on these boards; and on the 5th June 1847, Mr. Pegley, an officer in that Department, wrote to him as follows: “In reply to your request to be permitted to raise the water in Lake Scugog one foot higher than last year during the season of low water, I am directed by the Commissioner to state that you may do so, provided it will not subject the department to claim for damages from individuals owning property in the vicinity of the lake, and that you do the work at your own expense. Should the Department from any cause find it necessary to lower the water to its former level you will be required to remove any planking or timber work which you may have put on without remuneration for either labor or material."

In pursuance of this permission Mr. Bigelow put on the bracket boards in that year 1847, and my conclusion, from the evidence of numerous witnesses, often conflicting in their statements, is, that these boards were for many years subsequent to 1847 and to 1852 placed on the dam in such a way as to raise the water one foot during the season of low water, and that they were so placed in the years 1851 and 1852.

The plaintiffs contended that this permission not being under seal was not binding on the Crown; that it was, at most, but a license, and was revoked by the granting of the land to the plaintiffs; and that the boards were not shown to have been on at the date of the grant.

I do not think it of importance to inquire whether the license was binding upon the Crown or not, for the question is, how was the water at the time of the contract with the Crown, as it was the land then covered by the water that was reserved.

If there had been a simple grant of the lot to the plaintiffs it may be assumed, rightly or wrongly, that it would have revoked the license; but it is not a grant of the lot without more, for there is the reservation, and what I have to ascertain is, the extent of the reservation, and that at the date of the letter to the Commisioner of Crown Lands of the 13th of May, 1851, for the patent must be assumed

88-VOL XIII. O.R

to have been issued in pursuance of that letter which accepted the plaintiffs' offer for the whole lot.

It has been held in Campbell v. Young, 18 Gr. 97, that the use of bracket boards on a mill is such an easement as the Statute of Limitations will protect that it is not necessary they should be on for the whole time, but only when the water is low. The license was a permission to use them, and they had been so used for four or five years before the grant without complaint by the plaintiffs, and the reservation should therefore be construed as a reservation of the land covered by the waters as backed by the dam with the bracket boards on.

The evidence shewed that the boards were usually placed so as to intercept the water in May or June, and were I to have to determine if they were in that position on the 13th May, 1851, I would, under the evidence, hold that they were. But it does not seem to me necessary to decide that point, for if they were not on it was because the water was then so high as not to require them, and the reservation would be of land covered by water as high as the bracket boards would have raised it in the dry season. Whether the boards were on or off, therefore, the plaintiffs fail to shew any title to the four acres now in question.

The dam was a government work, built for the purpose of improving the navigation of the Scugog, and hence the necessity for applying to the Public Works Department for permission to raise the water.

I think the action fails, and judgment will be for the defendants, with costs.

I must express my regret that there should have been such a costly litigation, involving the examination of many witnesses, and employing five or six learned gentlemen, as to the right to property which at the outside could not have been worth $40 an acre, or $160 altogether.

Judgment for defendants, with costs.

[CHANCERY DIVISION.]

MCGUIN V. FRETTS.

Receiver-Right of action-Adding party-Amendment.

A receiver has no right to sue in his own name for a debt due to the person or corporation whose assets he has been appointed to receive; nor can that right be conferred on him by order. But where by an ex parte order made in the action in which the plaintiff was appointed receiver, he was authorized to bring actions in his own name for the collection of debts due to a certain Grange, and brought this action pursuant thereto, it was

Held, that an amendment should be made adding the Grange as co-plaintiffs without security being given for their costs, they being insolvent. If there were no person in whose name the action could be brought, there would perhaps be jurisdiction to direct it to be brought in the

name of the receiver.

THIS was an appeal to the Divisional Court by the plaintiff from the judgment of Armour, J., at the trial at Belleville, dismissing the action upon the ground that the Plaintiff had no right to sue in his own name for a debt

d ue to the Lennox and Addington Division Grange of the Patrons of Husbandry, No. 19, of which he had been appointed receiver, and refusing an amendment applied for at the trial adding the Grange as plaintiffs. In the action of Snider v. The Lennox and Addington Grange, a decree was made for the winding-up of the Grange, and appointing the plaintiff receiver; and subsequently on 1st March, 1886, an ex parte order was made by the Masterin-Chambers authorizing the receiver to commence and prosecute actions in his own name against all persons found by the Master's report to be indebted to the Grange, and he began this action accordingly.

