wanted $3,000 a year for the Albion, and that Kerby was willing to take $2,500; and that Thayer then said if Kerby was satisfied with $2,500 they might have it for that, but that he must be indemnified by getting $300. But it is evident a co-proprietor acting as agent, cannot make a bargain of that sort without the positive consent of the other proprietor.

A witness, Tuckwell, says that he and his partner Hart paid Thayer $500 to get a 12 years' lease of the premises they had of the estate at the rate of $1200 a year, and that subsequently Thayer got them to cancel their lease on receiving the $1200 they had paid for rent and bonus back again. It is contended on the part of respondent that this $1200 was all charged to the estate, but that the $500 was not credited to the estate. I have not been able to trace the whole of

this transaction satisfactorily so as to say that it is proved that the $1200 was charged to the estate. The fact is the record is very inconveniently made up, and several papers I wished to see so as to be able to speak of them from positive inspection, I could not find. One, a note, an important paper, has evidently not been sent up, and there is no copy of it. Nevertheless we think it established that Dr. Thayer got the $500 and did not account for it for about two years.

The defendant has established that in many respects, the estate was well and profitably managed by Dr. Thayer, and that the charge of waste, in the sense of doing useless work, is not made out. Neither do we find any payments have been improperly made. And here we may say that we should not feel disposed to set aside an executrix, daughter of the testator, herself a legatee, on the evidence of small payments which might have been avoided. Nor do we think that the payment of a commission to Dr. Thayer for appreciable services, such as collections, would be a ground for displacing the executrix selected by the testator.

But we think the judgment should be confirmed on account of the Cressy transaction, and the taking of bonuses on several occasions without accounting for them.

Judgment confirmed.

J. L. Morris for appellant.
Kerr & Carter for respondent.

SUPERIOR COURT.

SHERBROOKE, November 10, 1883.
Before BROOKS, J.

Ex parte EDSON, Petr. for certiorari, and THE
CORPORATION OF HATLEY, Respondents.
Quebec License Act of 1878-Sale of intoxica-
ting liquors-Art. 561, Municipal Code.

1. Although the local legislature has no authority to prohibit the sale of intoxicating liquors, it has power to make laws regulating the traffic therein, and to raise revenue for provincial purposes by restricting to license holders the right to sell liquor.

2. A municipal corporation has no power under art. 561 of the Municipal Code, to prohibit the sale of intoxicating liquors within the limits of the municipality.

The petitioner had been convicted and fined $75, on complaint of the respondents, for selling intoxicating liquors without a license.

PER CURIAM. The local legislature may not prohibit, but it may legislate exclusively upon this subject for the purpose of raising a revenue for provincial, local or municipal purposes. The Quebec License Act of 1878, 41 Vict. cap. 7, enacts that whoever sells intoxicating liquors in any organized territory in this Province, outside of Montreal, without a license to that effect still in force, shall be liable to a fine of $75. The Court holds this provision not ultra vires.

It is said that the Municipal Council of the Township of Hatley, under Sec. 561 of the Municipal Code, had prohibited the sale within their territory. They could not legally do this, and what the petitioner had to do was to get the necessary certificate, present it to the Council, and demand its confirmation; and, if refused, either proceed by mandamus to enforce its confirmation, or, on establishing such refusal, tender to the local government or to its license inspector the amount due for provincial revenue purposes, and demand the license; but the petitioner cannot come forward and say that he has a right to sell without any license and without the payment of any duty.

Petition rejected. J. L. Terrill and J. W. Merry for petitioner. W. White, Q. C., for respondents.

COUR SUPÉRIEURE,

SOREL, 4 octobre 1883.

Coram GILL, J.

BAZIN V. LACOUTURE, ès-qual. Procédure-Huissier-C. P. C. 74. JUGE:-Que la prohibition de l'Art. 74 du C. P. C. ne s'applique pas au cas où l'huissier qui a fait l'exploit d'assignation, a instrumenté contre ses parents ou alliés.

Le jugement est comme suit:

"La Cour ayant entendu la plaidoierie contradictoire des parties sur le mérite de l'exception à la forme ;