James Maclennan, Q. C., and R. E. Kingsford, for the defendant D. J. Rees. There is no ground on which the plaintiff should get any indemnity from D. J. Rees. If he paid more than he received, he was under no necessity to do so. This suit was brought without any good reason and officiously. The position taken by D. J. Rees, and which he was obliged to take is that the deed was a mistake; that it was entered into by the parties in ignorance of the law governing the matter. The question is simply what is the position of the property of the wife and children? It would have been much better to have brought this suit in Quebec. We submit the instrument is wholly void. The sum of it is merely a covenant between husband and wife. But the wife could not deal with the property, or covenant in respect to it, because it was not separate property. Then the husband joining makes no difference, because any attempt to interfere with the community property so as to change the relationship of the parties to it is void as shewn by the evidence. The husband and wife, living in Quebec, were bound by the law there, which is founded on a deep policy. They could not have dealt with the property in this manner at home; could the mere crossing the boundary, and coming into Ontario for a day or two enable them to do so? No case had been made of any misdealings by the husband with the property. All the circumstances surrounding the matter are in favour of Rees's contention. On the marriage both parties became domiciled in Quebec, and that has been their domicil ever since. On this part of the case we refer to Udny v. Udny, L. R. 1 Sc. App. pp. 441, 457; Sottomayor v. De Barros, L. R. 3 P. D. 5; Van Grutten v. Digby, 31 Beav. 561; Hicks v. Powell, L. R. 4 Ch. 741 ; Martin v. Martin, 2 R. and M. 507; Waterhouse v. Stansfield, 10 Ha. 254; Cammell v. Sewell, 5 H. and N. 728; Story's Conf. of Laws, 7th ed. secs. 130, 131, 138, 186, 187, 190-199 and 410; Phil. on International Law, 2nd ed. vol. 4, p. 313; Wharton's Conf. of Laws, 2nd ed. secs. 190-1; Wheaton's International Law, 2nd ed.

p. 119;

Westlake's International Law, 1880, secs. 30, 32. If the deed had been made in Quebec it would have been void for many reasons. Then though an infant can accept under the law in Quebec, nothing of the kind took place here. There was no acceptance by tutor or ancestor; and the wife could not accept for the minors because she was a donor; and no acceptance either by the husband or wife can be deduced from the deed. Then the promissory note in trust for Mrs. Rees is void on its face as all the witnesses agree. The transfer of shares again is void on its face as dealing with community property. The matter rests in fieri, and is only an agreement to do something contrary to the law of the domicil. The Court is asked to compel the defendant to do in Quebec what the law of Quebec forbids. As to the removal of the trustee, under the Lower Canada Law the father has the first right to be tutor. We refer to Wheaton's International Law, 2nd ed., pp. 125, 121; Savigny's Priv. Int. Law, sec. 19, p. 108: Frelix Priv. Int. Law, (ed. of 1866) p. 61; the Code, secs. 1308, 1309.

Donovan, for the defendants Anna M. Rees and Rachel Rees. We are indifferent whether the deed is maintained or avoided but as to the removal of the trustee, if either is removed, it should be the plaintiff, and that we desire. C. Moss, Q.C., for the infant defendants. The deed on its face is valid and binding according to our law. It is more than a contract; it is not in fieri. The thing is accomplished and done. See Lewin on Trusts, 7th ed., p. 72. Then was the property situated in Quebec? the bank stock was not. The case is one of a person out of his domicil, contracting about his property also out of his domicil, and in the same place as the owner. See the Banking Act 1871, sec. 19. As the stock can only be dealt with at a particular place; that is the place where it exists: Attorney General v. Alexander, L. R. 10 Ex. 20; see also Banking Act of 1871, sec. 25. Then the note representing money was made in Toronto, and not made payable in any particular place. Hence it was payable 83-VOL. V O.R.

here. If the property and the parties to the transfer are in the jurisdiction, the transfer will be good anywhere: Foote's Priv. Int. Law, p. 182; Peninsular and Oriental Steamship Co. v. Shand, 3 Moo. P. C. N. S. pp. 272, 290. Then as to the Quebec law, the wife is the only one as to whom the husband is incapacitated from making a gift of the community property: Code sec. 1292. The gifts to himself and to his children are good, and the transaction could have been entered into in Quebec. Foote's Priv. Int. Law, at p. 275, shows that formalities not in themselves essential to the contract, need not have been complied with, when it is sought to enforce the contract in another country. Formal modes of evidencing the contract can be disregarded altogether. It is not correct to say the wife was the donor: the husband was donor, and his wife accepted for the infants: see Code L. C. sects, 760, 788. With us the communication of the trust to any of the cestuis que trust makes the document final: Spooner v. Jones, 3 Ch. Ch. 481. The transaction in question here, even if regarded as it would be regarded in Quebec Courts, must be considered to enure to the benefit of the infants, having regard to the fact that this is the forum. There is no question of specific performances in the case, but the defendant D. J. Rees undertakes to show the document is invalid; and as to the complaint that the question should have been litigated in Quebec, the answer is that he it was who has raised the question here. The property and fund are within the jurisdiction of this Court. D. J. Rees asks that the wards of this Court shall be deprived of the benefit of the trusts, when he has declared over his own seal that they are entitled to it, which declaration he made in this province. See Grant v. Eddy, 21 Gr. 45. There being a valid declaration of the trust, the Court can do nothing but execute it. As to costs, the infants costs must be paid, and in any event the costs should not be paid out of the corpus of the estate.

