277, L.R. 4 Ch. 748. See Chapman V. Michaelson (1908), 78 L.J.C. 272, [1909] 1 Ch. 238. A bond or covenant or other security subsequently given for a debt originating in an illegal consideration or transaction, or for a prior security for such debt, is vitiated by the same illegality: Fisher v. Bridges (1854), 23 L.J.Q.B. 276, 3 E. & B. 642; as a bill given to a broker for his charges in effecting an illegal insurance: Ex p. Mather (1797), 3 Ves. 373; a bill in renewal of a bill given for a gaming debt: Wynne v. Callander (1826), 1 Russ. 293; a security given to a compounding creditor by way of illegal performance: Geere v. Mare (1863), 33 L.J. Ex. 50, 2 H. & C. 339; a bond given to the holder of a note which had been given for an illegal purpose and indorsed to the holder when overdue: Amory v. Meryweather (1824), 2 L.J.O.S.K.B. 111, 2 B. & C. 573.

A guarantee of an illegal debt is illegal and void; but a guarantee of a debt which is merely void and not illegal, as the loan of a company in excess of their borrowing powers, is valid: Yorkshire Waggon Co. v. Maclure (1881), 51 L.J.C. 253, 19 Ch.D. 478. See Re Coltman (1881), 51 L.J.C. 3, 19 Ch.D. 64.

The effect of illegality is the same, in whatever form the contract is framed, whether in the form of a simple contract or of a contract under seal, or of a bond with an illegal condition: Co. Lit. 206b; Duvergier v. Fellows (1828), 7 L.J.O.S. C.P. 15, 5 Bing. 248, (1830), 8 L.J.O.S. K.B. 270, 10 B. & C. 826, (1832), 1 Cl. & F. 45, and though the contract is apparently valid in form and matter, extrinsic evidence is always admissible in variance of or in addition to the contract in order to shew that the transaction is illegal and therefore void, even in the case of a covenant or contract under seal: Collins v. Blantern (1767), 2 Wils. 341, 1 Sm. L.C. 355. The facts shewing illegality, either by statute or common law, must be pleaded; they cannot be proved under a bare denial of the contract: Ord. XIX. rr. 15, 20. See Willis V. Lovick (1901), 70 L.J.K.B. 656, [1901] 2 K.B. 195; but where the illegality appears from the plaintiff's own evidence (as in the case of a criminal conspiracy to create a market by fictitious dealings in shares) it is the duty of the Court to take judicial notice of the fact, and to give judg ment for the defendant, although the illegality is not raised by the pleadings: Scott v. Brown, [1892] 2 Q.B. 724, 61 L.J.Q.B. 738. The Courts will grant discovery in aid of the defence of illegality unless there are special circumstances of exemption: Benyon v. Nettlefold (1850), 20 L.J.C. 186, 3 Mac. & G. 94.

Money paid in consideration of an executory contract or purpose which is illegal, upon repudiation of the transaction may be recovered back, as upon a total failure of consideration; but it cannot be reclaimed after the happening of the event: Taylor v. Bowers (1876), 46 L.J.Q.B. 39, 1 Q.B.D. 291; Wilson v. Strugnell (1881), 7 Q.B.D. 548, 50 L.J.M.C. 145; Hermann v. Charlesworth (1905), 74 L.J.K.B. 620, [1905] 2 K.B. 123. Money deposited with a stakeholder upon a wagering contract may be reclaimed and recovered back after the event, at any time before the money

has been actually paid over; but not if the stakeholder has paid it over according to the event before his authority is revoked: Howson v. Hancock (1800), 8 T.R. 575.

The party seeking to recover money paid upon an illegal contract or purpose must give notice that he repudiates the transaction before it is executed, and reclaim the money, in order to entitle him to maintain an action; and merely bringing the action is not sufficient notice: Busk v. Walsh (1812), 4 Taunt. 290; Palyart v. Leckie (1817), 6 M. & S. 290. After the execution of the illegal contract or purpose, money paid under it, whether as the consideration or in performance of the promise, cannot be recovered back; for the parties are then equally delinquent, and the rule applies that "in pari delicto melior est conditio possidentis”: Taylor v. Chester (1869), 38 L.J.Q.B. 227, L.R. 4 Q.B. 313. The rule applies where the illegal purpose has been executed in a material part, though it remains unexecuted in another material part: Kearley v. Thomson (1890), 59 L.J.Q.B. 288, 24 Q.B.D. 742; and where it has been executed as far as possible, and further execution has become impossible: Re Great Berlin Steamboat Co. (1884), 54 L.J.C. 68, 26 Ch.D. 616.

