Majority
'Nov. 19.
BROSE SNOW, AND THOMAS B.
APPELLANTS; FLINT (DEFENDANTS) ......
.........
*May. 12.
JOSEPH R. KINNEY,
ASSIGNEE
UNDER
THE INSOLVENT
A0r OF
1875 AND AMENDING ACTS, OF THE
RESPONDENT. ESTATE AND EFFECTS OF THOMAS
B. FLINT, AN INSOLVENT (PLA.IN- TIFF)........ .............................. J
ON APPEAL FROM: THE SUPREME COURT OF NOVA SCOTIA. F., a ship-owner in Yarmouth, N. employed as his agents in Liverpool J. & Co., the defendant J. being a member of their firm, and as agents in New York he employed the firm of S. & B., of which the defendant S. was a member. In the course of his dealings with these agents he became indebted to both firms for acceptances by them of his drafts, made when he was in want of money, towards the payment of which they received the freights of his vessel and remittances in money. On one occasion he said that he would give to the Liverpool firm a mortgage on the " Tsernogora " or the " Magnolia " when they should require it, and in a subsequent conversation with a member of the firm he agreed to give such mortgage on certain conditions which were not carried out. He also promised the firm in New York to give them security in case anything happened, and mentioned as such security a mortgage on the " Tsernogora."
According to F.'s own statement he had sufficient property to pay his liabilities when these conversations took place.
A few weeks after these conversations took place, F. executed a mortgage of 1 shares of the "'Tsernogora " in favor of the defendants J. and S. and had the Eame recorded, and within thirty days thereafter a writ of *PRESENT-Sir W.
.7T attachment in insolvency was issued against him. The plain. tiff, who was appointed assignee of F.'s estate by his creditors, filed a bill to have the mortgage set aside, claiming that it was void under section 133 of the "Insolvent Act'of 1875." defendant J. did not answer the plaintiffs bill, and the other defendants denied that the mortgage was made in contempla tion of insolvency, and also claimed that as it was made under the provisions of the " Merchants' Shipping Act" (Imperial), it was not affected by the " Insolvent Act of 1875."
The judge in equity, before whom the cause was heard, made a decree in favor of the plaintiff and ordered tho mortgage to be set aside, and the Supreme Court of Nova Scotia dismissed an appeal from that judgment. On appeal to the Supreme Court of Canada, Held, affirming the judgment of the court below, Henry J. dissenting, that the promise to give security "in case anything should happen" could only mean "in case the party should go into insolvency," and that the transfer was void under section 133 of the " Insolvent Act of 1375."
Held, also, that the provisions of the "Merchants' Shipping Act" did not prevent the property in the ship passing to the assignee under the Insolvent Act.
APPEAL from a decision of the Supreme Court of Nova Scotia (1) affirming the judgment of the judge in equity. The facts of the case are fully reported in the judgments delivered by the court, and in the report of the case in the court below.
Pellon Q.C., and Gormully for the appellants, contended that the plaintiffs could not set aside the mortgage from Flint to Snow and Jones: 1st, because the mortgage was not executed in contemplation of insolvency or in violation of the Insolvent Act, but in good faith for sufficient consideration, without knowledge of insolvency and in pursuance of a previous agreement, and fresh advances, and extended accommodation and payments were made and given on the faith of such agreement by the defendant Snow, and the firm of which he was a partner, to the defendant Flint, and on this branch of the case relied on the following cases: (1) 5 Russ. & Geld. 244,
Campbell v. Barrie (1); Allan v. Clarkson (2) ; Exparle Winder in re Winstanley (3); Ex parie Wilkinso9n in re Berry (4); Bitlesione v. Cooke (5); and Bills v. Smilkl (6); and Williams on Bankruptcy (7); and Mc Whirter v. Thorne (8).
And because under "The Merchant Shipping Act of 1854" (Imperial), and the Colonial Laws Validity Act (Imperial), and under the Statutes of Canada, the right and title of the defendant Snow under the mortgage could not be defeated or affected in any way by the provisions of the Insolvent Act and amendments; citing McLachlan on Shipping (9); Merchant Shipping Act, 1854 (10); Statutes of Canada, 1873 (11); Bell v. Bank of London (12); Kitchen v. Irvine (18); Cahoon et al v. liforrow (14).
Bingay Q.C. and Graham Q.C. for respondent. 1. There is no repugnancy between the Merchants' Shipping Act, 1854, and the Insolvent Act, 1875. There may be an incidental interference in the operation of the latter as there is in Canada in respect to legislation of the Dominion and the provinces, but there is. no conflict between the two Acts.
See Citizens' Insurance Co. v. Parsons (15) B. N. Act, secs. 91, 56.
All Dominion legislation and all the provisions of the Civil Code respecting ships would be repugnant if the Insolvent Act is. The Dominion Parliament has full power under the B. N. A. Act to legislate in respect to insolvency and shipping.
The Merchant Shipping Act provides for title to shipping. The Insolvent Act says a trader in insolvent circumstances cannot make Jur. SUPREfE COURT OF CANADA.
a transfer.
Bell v. Bank of London (1) ; Lindon v. Sharpe (2).
2. The onus is on defendant to show that the alleged previous agreement which is used to support this transfer was made bond fide, and when the insolvent was in such circumstances that he could lawfully make such a transfer.
Wilkinson re Barry (3).
There must be other evidence than that of the parties to the agreement.
Morton v. Nihan (4).
The agreement was to postpone the security until Flint was on the verge of insolvency, and cannot support the transfer. Kerr on Fraud (5); Ex parte Burton (6); Ex parte Kilner (7).
The section of the English Bankruptcy Act is different, and the agreement cannot be imported into our statute, except on the theory that it was an agreement such as in equity would be specifically performed.
Even in such case, if a secret agreement can be used to support a transfer, the sections respecting fraudulent preferences are useless.
Sir J. W. RITOHIE C. I.-The facts and pleadings, as stated in the judgment of the judge in equity, are as follows that raid that thirty H.
I11 days from the making of the mortgage, he was placed in insolvency ' and the plaintiff appointed assignee. That the defendant Flint's shares in the "Tsernogora " formed the principal part of his assets, and that the mortgage had been made fraudulently and in contem- Rite e C.J.plation of insolvency. The bill prayed that it be set aside and the registry cancelled, &c.
Thomas C. Jones, defendant, one of the mortgagees, did not appear. Flint and Snow the other mortgagees appeared and answered separately, Flint denying that he was in insolvent circumstances, and that the mortgage was made in contemplation thereof, and both of them setting up a previous verbal agreement that Flint would give to Snow and his partners, the firm of Snow & Burgess, security for further advances to be made by them to him, which advances to a large amount had been made by them to him in reliance upon such agreement or promise, and that such agreement was made with Flint without any knowledge on their part of his being in insolvent circumstances.
It appeared by the evidence that Flint, who was a barrister by profession residing at Yarmouth, in the Province of Nova Scotia, was and had been for some years previously, a ship-owner. He owned shares in several ships which he employed in general carrying trade. His agents in Liverpool, England, were T.
Real estate......
.........
$ 9,350 Mortgage on real estate ....................................
Personal chattels................
.
. .. ......
1,300 Shares in "Tsernogora
........
12,500 Shares in four other vessels............
......
10,450 Debts and balances due him..
.............
3,500 Total.............
...........
$37,800 Direct........... .....
............ $36,000 Indirect...................
...............
40,000 $ 76,000 The assignee proved that these properties were scheduled at higher rates than they would bring, the bulk of his real estate was mortgaged for its full value and about the same time as the mortgage on the" Tsernogoi a" Flint's share in two other vessels were mortgaged and other securities given by Flint to creditors some of whose claims had not matured.