G. Morphy, who also appeared for the infants, as well as for the plaintiff. There is sufficient evidence of the trust,

even if the deed were set aside. But if there is anything to enable the Court to see that this a trust in favour of the children it must be executed. The Court must take care of the infants. The defendant D. J. Rees has confirmed the matter by his acts and delay in coming to the Court. D. J. Rees shews no equity entitling him to relief from the deed. As to costs, the commission which has taken place was unnecessary, and as it was occasioned by D. J. Rees' answer, the costs of it should be paid by him. I refer to Anderson v. Abbott, 23 Beav. 457; Bigelow on Estoppel, 2nd ed., p. 433 (foot-note); Story on Eq. Pleading, 8th ed., sec. 892; Dan. Ch. Prac., 5th ed., pp. 345, 1272–6, 1281-2; Story's Eq. Jurisp., secs. 95, 1059, 1352; Story's Conf. of Laws, secs. 241, 273, 276, 278, 279, 282, 284, 327, 383, 384; Wharton's Conf. of Laws, secs. 297, 307, 340, 342, 345 359, 388, 429; Westlake, Intern. Law, 1858 ed., secs. 295, 229a; Chitty on Cont., 8th ed., pp. 92, 364, 377; Wheaton's Intern. Law, 2nd ed., p. 121; Parson's on Cont., 7th ed., vol. 2, p. 507, 570, 571, 574; Addison on Cont., 7th ed., p. 240; Bentley v. McKay, 15 Beav., pp. 12, 20; Lewin on Trusts, 3rd ed., p. 47, 49.

J. Maclennan, Q.C., in reply to Mr. Moss and Mr, Morphy. The infants can get no more than they would get if of full age. There is no such acknowledged trust as would enable the Court to decree a trust existing. The deed is in fieri, because there was no vested delivery of the property under the trusts. The transfers of the stock are still in Montreal, and the $4,000 in the business is also in Montreal. The deed in question is voluntary, and D. J. Rees may revoke it S. H. Blake, Q.C., for the plaintiff, in reply, referred to Broom's Legal Maxims, 7th ed., p. 541; 1 Wh. & Tud. L. C. 5th ed., p. 492; Hill on Trustees, 4th ed., p. 612; Hanchett v. Briscoe, 22 Beav. 496; In re Lush's Trusts, L. R. 4 Ch. 591.

March 7th, 1883. FERGUSON, J.-The defendants Dan John Rees and Anna Maria Rees were married in the City of Toronto in the month of February, 1859. The defendant D. J. Rees was then living and carrying on

business as a merchant in the city of Montreal, in the Province of Quebec. The defendant A. M. Rees was, up to the time of the marriage, living in Toronto with her mother and the family. It is beyond all doubt that at the time of the marriage the intention was that the defendants D. J. Rees and A. M. Rees should go to Montreal immediately to reside, and have their home there. This they did, and lived together there until a comparatively recent period, when unhappy differences arose between them. There is a number of children of the marriage.

The plaintiff is a brother of the defendant A. M. Rees. At the time of her marriage the defendant A. M. Rees received in cash from her mother the sum of $4,000, which went into the commercial business of her husband. She afterwards received the respective sums of $4,000 and $2,000, which were laid out in the purchase of bank stock, the stock being held in the name of the defendant D. J. Rees in trust; and it appears that the defendant A. M. Rees received also household furniture, &c., amounting to or of the value of $2,000. Up to the time of the execution of the indenture to be mentioned hereafter the dividends upon the bank stock were accumulated by applying them in the purchase of more stock, and the amount of the stock is said to be, at par value, $9,000. The stock is stock of the Ontario Bank, the head office of which is in the city of Toronto. It was formerly at the town of Bowmanville, in Ontario, as I understand from the evidence.

At the time of the execution of the indenture mentioned before, the defendant A. M. Rees was temporarily residing at the Queen's Hotel, in Toronto. This was owing to some misunderstanding between her and her husband, and some other matters which I think need not be mentioned here. On March 3rd, 1875, an indenture was executed in the City of Toronto between the defendant Anna Maria Rees of the first part, and the plaintiff and the defendant D. J. Rees of the second part, whereby after shortly recit