providing for collection by distress on lands of residents, has no such provision. This is probably an oversight, as reference to 16 Vic. ch. 182, sec. 42, will show that the provision was intended to apply to all distress for taxes; but in the consolidation of the statutes in 1859 it became by separation of clauses attached to the clause as to non-residents only. This was apparently not observed when 32 Vic. ch. 36 was passed: see sec. 97; and as this Act repealed the former Assessment Act, I must now take it to be the law that such provision does not apply to distress except for taxes or rates on non-resident lands, although probably apart from 32 Vic. the consolidation would not have had that effect. I fear I must therefore hold that the claim for taxes was not superior to that under the execution. Power to levy by distress is given-see sec. 93, ch. 180 R. S. O.—but only of "the goods and chattels of the person who ought to pay the same, or of any goods or chattels in his possession." These goods were not in the possession of the tenant, and the omission of the proviso found in clause 95 leads to the conclusion that, as against the claim under the execution, the goods could not be said to be those of the tenant, if he be the person who ought to pay the rent; nor do I think the sheriff could be said to be the occupant of the premises within the remaining words of the section. See also sec. 107 of ch. 36 of 32 Vic., where the preferential lien of taxes is again declared, but is confined to land.

Had I come to a different conclusion, the difficulty as to the execution creditor not refusing to pay the taxes would still remain.

Mr. Holman objected that it did not sufficiently appear that the money had not been paid into Court by the sheriff. The advance against technical objections has been too marked and rapid to permit such an objection to prevail. My brother Galt, before whom the motion first came, on its return, when it was enlarged, stated that he would allow any formal evidence on that point to be supplied. I am quite satisfied on the evidence before me. I

wish for the sake of the sheriff there were a doubt on the point.

It was further objected that there was not a reasonable time after the interpleader order had been made a rule of Court within which to comply with its terms before this motion was made. Had there been any intention to comply with its terms, I would consider such objection on the question of costs. It is without substance, and fails.

It was again objected that this form of application was not the proper mode of procedure-that proceedings should be by action, citing Collins v. Cliff, 8 L. T. N. S. 466. In that case the Court refused an order for attachment where the sheriff handed over the goods to the assignee in Bankruptcy after the claimant had been barred by the interpleader order. The ground of decision was, that "as the title to the goods was in question, and as attachment only issued where there had been a clear disobedience and contempt of Court, which it was impossible to say the sheriff had been guilty of, there should be no attachment." The Judges were, of the Court of Exchequer, Pollock, C. B., Martin, Bramwell, and Channell, B.B. I have found a case, however, of Angell v. Baddeley, in L. R 3 Ex. D. 49, in which Bramwell, Brett, and Cotton, L.JJ., delivered judgment, and the opinion there was expressed as follows: Bramwell, L.J.: “If the plaintiff was likely to be prejudiced by the act of the sheriff, he should go to the Court or a Judge and claim the benefit of the interpleader orders, and call upon the sheriff to sell the goods." Brett, L.J.: “I am not prepared to say that the sheriff acted rightly in withdrawing from possession, or that he had any discretion in the matter. The sheriff had a discretion before he obtained the interpleader order, but after he had applied for an order in respect of each claimant, and had obtained a protection in certain terms, he was bound to obey the order. I am inclined to think that the sheriff might be attached for not obeying the order made at his own instance, but it is not necessary to decide that point." Cotton, L.J.: "I am not inclined to say that the sheriff has any right to withdraw

from possession and give up the goods; but it is not necessary to decide that point." It will be observed that Bramwell, L.J., was in the Court when both cases were decided.