The objection to the plaintiff's status was taken in the stateinent of defence, and again at the opening of the trial, but it was not pressed till the plaintiff had closed his case, when after argument Armour, J., allowed the objection. and refused the amendment.

The appeal was heard on the 25th of February, 1887.

Reeve, Q. C., for the appellant. On the general question whether the receiver ought to sue in his own name the authorities are conflicting, but there is no case which shews that the Court cannot authorize the receiver to sue in his own name. The onus is on the defendant to shew that the Court had no jurisdiction to direct that the receiver should sue in his own name. The authorities on the general question are: Ex parte Harris, 2 Ch. D. 423 ; Hills v. Reeves, 31 W. R. 209; Davis v. Gray, 16 Wall. S. C. U. S. 203; Gill v. Baylis, 72 Miss. 424; Hardwick v. Hook, 8 Georgia 354; Manlove v. Burger, 38 Ind. 211; Lathrop v. Knapp, 37 Wis. 308; High on Receivers, 2nd ed. pp. 174-7; Kerr on Receivers, p. 157.

On the question of amendment the learned Judge thought he had no power at the trial to substitute one plaintiff for another. The amendment sought was not so much that as an amendment of the description of the plaintiff by adding the name of the Grange, and stating that the plaintiff is appointed receiver for it. I cite the following as authorities on the question of amendment: Lord Bolingbroke v. Townsend, L. R. 8 C. P. 645; National Bank v. Hamburger, 2 H. & C. 333; Mills v. Scott, L. R. 8 Q. B. 496; Trustees of Methodist Church v. Grewer, 23 C. P. 533; McCleneghan v. Gray, 4 O. R. 329 ; Clowes v. Hilliard, 4 Ch. D. 413; Duckett v. Gover, 6 Ch. D. 82; Val de Travers Co. v. London Tramway Co., W. N. 1879, p. 46; 48 L. J. Q. B. 312; Broder v. Saillard, 2 Ch. D. 692; House Property Investment Co. v. H. P. Horse Nail Co., 29 Ch. D. 190; Rule 90, O. J. A.

Moss, Q. C., and Deroche, for the respondent. The objection was made in the statement of defence and the plaintiff might have amended at that stage. The Judge at the trial intimated his opinion before the evidence was gone into. In the face of these facts the application to amend made after the close of the plaintiff's case and after the Judge had ruled against the status of the plaintiff was too late. The defendant took the objection in the only possible way; he could not have moved to

stay the action; he was not a party to the original suit and had no opportunity of moving against the order authorizing the receiver to bring the action.

The plaintiff has no right under the order, or otherwise, to bring the action in his own name. The defendant is a stranger to the plaintiff, and had nothing to do with the proceedings in the former suit, in which orders were made behind his back. If a cause of action is vested in one person, can another person have that cause of action vested in him by a simple order of the Court directing him to sue? The question is, has the receiver a vested cause of action against the defendant? They referred to Campbell v. Lepan, 19 C. P. 31; Wood v. McAlpine, 1 A. R. 234. If the Grange had been the plaintiffs in this action we should have filed a counter-claim against them for negligence, which we cannot do against the present plaintiff. As to whether, in the absence of an enabling statute, a receiver can sue in his own name, see High on Receivers, p. 170, sec. 209; Zeager v. Wallace, 44 Penn. 294; Pitt v. Snowden, 3 Atk. 750. Even where a receiver has been appointed by way of equitable execution, he will not receive the conduct of the action: In re Hopkins, 19 Ch. D. 61. The receiver is only an officer of the Court, and when he acts must do so in the name of the person he represents. There is no privity between the defendant and the receiver here, and none can be created except by assignment or vesting order. Whether or not there was jurisdiction in the Court to make the order authorizing the receiver to sue in his own name, it does not bind the defendant nor transfer the cause of action. The defendant is entitled to all the rights against the Grange which he Iwould have had if the order had not been made.

As to the amendment asked the application was not only too late, but under the circumstances it should not be made at any stage: Walcott v. Lyons, 29 Ch. D. 584; New Westminster v. Hannah, 24 W. R. 899; Dalton v. Guardians of S. Mary's, 47 L. T. N. S. 349; Hathaway v. Doig, 6 A. R. 264; Fryan v. National Provident Institute, 16 Q. B. D. 678.