All of the parties in whose favor Flint had endorse4 to the amount of $40,000 in all were really in insolvent circumstances, and to his knowledge were then badly strapped (to use his own expression) for money. Their temporary solvency depended J on the stability of parties abroad and especially upon Charles Gumm & Co., of Liverpool, England, and their failure which was evidently not entirely unanticipated by Flint and the news of which was Rit 0.J. received by him before the execution or registry of the mortgage to Rce_ Jones and Snow, threw the whole of them including Flint into a state of hopeless insolvency.
It is needless to discuss the evidence to show that Flint knew or at least feared that he was about to become insolvent and whatever promises he made to the mortgagees to give them security it appears to me to be soclear on his own evidence that he was induced to give the security at that time by the fear of insolvency at a very early period that it would be a work of supererogation to insert in this judgment the elaborate analysis of the evidence on that point of the case which I have prepared.
What I have to say on another ground of defence will incidentally throw some further light upon it.
The defendant's second defence set out in the Bill was that admitting the mortgage to have been made in contemplation of insolvency the statute did not apply because it was made to fulfil an agreement which had been previously made between the parties which agreement was not made in contemplation of insolvency and that the court would uphold the conveyance made in pursuance of that agreement as if it had been made at the time and under the circumstances attaching to the agreement.
He informs in his evidence that he had a conversation with Alfred Snow, one of the firm of Snow & Burgess, at their office in New York, about 1st November, 1878, more than six months before the mortgage was executed. That for some time previous to that date he had been in the habit of drawing on Snow & Burgess when he wanted money and at the same time sending them as collateral security joint and several notos from himself and the. parties in Yarmouth for whom he was in the habit of endorsing, viz., Rogers & Co., Horton, Kelly & Lewis. The amounts of these drafts were paid as they became due by freights of Flint's vessels and by remittances from him to them. Mr. Snow at that conversation told him that they objected to the note as collateral security for the drafts and asked for other security and Flint promised that he would " give them security in case anything should happen."
He mentioned among other things the "Tsernogora," "they said they would leave it to me to protect them, they had security at the time in collateral notes, I did not increase my indebtedness to them, they were not consulted with reference to the mortgage before my giving it, the(. did not demand the mortgage previously to its being given, the giving tion he says that " they consented to continue the business with the understanding that they were to be kept secured."
But he sub. Ritchie jsequently modifies this by the statement " that he agreei to give them collateral notes whenever I drew on them and told them I would give them a mortgage on the Tsernogora' in addition to the notes should they want additional security."
This they never did, they received the collateral notes with every draft without demand. ing additional security or even mentioning the matter after that conversation.
He states that he had this conversation and promise in his mind when he put Snow's name in the mortgage. His original intention was to give each of the parties-.Tones & and Snow & Burgess-a separate mortgage each on ten shares of the ship, and he had a week previously made drafts of these mortgages, but finally, obviously on receipt of news of Gumm & Co.'s failure, he hurried the two into one brief mortgage and hastened to the office of the registrar to get the mortgage entered as soon as possible.
While I am by no means prepared to say it is necessary that a previous arrangement to give a security must be such a technical binding contract that specific performance could be enforced in equity, or damages for a breach recovered at law, after a careful consideration of the evidence, I find it extremely difficult to say, that in this case there was any bond fide agreement binding or not binding, to give the mortgage; but assuming there was, I think the evidence abundantly shows that the mortgage was to be given as the mortgagor sa ys only, " in case anything should happen," which I can only take to mean " insolvency," and that when actually given, it was given in contemplation of insolvency, and therefore a violation of sec. 133 of the Insolvent Act of 18'5, which enacts:
If any sale, deposit, pledge or transfer be made of any property real or personal by any person in contemplation of insolvency, by way of security for payment to any creditor, or if any property, real or personal, movable or immovable, goods, effects, or valuable security, be given by way of payment by such person, to any creditor whereby such creditor obtains or will obtain an unjust prefereneQ over the creditors, such sale, deposit, pledge, transfer or payment shall be null and void, and the subject thereof may be recovered back for the benefit of the estate by the assignee, in any court of competent jurisdiction; and if the same be made within thirty days next before a demand of an assignment, or for the issue of a writ of Ritchie C.J. attachment under this Act, or at a-ny time afterwards, whenever such demahd shall have been followed by an assignment, or by the issue of such writ of attachment, it shall be pr.esumed to have been so made in contemplation of insolvency.
In view of the object and policy of this Insolvent Act being to secure a general and equal distribution of an insolvent estate among all the creditors of the insolvent, and with that view to prevent preferential dealing with creditors with a view to insolvency, can it be said that this promise to give security in case anything should happen, was not by its very terms to be carried out only in the event of insolvency, or with a view to insolvency ? And, as clearly established by the evidence, it was, in furtherance of this intention, only given when ruinous insolvency had overtaken the mortgagor.
The authorities, in my opinion, clearly establish that any promise that a creditor shall have priority in the event of bankruptcy is contrary to the policy of the bankruptcy laws and void.
In ex parte Burto in re Tunstall (1) the marginal note is as follows:- Shortly before a trader filed a liquidation petition he executed a bill of sale of substantially the whole of his property, to secure the repayment of an advance which had been made to him two months previously. At the time when the advance was made the borrower agreed to give a bill of sale to secure it; but the agreement was that the bill of sale was not to be signed until the tender " lost confidence " in the borrower.
Held (reversing the decision of Bacon C.J.), that this amounted to an agreement to postpone the giving of the bill of sale untd the grantor should be on the verge of bankruptcy; and that, consequently, on the principle of ex parte Fisher it could not support the deed.
(1) 13 Ch. D. p. 102.
James LJ:
There we held that it is a fraud on the bankrupt law for a man to KNEY.
undertake to give his creditors a bill of sale when required, that is to say, when the circumstances of the debtor shall be such as to Ritchie 0.3. require the creditor to demand it. That decision established an exception upon an exception. That which is void is an assignment of all a man's property for a past consideratiin.
But a court of equity regards that which has been agreed to be done as done, and therefore it has said that, if it was really part of the understanding when the money was advanced that a bill of sale should be given, then that agreement would be the same thing as if the bill of sale had been actually given at the time. The bill of sale would be sustained by the previous agreement.
But ex parte Fisher established this exception upon that exception to the rule, viz., that if the bargain be not an out-and-out one, but only an agreement to give the bill of sale when required, then it is only a device to enable the debtor to acquire false credit, and the creditor is not entitled to avail himself of it in the event of the debtor's bankruptcy.
It is a fraud on the bankrupt law. To my mind that is exactly the present case. The bill of sale was not to be signed till the borrower had "lost the confidence " of the lender:
Thesiger L. J.:
The only question is whether, at the time when the advance was made, there was such an agreement to give the bill of sale as this court can give effect to. The debtor's evidence is that the bill of sale was not to be signed till Whitehead had "lost confidence " in him. If that evidence is not displaced it brings the case within the principle of ex parte Fisher, which is not to be frittered away by nice distinctions, and the evidence of Whitehead admits something of the same kind, for he says that the bill of sale was not actually signed tll he had lost confidence in the debtor.
Ex parte Kilner in re Barker, Baggalay L.J. (1): The principle applicable to cases of this description is enunciated by Lord Justice Mellish, in,giving the judgment of the court in ex parte Fisher (2), in these terms: "Altiough we do not dispute the rule that where a sum of money is advanced on the faith of a promise that a bill of sale shall be given, such s im is to be treated as a present advance on the security of a bill of sale, we do not think this rule will protect transactions where the giving of the bill of sale is purposely postponed until the trader is in a state of insolvency, in (1) 13 Ch. D. p. 248.(
(2) 7 Ch. App. 644.
order to prevent the destruction of his credit, which would result from registering a bill of sale. We think that such a postponement is J evidence of an intention to commit an actual fraud against the general creditors."
