law as of right, can be held to justify them in selling the whole of the property covered by the warehouse receipt, amounting in value, it may be, to thousands of dollars, merely because there may be only hundreds due, or less even than a hundred, when the property is of such a nature that it is capable of division, as grain and lumber and bales and boxes of goods are.

The rule should be discharged.

GALT, J., concurred.

OSLER, J., took no part in the judgment, having been concerned in the case while at the bar.

Rule discharged.

MCCOLL ET UX. v. HIGGINS ET AL.

Highways-Contract with Dominion_Government-Necessity for cutting away highway-Specifications-Requirements of —Temporary bridge— Sufficiency of-Jurisdiction.

Under a contract made between defendants and the Government for the performance of certain work on the Welland Canal, a Government work, it being necessary to cut away the public highway, the specifications, in accordance with the Act 31 Vic. ch. 12, sec. 29, D., provided that before such highway was cut away or disturbed the defendants should provide another and satisfactory means for the public travel, and were to be held legally liable for keeping the crossing so that it could be safely used. The defendants under these powers erected a temporary bridge, being allowed by the Government $800 therefor, of which they did not expend more than half, although they paid something besides for the approach to the bridge. In an action by the plaintiffs for the alleged insufficiency of the bridge for its intended purpose in consequence of which the plaintiffs were injured, the jury were directed that the defendants were only required to erect a temporary bridge of the like nature which a municipality would need to make while a permanent bridge was being repaired or rebuilt. Held, that the direction was insufficient: that the jury should have been told that although a temporary bridge need not be constructed in the same manner, and with the same care and finish or materials as a permanent bridge, yet equally therewith it must be constructed and maintained so as to be a safe and strong roadway for the public travel; and they should be asked whether the bridge in question was of this character.

ACTION for injuries to the wife, and for damages sustained by the husband for injury done to his horses, waggon,

and harness, and for the loss of his wife's services, and for medical charges, by reason of his team and waggon, in which the plaintiffs were, falling from a bridge.

The declaration contained six counts. The first three counts placed the liability of the defendants to put up and maintain a sufficient bridge by reason of their contract to that effect which they entered into with Her Majesty, for the performance of certain work upon the Welland Canal.

The next three counts placed the liability of the defendants with respect to such bridge upon their common law liability, because they cut a way a portion of the highway so as to render it otherwise impassable.

The defendants pleaded:

To the whole declaration-1. Not guilty.

To the first count-2. That the defendants did provide, erect, build, and maintain a suitable bridge across the Welland Canal, and put up and maintain such fences as were required for the public safety, in accordance with the .terms of their contract with the Department of Public Works.

3. That by the terms and conditions of their contract with the Department of Public Works they were to erect such a bridge across the Welland Canal as might be accepted by the engineer in charge of the said works, and that they did in accordance with said contract erect and build a bridge across the said Welland Canal, which was approved of by the engineer in charge of the said works.

To each of the other five counts, the like special pleas were pleaded.

Issue :

The cause was tried before Patterson, J., with a jury, at St. Catharines, at the Spring Assizes of 1879.

The defendants were contractors under a contract with the Dominion Government for the performance of certain work at the Welland Canal.

The provisions of the specifications relating to this matter were as follows:

"Before the present public road is cut away, or in any

way disturbed, the contractor must provide, at his own cost and expense, another and satisfactory means for the public travel to pass, either by the formation of another road or the construction of a temporary bridge, or both, as may be found necessary; and he must put up and maintain all such fences as may be required for public safety. It being clearly and distinctly understood that he (the contractor) shall be held legally liable and responsible for keeping everything connected with the crossing in such a condition that it can be safely used during the whole time. that the bridge is in progress of construction."

There was evidence on both sides as to the safety and sufficiency of the bridge for general public use and travel.

The learned Judge directed the jury that the erection, being a temporary one in substitution of the former highway while the public work at the canal was in progress, the contractors for that work, and who had erected the bridge under the provisions of their agreement with the Crown, were bound only to have such a bridge which a municipality, whose bridge had been carried away, could be required to construct as a temporary erection while they were putting up their permanent bridge.

The plaintiffs' counsel contended that the jury should be told that it was the defendants' duty to provide a road or crossing such as was set out in the specifications, and to have asked the jury to say whether the defendants had provided such a road or crossing.

The jury found a verdict for the defendants.

In this term, May 21, 1879, J. A. Miller, obtained a rule calling on the defendants to shew cause why the verdict for the defendants should not be set aside, and a new trial had, for the alleged misdirection of the learned. Judge.

During the same term, May 31, 1879, Bethune, Q. C., shewed cause. There was no misdirection in telling the jury that the defendants were only required to provide a temporary structure of the like nature which a municipality

would be warranted in putting up while the permanent bridge was being repaired or rebuilt. The public roads and bridges of the Province are within the sole control of the local Legislature, and of the different municipalities and bodies in which they have been vested by the Legislature; and if the local Legislature by special Act or by general law declare what shall be a sufficient bridge or highway, it will be sufficient for the purpose of this action if the bridge or highway which may be in question is made in accordance with such local enactment, although it may not be constructed in such a manner as to be a compliance with the agreement between the contractor of a public work and the Dominion authorities. But if the learned Judge should have directed the jury in the words of the contract to say, whether the defendants had provided another and satisfactory means for the public travel to pass," &c.,"by the construction of the temporary bridge," and whether he had put up and maintained “all such fences as were required for public safety," the contractor being for the purposes of the argument assumed to be liable for keeping everything connected with the crossing in such a condition that it can be safely used during the whole time that the" (permanent) "bridge is in progress of construction," all that is just the kind of obligation which would rest upon a municipality under our local Acts, and there was no misdirection in putting the case in the manner in which it was submitted to the jury.

J. A. Miller, contra. The defendants' liability was by reason of their contract, as well as by the general law, and the case should have been left to the jury as it was affected by the contract, even if it were left in the other form as well. The defendants were paid far more for putting up a proper bridge than they expended upon it, and they said that with an outlay of $200 more than they had expended they could have put up a railing which could not have been forced off. There was clearly misdirection, and a new trial should be granted.

June 27, 1879. WILSON, C. J., delivered the judgment of the Court.

The defendants were contractors with the Dominion Government for the performance of certain work at the Welland Canal. That canal is a Government work. The Minister of Public Works has power to "discontinue or alter any part of a public road, where it is found to interfere with the proper line or site of any public works * *; but before discontinuing or altering such public road, he shall substitute another convenient road in lieu thereof": 31 Vic. ch. 12, sec. 29, D. It became necessary in the performance of the defendants' contract to cut away the then public road at that part where the defendants were doing their works, and therefore it was provided in the specifications that, "before the present public road is cut away, or in any way disturbed, the contractor must provide another and satisfactory means for the public travel to pass"; and the defendants were to be held "legally liable and responsible for keeping everything connected with the crossing in such a condition that it can be safely used," and they were allowed by the Government $800 for making the temporary bridge, and they did not expend upon the bridge more than about half that sum, although they paid something besides for the right of approach to the bridge. It was under these powers this bridge was put up. The bridge so constructed became a public highway, and it will continue to be such highway until its purpose has been answered by the construction and opening of the intended permanent bridge. That bridge is vested in Her Majesty. It is a bridge the Minister of Public Works for the Dominion had power to construct, or to authorize being constructed. The municipality in which it is cannot be liable for not keeping it in repair, because the municipality had not and has not any control over it. The municipal power and rights as to that bridge had been superseded by the Dominion intervention. The defendants under the Dominion authority and direction have built the bridge for the public travel, and in lieu of the former highway,