The true test for determining whether or not the plaintiff and the defendant were in pari delicto is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party: Simpson v. Bloss (1816), 7 Taunt. 246; Taylor v. Bowers (1876), 46 L.J.Q.B. 39, 1 Q.B.D. 291; Hyams v. Stuart King (1908), 77 L.J.K.B. 796, [1908] 2 K.B. 696. But in the case of purely equitable remedies, the Court may refuse its assistance to a particeps criminis, who does not rely upon any part of the illegal transaction, as a person invoking the jurisdiction of the Court of Chancery must come into Court with clean hands: Ayerst v. Jenkins (1873), 42 L.J.C. 690, L.R. 16 Eq. 27. Accordingly money lost fairly at illegal gaming or wagering, and paid, cannot be recovered back: Howson v. Hancock (1800), 8 T.R. 575; Thistlewood v. Cracroft (1813), 1 M. & S. 500; Dufour v. Ackland (1830), 9 L.J.O.S. K.B. 3. So with money paid or accounted for as the price of goods sold and delivered under an illegal contract of sale: Owens v. Denton (1835), 4 L.J. Ex. 68, 1 Cr. M. & R. 711. And money paid to induce a person to become bail for another cannot be recovered back, after the purpose is completed by acceptance of the bail, whether the principal makes default or not: Herman v. Jeuchner (1885), 54 L.J.Q.B. 340, 15 Q.B.D. 561. See Consolidated Exploration Co. v. Musgrave (1899), 69 L.J.C. 11, [1900] 1 Ch. 37, which is perhaps to be supported upon the ground that the transfer of shares was ultra vires, and the transferee a trustee for the company.

Where money was deposited with a company's banker for the purpose of giving the company a fictitious credit, it was held that after an order was made for winding up the company the money could not be recovered back: Re Great Berlin Steamboat Co. (1884), 54 L.J.C. 68, 26 Ch.D. 616. Upon this principle a premium paid upon an illegal insurance, after the

risk has determined, is not recoverable. though the underwriter cannot be compelled to pay the loss: Marine Insce. Act, 1906, sec. 84; Vandyck v. Hewett (1800), 1 East 97; Allkins v. Jupe (1877), 46 L.J.C.P 824, 2 C.P.D. 375; Harse v. Pearl Life Assce. (1904), 73 L.J.K.B. 373, [1904] 1 K.B. 558. But if the premium in such case has been paid or secured by a bill only, there is no remedy on the bill, being the security for an illegal debt: Ex p. Mather (1797), 3 Ves. 373. So an underwriter having paid the loss under an illegal insurance cannot recover it back; and though he has only paid it to the broker of the insured, who has not paid it over: Tenant v. Elliott (1797), 1 B. & P. 3.

Upon the same principle goods or other property delivered under an illegal agreement or for an illegal purpose, may be reclaimed and recovered back so long as the agreement or purpose remains unexecuted. Where goods were delivered under a fictitious sale for the purpose of protecting the possession whilst the owner compounded with his creditors, it was held that he might repudiate the transaction before the composition had been carried out, and recover the goods from the pretended buyer, or from a subvendee to whom they had been delivered with notice of the illegal transaction: Taylor v. Bowers (1876), 46 L.J.Q.B. 39, 1 Q.B.D. 291.

But if the contract is executed and a property either general or special has passed thereby, the property must remain; and upon this ground a lien for work done upon a chattel, though under an illegal contract, is valid; Scarfe v. Morgan (1838), 7 L.J. Ex. 324, 4 M. & W. 270. Upon the same principle a conveyance of property executed upon trust for the absolute use of a woman, cannot be set aside upon the ground that it was Executed in consideration of illicit cohabitation: Ayerst v. Jenkins (1873), 40 L.J.C. 690, L.R. 16 Eq. 275. See Phillpotts v. Phillpotts (1850), 20 L.J.C.P. 11, 10 C.B. 85.

No claim can be allowed for compensation or contribution between persons engaged in an illegal transaction: Jessel, M.R., Sykes v. Beadon, 48 L.J.C. 522, 11 Ch.D. 197. Where two persons had joined in an illegal wager which they won, and one of them advanced to the other his share of the winnings, which the loser failed to pay, it was held that he could not recover back the sum so advanced, because he could not maintain such claim except through the illegal contract: Simpson v. Bloss (1816), 7 Taunt. 246; Leake on Contracts, 6th ed., 569.