He dealt with the particular circumstances of that case, and said that there was evidence "from which we infer Ritclio C.J. that it was understood between the bankrupt and Mr. Wells, from the commencement of the advances, that a bill of sale was to be given, if required, by Mr. Wells, though, for the purpose of protecting Mr. Ash's credit in the meantime, the giving of the bill of sale was purposely postponed until he was unable to go on, and was in a state of insolvency."
Now I think it is clear from the way in which the principle is enunciated by Lord Justice Mellish, that it must be for the court in each case that comes before it to take into consideration all the surrounding circumstances, and to see whether, having regard to these circumstances, there is evidence of an intention to commit an actual fraud against the general body of creditors.
Thesiger L.J.:
She relies upon a prior agreement which she says supports the bill of sale on the principle laid down in Mercer v. Peterson (1) and cases of that class. Those principles are undoubtedly binding upon this court, but I cannot shut my eyes to the fact that their application in any particular case ought to be most carefully guarded, because it cannot be disputed that they do, unless they are applied with very great caution and under the most careful limitations, open the door to very considerable frauds.
It appears to me, therefore, right that the court should require from any person setting up a bill of sale, executed under such circumstances as those which exist in the present case, very clear evidence that the agreement which is set for the purpose of rendering the bill of sale valid was a bond fide agreement, or, in other words, using the expression of Lord Justice Mellish in ex parie Fisher (2), that it was not an agreement that the bill of sale was to be delayed until such time as the trader should be in a state of insolvency, in order to prevent the destruction of his credit which would result from the registration. I think that the decision in ex parte Fisher supplied a most wholesome corrective to the dangers which, as it seems to me, may arise from the principles laid down in v. Peterson (3), and that we ought to apply the doctrines laid down by Lord Justice Mellish to their full extent, and to require, in this and similar cases, a very clear explanation of the reason why the (1) L R. 2 Ex. 301; Ibid. 3 Ex. (3) L R. 2 Ex. 304; Ibid. 3 Ex. (2) L. R.& Ch. 644.
that that CJ I am clearly of opinion that the Dominion Parliament in legislating on the subject of bankruptcy and insolvency, had full power and authority to declare that an insolvent trader in Canada should not make a transfer of his property, including his ships registered in Canada in contemplation of insolvency, and that sec. 138 applies to this mortgage so made.
J.-Unless the mortgage which is impeached by the bill in this case can be referred to some prior agreement, it is clear that it must be held to be void as a voluntary preference within the terms of section 183 of the Insolvency Act 1875, for it was given within thirty days next before the issuing of the writ of attachment, and moreover, the mortgagor, Flint, is proved to have been insolvent at the time and the evidence shows that it was given voluntarily, that is without any pressure on the part of the mortgagees. real question is, therefore: Was there a prior agreement come to in good faith, sufficient to make the security unimpeachable on behalf of the creditors?
Flint in his evidence thus states the prior agreement to which he attributes the giving of this mortgage, he says : When I was in New York in the fall of 1878, I had a conversation with Snow and Burgess about drawing on them, and told them I would see my account protected in case anything happened, and mentioned amongst the securities the " Tsernogora." The learned judge in equity before whom this cause was originally heard, construed this reference to the XI.]
case of anything happening to mean in case there was any danger of loss to the creditors arising from the insolvency or probable insolvency of the debtor. In ] this, he was, I think, entirely right. Can we then consistently with authority hold that such an agreement as this, to give security in case of insolvency or apprehended insolvency, leaving it to the debtor himself to determine when the occasion has arisen, takes from the transaction of the mortgage the character a voluntary preference which standing alone must be attributed to it. I am clearly of opinion that it does not The cases of ex parte Fisher re Tunstall and ex parte Kilner are all in point to show that such an agreement is in itself invalid, as being a fraud the Insolvency Act, and therefore one which can give no support to a security otherwise void as a voluntary In the cases cited the security was primd facie void under the Bankruptcy Acts as comprising all the debtor's property, and it was in each case sought to support it by proof of a prior agreement to give security "when required " or "if required," which was held insufficient, the court saying that it was a fraud on the Bankruptcy Act to agree with a trader that he should give security if he got into difficulties, but meanwhile should enjoy the benefit and credit of appearing to be the absolute and unencumbered owner of the property. The agreement in the present case seems still more objectionable for it leaves the giving of the security to the voluntary act of the debtor, who is himself to determine when it is to be given, and who, therefore, has it in his power, if he thinks fit so to do, to withold it altogether. There is no reason why the principle of the cases cited should not apply to the case of an agreement to give security on specific property as well as on all the insolvent's property when the security is given under such circumstances that standing by itself it would be a fraudulent preference. security being primd facie void as a voluntary prefer- J. ence under the 133rd section of the Act the onus was on the mortgagees, if they could, to displace presumption by evidence. All they have sho'wn for that purpose is a previous arrangement to give security which was in itself a fraud on creditors and on the Insolvency Act, I see nothing in the point that ships registered under the Merchants' Shipping Act do not pass to assignee.
The Insolvency
Act was clearly constitutional and has been so held by the Privy Council.
No proper Insolvency
Act could have been passed unless it made provision for the disposition all insolvent's property. Property in British registered ships must, therefore, like other property, be held to vest in the assignee. If, for the purpose of perfecting the assignee's title, it is requisite that some assignment of the vessel should appear on the registry the judge has power to compel the insolvent to execute such an instrument.
The appeal should be dismissed with costs.
J.-For the same reason I am in favor of dismissing the appeal. The court of Nova Scotia was unanimous in holding that the mortgage was given in contemplation of insolvency.
The contention, that the moment a mortgage or bill of sale of a ship is registered, no matter by what fraudulent means it is obtained, the title is absolute and unimpeachable, is untenable. You can find nothing to support this view in the Merchants' Shipping Act. The provision in the statute is simply to afford a ready means of disposing of this kind of property, giving a power of sale to the mortgagee so that he may dispose of it in the most summary manner.
That is the only object of the law in giving that form of title and making it absolute, but it does not prevent the title being attacked by all KIEY. regular modes.
I do not consider that this kind of property is exempt from being attacked for fraud. For these reasons, viz : the contemplation of insolvency and that the title is not so absolute so as to prevent it being attacked for fraud, which are the reasons given by both the Equity judge and -the majority of the Supreme Court judges, I am in favor of dismissing the appeal.
HENRY J.-I regret that I cannot come to the same conclusion on either of the two points which have been mentioned by the Chief Justice and my brother Fournier.
We are certainly governed by the decisions which the learned Chief Justice has referred to, and the law which he has laid down, but I maintain that the circumstances are different from those in the cases to which he has referred.
It is under the 183rd section that the party respondent seeks to set aside this mortgage, and I may here state that the Insolvent Debtors' Act being in curtailment of common law rights of the parties must be strictly construed. The 183rd section says (1) :
Now, that is the assumption that is made, and that is all that the Act says-that if it is done at any time and it is proved that it is an unjust preference that is given to a creditor and that it is done by the person in contemplation of insolvency, then it is void.