In Clarke v. Farrell, 31 C. P. 584, the Court were of the opinion that the sale by the sheriff after the interpleader order was not under the writ, but under the order. Dent v. Basham, 9 Ex. 469, and Emerson v. Lashley, 2 Hy. Bl. 248, shew the opinion of the Court as to actions to enforce orders

In Dafoe v. Ruttan, 19 U. C. R. 334, such an action was brought apparently without objection, although, as it failed on other grounds, it perhaps does not assist in reaching a result. Henderson v. Wilde, 5 U. C. R. 585, cited by Mr. Aylesworth, is a direct authority in his favor. There Robinson, C. J.,says: "That the sheriff is liable to an attachment for selling the goods in direct violation of the interpleader order, there can be no doubt, and upon the return of the attachment it will be in the power of the Court to direct such a course to be taken as will indemnify the claimant for the inconvenience to which he has been subjected." The learned Chief Justice in that case uses the following language : "There can be no doubt that the sheriff was bound by the rule or order of interpleader made upon his own application," language almost identical with that used by Brett, L. J., in Angell v. Baddeley, more than a third of a century thereafter.

The order for a writ of attachment must go. I think I must follow the case of Henderson v. Wilde, and Angell v. Baddeley, in preference to Collins v. Cliff. Indeed, I think I would not be consulting the best interests of the sheriff (so far as I am at liberty to consider them, he being an officer of the Court seeking its protection), by sending him before a jury for trial, where, so far as I can see, the result would be adverse, and the damages probably doubled by the costs of the action. Moreover, I think this mode of procedure the most proper, as under it the Court can regulate the conduct of its officers. It seems to me that the sum the sheriff

should be called upon to pay, to relieve himself from the order I am compelled to grant, is the sum realized at the sale by the bailiff, less the usual fees, poundage and incidental expenses, as if the sale had been by his own officer. In case of dispute as to these they can be settled by the Master in Toronto. I am satisfied on the affidavits that the goods realized as much as if they had been sold by the sheriff. I am assuming, of course, that Slater's claim is equal to or greater than the amount thus realized. The sheriff must of course pay the costs of the motion; if he pay these sums within thirty days from the date of the order, the writ not to issue. If the sheriff desire to appeal from this order he may have a stay of issue of the writ by paying into Court or giving security to the satisfaction of the Master in Toronto in a sum sufficient to cover the amount above named, and costs.

Judgment accordingly.

43-VOL. VI O.R.

[QUEEN'S BENCH DIVISION.]

IN RE ARBITRATION BETWEEN THE ONTARIO AND QUEBEC RAILWAY COMPANY AND GEORGE TAYLOR.

Railway Company — Expropriation — Award — Compensation for possible damage by felling trees-Mode of estimating compensation-Damages — Sufficiency of notice.

The right of a railway company to cut down trees for six rods on each side of the railway under the Consolidated Railway Act 1879, sec. 7, subsec. 14, is entirely distinct from their right to expropriate land for the road. If compensation can be claimed for it, it must be distinctly demanded by the notice.

Held, therefore, that an award was bad in allowing compensation to the owner of lands expropriated for the damage that might accrue to the owner by the possible exercise of such right.

Quare, whether under the Consolidated Railway Act, 1879, more than the value of the land actually taken can be allowed, as the Act does not contain a section equivalent to sec. 7 of R. S. O., ch. 165, and sec. 5 of C. S. C. ch, 66, giving compensation for damages to lands injuriously affected.

Semble, that where a parcel of land is severed by the railway the actual value is the difference between the value of the land of which it forms part before the expropriation, and the value to the owner of the remainder after the expropriation.

Held, that the possible damages to bush land from greater exposure to winds and storms, and the greater liability to injury by fire by reason of the working of the railway, were contingencies too remote to be considered in estimating the amount of compensation where there were no buildings to be endangered.

The notice by the railway company included compensation "for such damages as you may sustain by reason or in consequence of the powers above mentioned."

Held, sufficient to allow the arbitrators to award damages resulting to the owner from the expropriation.

ON the 30th day of November, 1883, in Court, before Armour, J., Hector Cameron, Q.C., on behalf of the Ontario and Quebec Railway Company, obtained a rule nisi calling on George Taylor to shew cause why the award made between the parties, on the 12th day of September, 1883, should not be set aside, or the amount awarded reduced, or the award be referred back to the arbitrators with such directions as to the Court should seem proper, on the grounds that the arbitrators proceeded on an erroneous principle and exceeded their jurisdiction, and awarded on matters not within the submission, in this, that they allowed and awarded a sum for compensation for the