An exception to the rule, that money paid in execution of an illegal contract cannot be recovered back, is made where the party who paid the money acted under undue pressure or influence on the part of the receiver, and therefore was not in pari delicto with the latter: Lowry v. Bourdieu (1780), 2 Dougl. 468; Williams v. Bayley (1866), 35 L.J.C. 717, L.R. 1 H.L. 200; Jones v. Merionethshire Perm. Bg. Soc. (1891), 61 L.J.C. 138, (1892), 1 Ch. 173. And this rule has been applied to money extorted by an abuse of legal proceedings; as where a party paid a sum of money to obtain his release from an arrest under a colourable legal process: De Cadaval (Duke) v. Collins (1836), 5 L.J.K.B. 171, 4 A. & E. 858.

Another exception is, where a statute has been passed with the object of protecting a particular class of persons, the members of that class may recover payments made by them. Thus the fees of a sheriff are fixed by statute, and an overpayment may be recovered: Woodgate v. Knatchbull (1787), 2 T.R. 148, Dew v. Parsons (1819), 2 B. & A. 562. So money paid in excess of the legal interest allowed by the statutes against usury could be recovered back: Ashley v. Reynolds (1731), 2 Stra. 915; Bromley v. Holland (1802), 7 Ves. 3; as now is the case where a moneylender charges a higher rate of interest than the Court sanctions in an application under the Moneylenders Act, 1900 (Imp.): Saunders v. Newbold (1904), 74 L.J.C. 120, (1905), 1 Ch. 260, affirmed sub nom. Samuel v. Newbold (1906), 75 L.J.C. 705; [1906] A.C. 461.

Province of Manitoba.

COURT OF APPEAL.

PETITT V. CANADIAN NORTHERN R. Co. (No. 2).

(11 D.L.R. 316.)

Howell, C.J.M., Perdue, and Cameron, JJ.A.]

[May 6.

Damages-Death-Pain and suffering-Accidental death-Recovery by decedent's family-Elements.

In an action by the widow and administratrix of the deceased for damages under the Manitoba Act, for compensation to families of persons killed by accident (R.S.M. 1902, ch. 31), the measure should be for the widow's pecuniary loss sustained because of the death, in a sum that will give her the physical comfort which she had at the time of her husband's death out of his labour earnings to be continued during the expectancy of life, subject to the accidents of health and employment; but not covering the physical and mental suffering of the deceased. nor the mental sufferings of the plaintiff for the loss of her husband.

Blake v. Midland, 18 Q.B. 93, and C.P.R. Co. v. Robinson, 14 Can. S.C.R. 105, referred to; Petitt v. Canadian Northern R. Co. (No. 1), 7 D.L.R. 645, varied.

Statutes Statutes adopted from England-Effect of English

decisions.

A statute practically copied from an English Act is taken subject to judicial decisions upon it given in England.

Trimble v. Hill, 5 A.C. 342, referred to; Petitt v. Canadian Northern Northern R. Co. (No. 1), 7 D.L.R. 645, varied,

Damages-Death-Loss of services-Accidental death-Recovery by decedent's family-Excessiveness.

$5,000 is an excessive recovery by a surviving wife under the Manitoba Act (R.S.M. ch. 31) for accidental death of her husband, and the recovery should be reduced to $3,000, where he was 65 years old and earned only $45 monthly, and she was 57 years old, though he was apparently a strong, healthy man.

Rowley v. London, L.R. 8 Ex. 221, and Lamonde v. G.T.R. Co., 16 O.L.R. 365, referred to; Petitt v. Canadian Northern R. Co. (No. 1), 7 D.L.R. 645, varied.

0. H. Clark, K.C., for defendants. W. H. Trueman, for plaintiff.

Province of Saskatchewan.

SUPREME COURT.

RE JOHN P. FRENCH.

(11 D.L.R. 379.)

Haultain, C.J., Newlands, and Lamont, JJ.]

[April 10.

Land titles (Torrens system) - First registration-Failure to establish legal or equitable title.

Held, 1. Under the Land Titles Act,, R.S.S. 1909, ch. 41, an applicant is not entitled to be registered as owner where he fails to establish that he has any estate either legal or equitable in the land in question.

2. In Saskatchewan, a Master of Titles has no jurisdiction, on a reference to him by a registrar, to pass upon and direct the registration of a title which depends for its validity solely on the application of equitable doctrines, since a purely equitable claim not evidenced by any document cannot be made effective until a Court of competent jurisdiction has declared the claimant entitled to an interest in the land.

William Beattie, for appellant. A. E. Doak, for respondent.