In the first place, we must see whether it was done in this case in contemplation of insolvency. We are to take the evidence of Flint, and if we come to the conclusion that his evidence is totally unreliable, we can come to the conclusion that it was done in contemplation of insolvency; but if his statement is true that it was not done in contemplation of insolvency, because - ~he swears most positively that when that was done (and several cases have been decided in this court that favor the same position that he occupied) that it was not so done in contemplation of insolvency, that he expected to tide through, and that he expected by making this arrangement with Snow and Jones and Co., that he would be in such a position that he would be able to carry through his business, then the provision of that section has not been violated. That is his sworn testimony; it is not contradicted, nor do I see any reason to disbelieve it, and, therefore, I think that in this respect the allegation that the act complained of is against the provision of the statute has not been sustained by the evidence.
In the next place the presumption arising from the fact that the mortgage was given within thirty days, is capable of being rebutted, and I think the evidence here rebuts it to this extent, that if the parties under the agreement obtain advances from other parties on an undertaking to secure them, this clause has no effect whatever and the implication in respect of the thirty days is in fact completely negatived. Section 131 says: thirty Not one tittle of evidence is given to show that the parties to whom the mortgage was given were aware of the inability on the part of Flint to meet his engage- Jo sm ments.
On the contrary the whole of the members of the firm swear most positively that they had no idea of f J it. What should the court do under such circumstances ? They might make an order, under the terms of this clause of the Act, that the party should give up the security, but that he should be reimbursed for any advances that he had made in consideration of that security.
I therefore think, under this clause of the Act, the plaintiff is not entitled to succeed, and he has not sought redress under that section of the Act, but under the 133rd section, which, I think, has a totally different object in view. Then we must also look to the 132nd section, which enacts:
intent to intent the the Under that section of the Act there is no evidence to show that the parties who obtained the mortgage had any fraudulent intention, or in fact, had any information that this party was making an assignment when in embarrassed circumstances.
As to that part of the case then I think it is necessary to look at some of the evidence that has been given.
I will not read it over. I have noted the different pages at which it is to be found, and have come to the conclusion that a careful reading of the evidence, and a'comparison of the evidence of Flint, of Snow and others, will not establish the position that Flint was to give the security only when the other parties required it or became doubtful of him, or when in a state of insolvency; the evidence does not sustain any one or other of these positions; the advances were made solely on the condition that he was to secure __ J. them.
Six months before this assignment was made, in the month of October, 1877, Allbright, a partner of Jones, who was one of the parties to this mortgage, objected to accepting further drafts, and told Flint that they did not wish to continue the business, that it was an unsatisfactory way of doing business, but they continued to do it on the promise of Flint that he would have them secured. In October, 1878, that is six months before this assignment was made, another conversation took place between Flint and Alfred S. Snow, and there again the evidence -is that Snow said to Flint, when agreeing to continue the acceptance of his drafts, we trust to you to keep us secured; we will not go on at present, but under your promise to keep us secured we will accept these drafts of yours, and they went on and accepted drafts to something like the amount of $18,000, on the promise that he would keep them secured, and the very name of this vessel that was assigned afterwards was mentioned as one of the means of security. They swore most positively that if it had not been for that engagement they would have changed the business and refused to accept the drafts, but in consequence of that promise, not that he would give them a bill of sale on the vessel or a mortgage when they ceased to have faith in him or went into insolvency, but that he was to keep them secured. They go further and say that they expected it had been done before it was done. I therefore think that this is not a case in point. It is not a case the same as those referred to in the cases read by the learned Chief Justice.
I take a different view of the evidence altogether from that taken by my learned brethren. The evidence is very particular and all the parties swore that they had no idea that Flint was insolvent or in embarrassed circumstances.
Reading the whole of the evidence carefully, it appears just to amount to this, " we will continue to advance to you M"E and you will make us secure," and he promised to do so. - If he failed to do that in proper time it was no fault of J. Snow or of Jones & Co.
There is another very important point connected with this which has not been very much touched upon by the learned Chief Justice.
With all due deference I must differ from the construction of the Merchants' Shipping Act given by my two learned brethern.
have come to the conclusion, that if the transfer were given by an insolvent, the Insolvent Act of course touches the property, and if it were not for the provision of . the Merchants' Shipping Act they might go behind the mortgage, and ascertain whether it was given contrary to the Insolvent Act or not, but I maintain that enquiry is prohibited by the Imperial statute. We are told, and it is admitted, that in England an insolvent court could not go behind a mortgage; but we are told in so many words, that in Canada, in contravention of the Imperial Act, that can be done which could not be done in England.
We know that the Merchants' Shipping Act applies to all British possessions, and when it is provided that an Insolvent Act shall not effect mortgages, surely if an English Insolvent Act cannot, a Colonial Insolvent Act cannot override the provisions of the Imperial Shipping Act. Were it not for the Insolvent Act there would be no question in this case.
And this, be it borne in mind, is not a question of fraud, there is no allegation of it, it is an unjust preference, and unjust because the statute makes it so. It is not fraudulent, but if it were proved to be fraudulent there might still be a difficulty under the Merchants' Shipping Act. Now what is the Merchants' Shipping Act, and what does it provide? The 43r section says:
Such ship or share. That is in the case of the trausfer of a ship. Section 66 says:
the at Now when we know that the Act is universal throughout all British territories, how can we say that that is to be contravened by a colonial law ?
I said before that if it was a fraudulent transaction that was set up here, the case might possibly be different; but it is not so; it is a mere provision of the Insolvent Act passed by the Dominion of Canada, and that, it is said, overrides the provision of the English Act. But we are told that the provision in question only applies to England.
How do we find that it only applies to England?
It applies as generally as any other provision of it; it goes everywhere that that Act has operation, as part of it. How can it be said then that the Dominion Parliament is authorized to override an Imperial statute?
The reason that Parliament had for passing that Act in England, we may surmise, but it is not necessary that we should; but I may mention that ships go all over the world, and a man owning a ship registered in England makes a mortgage on it and has his certificate from his port of entry that there are no incumbrances on that ship; he wants advances, and he is told " yes, I will give you advances, but you must keep me secure."
Amongst other articles by which he might be secured is a certain ship and her name is mentioned, and the party advances him two. thousand p >unds-in a foreign port, but he says, "oh you did that in contemplation of insolvency," because four or five M months afterwards he became insolvent.
Now, the H statute was intended to prevent anything of that kind . taking place, and it was intended that a party should go to the registry and take conveyances from that registry. It is all provided for in the Act, and it seems to me perfectly plain and palpable that the intention of the British Parliament was that the registry or transfer of a ship or bill of sale was not to be affected by anything outside between parties, and unless fraud itself should vitiate the contract.
Under these circumstances, for the reasons given in the judgment of Justice Wetherbee of Halifax, in which I concur, I am of opinion on that point that the appeal should be allowed. But there is another section of ch. 63 of the Imperial Act of 28 and 29 Vic., sec. which reads as follows:- Here is the provision of the Act.
It must be repugnant or else it cannot override it, and here is a provision in the Imperial statute which says that any such colonial law shall have no effect whatever.
One answer was given to this in the argument at Halifax, and that was in reference to a provision in the Act that the Merchants' Shipping Act might be amended by a Colonial Act specially approved of by the Queen in Council, and it was argued on the part of the respondent that inasmuch as this Insolvent Act of Canada was passed and received the Queen's assent by the Governor General, that that satisfies that clause in the Act, but I maintain that it cannot affect it, The statute itself makes particular provision how it is to be done, that is by an Order of the Queen in Council; but that has not been done. The assent of the Governor General to a bid passed by the Dominion Parliament is very different from an Order of the Queen in Council; giving the royal consent.to it is not sufficient for what is required by that clause of the Act.
Under the whole of the circumstances I think the appeal should be allowed.
J.-I agree with the learned Chief Justice that this appeal should be dismissed on the ground that the mortgage in question was clearly given in contemplation of insolvency. On the second point raised in the case, as to the effect of the provisions of the Merchants' Shipping Act, I have strong doubts. There seems to me to be a great deal of force in the reasons just given by my brother Henry on that part of the case, and it the judgment in the case were to depend on the conclusion I arrive at, I would certainly have taken more time to consider that important question.
Appeal dismissed with costs. Solicitor for appellants: Sand/ord H. Pellon. Solicitor for respondent: James Went Bingay. ACTION-Against Company and promoters fraudulent misrepresentation-Ex delicto for deceit - - - - - of-Acting agent- Next of kin-Costs.]-The plaintiff wished to administer to the estate his brother the
County of Westmoreland and Province of
Brunswick, but was usable to give the necessary administration bond until the defendant and one J. agreed to securing themselves having the estate placed in the hands of the defendants.
portion of the estate consisted of English railway stock which the defendants wished to convert into money, but plaintiffs would not assist them doing
In passing the accounts of the estate the
Probate Court of Westmoreland County, it was found that there several persons entitled to participate as next of kin of the deceased, and the respective amounts due the several claimants settled the court.
Owing to the plaintiff's refusal to join realizing the stock, however, the defendants were unable to pay of these parties their respective shares, and finally the plaintiff to compel the defendants to pay portion of the estate, with which claimed as commission, and also to hand over to him the shares the next kin.
At the hearing a decree was made directing the estate to disposed of the defendants, and that they entitled to their costs, as between solicitor and client, which could retained out the plaintiff's share of the estate.
appeal Proudfoot J. reversed that portion of the decree which male the plaintiff's share the estate liable for the defendant's costs, but the Court of Appeal restored the original judgment.
Held, affirming the judgment the court below, that the misconduct of the plaintiff caused all the litigation, the Court of Appeal had acted rightly in refusing to compel any the other next kin to bear the burden of the
HAr
2-of
Death of wife negligence of Railway Company-Benefit children
AFFIDAVITS-In reply-New Alatter-Prac- ---- APPEAL-New trial ordered Court Verdict against weight of evidence.] The court will not hear an appeal where the court below, the of its discretion, has ordered a new trial the ground that the verdict is against the weight evidence. Ton 2-New trial ordered Court below-Ques- 3-Final Judgment- entered 4-Duty Appellate Court - Discretion -Interference
- Misconduct arbitrators-Balt rectfy award-Prayer for general relief-Jurisdection of Court-Practice- Facturn-candalous and impertinent.] bill in this case was to rectify an award made under a submission to arbitration tween the parties, on the ground that the arbi. trators considered matters not included in the submission, and had divided the sums received the defendant the plaintiffs, because that defendant's brother and partner was a party to such receipt, although the partnership affairs of the detendant and brothers were excluded the submission. The bill prayed that the award might amended and the defendant decreed to pay the amount due the plaintiffs on the award being rectified,and that, in other respects, the award should stand and binding the parties; there was also a a prayer general relief.
below, that to grant the decree prayed would to make a new award which the court had jurisdiction to but :
Held, also, reversing the decision of the court below, that under the prayer or general relief the plaintiffs were entitled to have the award set aside.
plaintiffs' factum, containing reflections the judge in equity and the full court was ordered taken the scandalous and impertinent. 2-Arbitration order of Court at Nisi Prius -To entered averdict-Motion aside- Judge's order-Special paper Sup. Court, N.B.- Affidavits in reply-New matter-Discretion of Nisi Prius to arbitration, the award to entered on the postea as a verdict a jury. After the award the appellants obtalied a AWARD.-Continued.
judge's order a stay of proceedings, and the cause to entered the motion paper the court below, to enable the appellants to to set aside the award and obtain a trial, the ground that the arbitrators had improperly taken evidence after the case before them was closed.
the term in which the motion was to heard, appellants abandoned that portion of the order directing the cause to placed the motion paper, and gave the usual notice motion set aside the award and postea, and for a new trial, which motion, the practice of the court, would be entered the special paper. Defendant, opposing such motion, took the preliminary objection that the judge's order should rescinded before plaincould proceed on their motion, and presented affidavits on the merits, and plaintiffs requested leave to read affidavits in reply, claiming that defendant's affidavits disclosed new matter. This the court refused, and dismissed the motion, the majority of the judges holding that plaintiffs bound the order of judge, and could not proceed the special paper until that order was rescinded, the remainder of the court refusing the application the merits.
On appeal to the Supreme
Court of Canada;
Held,--that the cause was rightly the special paper, and should have been heard the merits, the court should have exercised its discretion to the reception rejection affidavits in reply; Strong J. dissenting the ground that such an appeal should not heard.
Per Ritchie J.-A Court of Appeal ought not from court below a matter discretion, unless it is made absolutely clear that discretion has wrongly exercised.
* * * statute applies as well to motions for trials, where the grounds upon which the motion based are supported affidavits, as in other cases. It makes no distinction, but applies to all "motions founded affidavits."
Josasv.ToK- TAXES-StTohn City ment N.B.)-Chartered
Bank-Assesment capital stock-Par valueqef-Real and personal property of Bank-Payment Lazes under protest I of the
Saint John City Assessment Act of it provided that '" all rates and taxes levied and upon the city Saint John shall raised an equal rate upon the value of the real estate situate the city, and part of the city to taxed upon the personal estate the inhabitants and persons deemed and declared to inhabitants or residents of the said city.
*
*
*
*
* upon capital stock, or other thing of joint stock companies, corporations, or sons associated in business.'
And after viding the levying of poll tax, such tion to that " the whole residue to be raised shall levied upon the whole ratable property, real personal, and ratable income and real value, and amount of the same as
TAXES.-Continued. nearly as ascertained, provided that joint stock shall not be rated above the par value thereof."
of the same Act provides that joint stock companies and corporations shall assessed, under this Act, in like manner as individuals; and for the purposes of such assessment the president, or any agent, manager such joint stock company corporation shall deemed and taken to the owner of the real and personal estate, capital stock and assets such enmpany or corporation, and shall dealt with and may proceeded against accordingly."
J. the President of the Bank Brunswick, was assessed under the provisions the above Act, on real and personal property the bank valued, the aggregate, at capital stock of the bank at the time of such assessment, was only and he to pay the taxes that amount which was refused.
It was not disputed that the bank was possessed of real and personal property the assessed value.
appeal from the Supreme Court Brunswick, refusing a certiorari to quash the said assessment. Held, Fournier J. dissenting, - That the real and personal property the bank are part of its capital stock, and that the assessment could not exceed the par value of such stock, namely,
The chamberlain of the city of Saint John authorized, without any previous proceedings, to issue execution for taxes if not paid within a certain time after notice.
In order to avoid such execution the Bank of Brunswick paid their taxes under protest
Held,-That such payment did not preclude them afterwards taking proceedings to have the assessment quashed.
Ex parte ----- 2-Sale land for tazes-Action purchaser
5------ ASSETS-Distribution of-nsolvent bank - Cows.
ASSIGNEE-Right of sue under voluntary assignment-Arts. and 0. P. (L. .)- Assignee represents only Assignor.] * In the absence a statutory title to representing creditors, such is conferred by bank. ruptcy and insolvency statutes, an assignee trust for creditors only enforce the same rights as the person makin the ssignment to him could have enforced; therefore the dant could not, a plea in his own name, ask to have a conveyance, made the debtor to the plaintiff prior to the assignment under which defendant claimed, rescinded or set aside fraudulent against creditors.
The nullity of .a deed should not be pronounced without putting all the parties to en cause en dclaration yugement Semble-The plaintiff being a second pur. chaser in good faith aua tor value, acquired a ASSIGNEE.-Continued.
valid title to the property in question which he could set up even against action brought directly the creditors.
interest in patent
2-Of equity of redemption in trust-Recontrustee - Foreclosure against trus- - ----- BANK-Assessment Capital of-Par value
-- -- -- IN EQUftY-To rettify award -Prayer for general relief-Jurisdiction Court to grant relief under- ---- - BILL EXCHANGE-Not stamped drawer
-Afxed drawee discounted- Double duty afixed at trial-Knowledge law relating stamps ch. 17-Plea that defendant did not make draft-Con. Stats. N. B.
sub-see. and 5-Evidence want of stamp under-Special plea.] remitted mail to a draft on of Fundy Quarrying in payment of account the Company, which was superintendent.
The draft, when received was unstamped, and stamps required the amount of the draft, and initialed them of the date the draft was drawn, which was at least two days prior to the date on which they actually
The draft was not paid, and action was brought against who pleaded, according provisions of Stats.
Brunswick, sub-sec. " that did not make the draft."
the trial the draft was in evidence and objected to on the ground that it was not sufficiently stamped, the plaintiff having previously testified as the manner in which the stamps were put and having also sworn that knew the law relating to stamps at the time. The draft was admitted, subject to leave reserved defendant to move for a non-suit, and at later stage of the trial it was again with the double duty
The trial resulted in counsel agreeing that a non-suit should entered with leave reserved to defendant for verdict, court to have power to draw inferences of fact.
motion, pursuant such leave reserved, the Supreme Court Brunswick set aside the non-suit and ordered a verdict to entered the plaintiffs on the ground that the in the draft want of stamp should have specially pleaded.
apeal to the Supreme Court of Canada:
- Strong and Gwynne JJ. dissenting, that double duty should have placed the note as it into the hands the drawee unstamped, and that it was too late at the trial to such double duty, the plaintiff having sworn that he knew the law relating
BILL EXCHANGE.-Continued to stamps, which precludes the possibility holding that it was a mere error or mistake. Beld, also, that under the plea that defendant not make the draft, was entitled to takq advantage the defect want of stamps. Per Strong J.-That the note was sufficiently stamped and plaintiffs entitled to recover. Per Gwynne J.-That if the note was not sufficiently stamped the defence should have SOCIETY-Con. State., L. -Building Society by-law-Purchase of Land- Ultra vires.] (lie de a building society incorporated under Stats. L. by its by-laws, the August, declared that the principal object of the society was to purchase building lots, and to build lots cottages costing about each every its members.
order to obtain its object, the company through its directors, obeying the instructions of the shareholders, on the 7th October, purchased the particular lots described in the by-laws contracted for the building of twenty-four cottages at each, the amount that each the shareholders had agreed to pay.
year elapses, during which the cottages are built and drawn lot for distribution among the
October, the vendors of the lots and tractors for the building the cottages borrow money the Dominion Building Society, transfer to the same as collateral security the moneys due them the appellants in virtue the deeds of purchase and building contract. The appellant company accepted the transfer, and paid moneys account, and finally a deed of settlement acte riglement was executed between the two companies, which was based the suit the respondent, as assignee the Dominion Loan Company (which name was substituted for that of " The Dominion Building Society," against the appellants. The question argued the appeal was whether the purchase of the lots and contract building entered into the directors was intra vires the appellant company.
Held, affirming the juagment of the court below, that as the transaction question was for the purpose of carrying out the objects the society in strict accordance with its views, it was not ultra vires, Strong and Gwynne JJ. BY-LAW-Of City Council-Violation of-Efect on contract made it was passed - 2-0
Building Society-Purchase land 3-Oj
Municipal Corporation-Not authorised charter-Ultra
- Election under Scrutiny-Power qf County Court Judge-Afatter, ACT.-Continued.
election.) judge of the county court, holding a scrutiny of the votes at an election under the provisions of the
Uanada Temperance Act, has only to determine the majority of votes cast, one or the other, inspection of the ballots ued in the election, and has power to inquire into against the Act, and allow or reject bal.ots as a result of such inquiry. (Henry
CASES-Eureka Mills (p
2-Bodge followed - 3-Walker McHillan Can. R. fol- ------ - - Young v. Smith Can. R. fol- take abroad-Directed to Commissioners-Return signed by only failure to administer interrogatories- - - -- of-Violation of City by-taw Liability of owner
Efect of by-law passed after contract was made.] & tractors for the erection of a building for the respondent in the city St. John brought action claiming have been prevented by reepondent carrying out their contract.
declaration contained the counts, part the work having been performthe terms the contract the building, when erected, would not have conformed to the
Brunswick, 7) two days after the contract was signed.
the trial of the action the plaintiffs were
Supreme
Court of Bsunswick to set such non-suit aside was
Held (Henry J., dissenting)-That the law of the said city of St. John made the contract illegal, and, therefore, the plaintiffs could not recover.
Walker v.
AlcaHlian
Per Henry J.-That the erection the building would not, far as the evidence showed, a violation of the by-law, and, therefore, the non-suit should set aside and new trial
2-Not signed vendor but subsequently admitted his leters-Specific performance
8- With Railway Company-Power of pany protect itself from liability Jor negli- Sce 2.
action against- CORPORATIONS-Promoters of-Action against Company and promoters for fraudulent misrepresentation-Aetion delicto for deceit-Fraudulent concealment.] suit was brought against joint stock company, and against four of the shareholders who the promoters the company. The bill alleged that the defendants, other than the company, had carrying the lumber business partners and had become embarassed; that they then concocted a of forming a joint stock company; that the sole object of the proposed was to relieve the members the personal liability for debts incurrred in the said business and induce the uublic to advance money to carry the business; that application was made to the Government Ontario charter, and at the same time prospectus was issued, which was set out in full in the bill ; that such prospectus contained the following paragraphs among others, which the plaintiff alleged to false : The timber limits of the company, incluthe recent purchase, consist square miles, or acres, and are estimated yield million feet of lumber.
The interest of the proprietors of the company its assets, estimated at about liabilities, has transferred the new company at all taken paid up stock, and the whole of the proceeds the preferential stock will used for the purof the new pany.
Preference stock not to exceed will issued the company to guarantee 8 cent. yearly thereon to the year and over that amount the net profits will divided amongst all the shareholders pro rata. Should the holders preference stock desire, the company binds itself to take that stock during the year at par, with 8 per cent. per annum, receiving months' notice in writing.
Even with present low prices the pany, owing to their superior facilities, will able to pay handsome dividend the ordinary well as on the preference stock, when the lumber market improves, as it must soon the profits will correspondingly increased.
The bill further alleged that the plaintiffs scribed for stock in the company the faith of the statements in the prospectus; that the assets of the company not transferred to the new in the condition that they were at the time issuing the prospectus ; that the embarrassed condition of the company was not made known to the persons taking stock the new company, nor was the fact of a mortgage on the assets of the old company having given to the Ontario after the prospectus was issued but the stock cates were granted ; that the assets of the J company were not worth or any sum over liabilities, but worthless; and prayed recission of the contract taking stock, for repament of the amount of such stock, and for damages against the directors and promoters for misrepresentation.
There was evidence to show that the promolers had reason to believe the prospects of the new company to good, and that they had honestly valued their assets.
the argument three grounds relief were put forward :- Recission the contract to subscribe preference stock.
performance of the contract to take back the preference stock during the year at par.
against the directors and moters for misrepresentation.
The company having become insolvent the plaintiffs put their principally the third ground.
affirming the judgment the court low, that the plaintiffs could claim no relief against the company way recission of the contract, because it appeared that they had acted shareholders and their contract as owners shares after becoming aware of the grounds of misrepresentation.
Held, also to the action against the defendants other than the company for deceit, that the evidence failed to establish such a fraudulent misrepresentation as to entitle plaintiffs to succeed as for deceit.
Held, also, as to the alleged concealment the mortgage to the Ontario Bank, it having given after the prospectus was could not have in the prospectus, and, moreover, that the shareholders were in way damnified thereby, the new company would have equally liable the debt if the mortgage bad not been given ; and as to the concealment of the embarrassed condition the old company, the evidence showed that the did not believe themselves tobe insolvent;
and in neither were they liable in an action this kind. V.
- - - - - - JUDGE-Powers in holding scrutiny under Canada Act- -Assignee in trust jor-Conveyance fraudulent
CROWN-Prioriy of as simple contract creditor
-Insolvent cenk
1' indi7g-up proceedings- Estoprel-Acceptance Crown waiver-45
The Bank of Prince
Edward Island became insolvent and a winding up order was made on the June, the time of its insolvency the bank was indebted
CROWN.-Continued.
to the part the public moneys of Canada which had been deposited several departments the Government to the credit of the eral.
The first claim the dators of the bank), did not specially notify the liquidators that Her Majesty would insist the privilege of being paid full. dends of per cent. each were afterwards paid, and on the 28th February, there was a balance of that day the respondents were no that intended to insist upon her prerogative right to paid
At this time the liquidators had their hands sufficient to pay Majesty's claims.
lowing objection to the claim was allowed the Supreme Court Prince Edward Island, viz.:
I hat the represented the of Finance and the Receiver General, prerogative or other right to receive the Bank of Prince Edward leland the whole amount due to Her as claimed the thereof, and has only right to receive dividends as an ordinary creditor of the above banking company.
low:-(1) That the crown claiming a contract creditor has a right to priority other creditors of equal degree.
This prerogative privilege belongs the crown as representing the Dominion of Canada, when claiming a creditor a provincial corporation in provincial court, and not taken away proceedings insolvency (2) That the crown had not waived its right preferred this case the in which the claim was made, and the acceptance two dividends. I 2-Right to petition right against- Order in Council-Account stated-Consideration - -- -- -Measure of-Fire insurance-Tenant for life-Value
2husband as administrator-Death wife negligence of Iailoay Company- - 3--By
DEED-Construction of-Astoppel--Misrepresentation.1 a man of education, acquainted with commercial business, executed a bond to pay certain sums of money, certain events, to the Bank Canada. By an agreement, bearing even date with the bond, it was recited inter alia that in consideration of a mortgage granted to the M. & the bank had make further advances to M. & joint obligors with and parties the that rs. C. R. VoL. IT. DEED.-Continued.
the agreement was executed to secure the bank case there should any deficiency the assets of the or the value of the property comprised said mortgage, and to secure the bank ultimate
The agreement contained also proviso that if the should well and truly pay their indebtedness, then the bond and agreement should become wholly void.
In a suit brought upon the said agreement against alleging a deficiency in the assets the and indebtedness to the bank, M.
pleaded that the agreement had been executed him representation made to him of his co-obligors that it was to secure the bank against any loss which might arise reason the refraining the registration of the mortgage, or reason of any over valuation of the property embraced in the mortgage, and not otherwise.
The bank, the plaintiffs, made representations whatever to the defendants.
below, Gwynne J. (dissenting)
, that M. was bound the execution of the documents, and was liable upon them according to their tenor and
CANADA- -- --- 2-Recitals in-Exercise"of power of afterforeclosure- -- - - --- -- DISCRETION-Of Court below-Exercise of- Right Court of Appeal to interfere with- CANADA-Liability of, for Provincial --- LANDS-Permits to cut
(Man.)-Rights of holders of-Dominion Lands
Act, 7T, 52-nterim In.
junction-Damages ] the November,
Sinnott al. obtained a permit the
Crown Agent. Manitoba, " to cut, take and have their own that part range that extends miles north and miles south of the Canadian Pacific way track," the following quantities of timber:
cords of wood and ties, permit to expire let obtained another permit the February, to cut 25,00 ties.
In February, under leave granted an Order in Council of October,
Scoble al. cut timber for the purpose of the construction of the Canadian Pacific Railway the lands coveredby the permit of the
November,
Sinnott et al their bill complaint claimed to entitled their to the right of cutting timber on said lands until the Ist and prayed that defendants Scoble al. might restrained injunction cutting timber said lands, and might ordered to account for the value the timber cut. An interim injunction was
LANDS.-Continued.
granted on et al. who justified their acts under the Order in Council of the 27th October, and denied the exclusive possession title the lands or standing timber. The injunction was made perpetual the judge who heard the cause, but, re-hearing, the judgment was reversed, and it was ordered that enquiry should made to damages defendants' reason of the issue the interim injunction at the instance of the plain- Held,-that the decree made on re-hearing the Court of Queen's of Manitoba should and that the permit question not within the provisions the Dominion Lands Act of and did not vest in Sinnott al (the plaintiffs) any estate, right title the tract of land upon which they were permitted to cut, nor did it deprive the Government from giving like licenses or others of equal authority to other persons, long as there was timber to satisfy the requirements the plaintiffe' licenses. SIsoTT & ELECTION-Dominion Elections and 98.-Promise pay due for a preelection-Hiring carters poll-Corrupt practices.] Held, affirming the judgment of the court below, 1st. When an agent of a candidate receives and spends election purposes large sumsof money, and not render an account expenditure, it will create presumption that corrupt practices have resorted to.
The payment an agent of sum of a voter claiming the same to due for exat a previous election, and who to vote until the amount is paid, a corrupt practice.
The hiring and paying of carters an agent to convey voters who are known to supporters of the agent's candidate is corrupt practice.-Young v. Smith followed. Under Can. Act-Scrutiny 1,48,212 CowN.
EVIDENCE-Under plea that defendant did mike draft sued on-Cons. N. - ----- EXECUTION-Writ issue-Irregularity
----- FACTUM-Scandqlous and impertinent-Ordered to taken files Court.] The plaintiff's factum, containing reflections the judge in equity, and the full court of wick, was ordered to taken the the court as scandalous and impertinent. e. 0VE
- ------ JUDGMENT-When timefor appeal gins run
MORTGAGE-Apainst tee-Sale under-Exercise loreclosure
2-Purchae fortgagee-Right of Mortgaafter
Facilitating the judgment - Stats
Ont., chap 1 and writ was issued et al (respondents) against M. for the recovery the and said writ was duly dorsed, in accordance with the provisions the Judicature Act, with particulars the claim of the respondents for the said on an account previously stated and settled between 0. al. and such amount being arrived at allowing to a discount of per cent.for the unexpired balance of the term of credit to which H. was entitled on the purchase of the goods.
appearance was entered M. to the writ, and the 8th April judgment was recovered for the amount, and on the same day writs execution were issued.
M. al. (appellants), creditors Instituted an action against him the 8th April, and obtained judgment the April, and the writs of execution were issued
The stock-in-trade was sold the sheriff publie auction, under the executions in his ands, to the respondents, who were the high.
est bidders.
a trial in an interpleader issue, to try whether appellants' execution againatM. was entitled priority over that of respondents, and whether the judgment of the latter was void for fraud, and as being a preference ;
whether respondents executions were void against appellants' execution, account their having issued them before the expiration of eight days the last day arance,
Justice Armour directed a verdict or judgment to entered favor of the appellants.
That judgment was reversed the of the High Court Justice
Ontario, whose judgment was the
Court of Appeal Ontario. appeal to the
Supreme Court Canada :
Appeal,-That what the debtor did in this did not constitute fraudulent reference prohibited 0., chap. an that the premature issue the execution the r dents was only an irregularity, and not a nullity.
CROnIs
2-Insolvent Act of and amending Actsinsolvent's property
GARNISHEE- Promissory overdue in hands of payee-Garnishee clauses, L. P. Act- Payment drawer into court order judge,
GARNISHEE.-Continued.
efect of Appeal-Final judgment-Supreme and Exchequer Court Act, 25-Supreme Court Amendment Act, action was brought respondent endorsee of a promissory note made appellants in favor one J. and him endorsed to respondent. appellants pleaded that the amount of the note had attached their hands A.'s judgment creditors and paid under the garnishee of the Common Law Procedure Act of P.E I . transcripts to inclusive, of the English 0. P. Act, this plea respondent demurred the ground that the debt was not which could properly attached, and on the 5th February, the Supreme Court gave judgment in favor of the respondent the demurrer. rule for judgment on the demurrer was taken out respondent.
the following order was obtained to ascertain amount of debt and damages for which final judgment was to entered, and judgment was signed for the respondent the following. appellants then appealed to the Supreme Court of Canada.
below, that an overdue promissory note in the hands the payee liable to be attached a judgment creditor under the P. Act, and that payment of the amount the garnishee to the judgment creditor of the payee, in pursuance of judge's order, a valid discharge. motion to quash want of jurisdiction, it was contended behalf respondent that the appellants should have appealed from the judgment rendered the demurrer the 5th February, and within thirty that date; but,
Held, that the judgment entered the was the judgment " in the from which an appeal would lie to the RELIEF-Prayerfor, in bill torectify award
WIFE-Insurable interest in wife's property - ---- INFRINGEMENT-Ofpatent- - 294 300 1,
INSOLVENCY-Insolvent Act of and Acts-Mortgage Insolvent's Property- Transfer within thirty days in contemplation of Insolven cy-Fraudulent preference under - Nerchants Shipping Act.) F , a ship. owner Yarmouth, employed agents Liverpool J. & the efendant J. being member oftheir and as agents York employed the of S. & of whien the defendant S. was a member. the course of his dealings with these agents indebted to both for acceptances them his drafts, when be want money, towards the payment which they received the freights of his vessel and remittances occasion he said that would give to the Liverpool a mortgage the Tsernogora" the Magnolia " when they should require it, and subsequent versaion with member of the agreed to such mortgage certain conditions which not out.
also promised the in York to give them security in anything happened, and mentioned as security mortgage the "Teernogora."'
According to F.'s own statement had cient property pay liabilities when these conversations took place.
A. weeks these conversations took place, executed a mortgage 2 shares of the "Tsernogora "
favor of the defendants J. and and had the recorded and within thirty days thereafter a writ of attachment insolvency was issued against plaintiff. who was appointed assignee F.'s estate his creditors, a bill to have the mortgage set aside, claiming that it was void under section the "
solvent Act of
The defendant did not answer the plaintiff's bill, and the other dants denied that the mortgage was made contemplation insolvency, and also claimed that it was made under the provisions of the
"1 Shipping Act" (Imperial), it was not the Insolvent Act of judge in equity, whom the cause was heard, made a in favor of the plaintiff and ordered the mortgage to be set aside, and the Supreme Court Nova Scotia missed an appeal that judgment.
Held,-affirming the judgment the court
Henry, J. dissenting, that the promise to security "in anything should hapcould only mean "in case the party should go into insolvency," and that the transfer was void under section of the "Insolvent Act
Held, also, that the provisions of the
Shipping Act " did not prevent the property the ship pasting to the assignee under the Insolvent Act.
FIRE-Insurance policy-Insurinterest-Special condition-Renewal-New contract-Appeal-New trial ordered Court below-Questions
J., the manager appellant's insured stock of one S., a debtor to the in the name and for the benefit the appellant.
At the time of such insurance J. represented appellant to mortgagee the stock of became insolvent and J. was appointed creditors' assignee, and the property of the insolvent was conveyed to the assignee.
made a bill sale of his stock to J., having composition with creditors under the Insolvent &ct of but not having had the the court.
insurance policy was renewed on August one year after its issue.
January 12 the bill of sale to J. was discharged and
FIRE.-Continued.
a new bill sale given 8 the appellant, who that the former had been taken J. agent, and the execution of the latter was merely carrying out the original intention of the parties.
stock was destroyed on action having brought on the it was tried before Smith without jury, and a verdict was the plaintiff. The Supreme Court of Scotia set aside this verdict and ordered new trial the ground that plaintiff had no insurable interest in the property when insurance and that no interest subsequently acquired would entitle him to maintain the action.
of the conditions of the policy was " that all insurances, whether original renewed, shall considered made under the original representation, far it may not be varied new representation in writing, which all cases it shall incumbent the party insured to make when the risk has changed, either within itself the surrounding adjacent buildings."
Hleld,-1 That the appeal should heard. Eureka Woollen Mills v. di-tinguished. That the appellant having had no insurable interest when the Insurance was the subsequently acquired interest gave him claim to the benefit of the the renewal the existing policy being merely a continuance of the original contract. Policy-Termination Company-Surrender-Waiver-Estoppel - Husband and wife- Insurable interest in wife's property-Temastfor lie-D'amages insurance on U.'s property, which held a mortgage, under authority from and in the name of with payable to himself. During the continuance of the policy the company notified that the insurance would terminated,and advised him to insure -elsewhere.
Such notice also stated that unearned premiums would turned, but no payment or tender of same was made according to conditions of policy took policy to agent of insurers, who was also agent of the Ins. and left it with directing to put risk latter company. receipt was given, and property was destroyed immediately after. Company resisted payment the ground that policy surrendered, and contended on the trial, in addition, that 0. had parted with his interest the property giving deed to who had re-conveyed to C.'s and the proper proofs of had not given, claiming, reply to plea waiver in regard to that such waiver should have been writing, according to condition in the policy. They had refused to return policy on demand. below, Fournier J. dissenting, that 0, an insurable inrerest the property at the time of the the husband the owner in 'se
NDEX.
FIRE.-Continued.
and tenant the courtesy initiate, and having had also insurable interest when the insurance the policy was not avoided the to
That the company, wrongfully withholding the policy, were estopped claiming that proofs of had not been given according to endorsed condition, and were equally estopped from setting the condition requiring waiver of to in writing if such condition applied to waiver of proofs loss.
hat the measure of damages recoverable tenant for of the insured premises the value of such premises to the extent of the sum insured.
Per Fournier J. (dissenting)
, that the sending the circular the company, and compliance with its terms the assured in giving up the policy to the company's agent, was surrender said policy, and plaintiff therefore could not recover.
Under the practice in Nova Scotia, where the improperly joined as co-plaintiff with the husband the suit not abate, but the wife's name must struck out of the record and the determined as if brought the policy-Sailing restrictzons-Time of entering Gulf of St. Lawrence-Attempt voyage policy containing this clause, " warranted not to enter or attempt to enter or to use the Gulf St. Lawrence prior to the day of nor after the 30th of October (a line drawn Cape North to Cape Ray and across the Strait Canso to the northern entrance thereof shall considered the bounds of the Gulf of St. Lawrence)," the evidence was follows:- The Captain says: " The voyage was from
Liverpool to Quebec and slip sailed on
April. Nothing happened until met with ice to the southward of Newfoundland.
Shortened sail and dcdged about for a days trying to work our way around it.
night ship was hove to under lower main top-sail, about midnight she driftea into large ice. There was a heavy sea on at the time, and the ship sustained damage.
were in this ice three or four hours. Laid all the next day.
Could not get further along account of the ice about twenty-four hours we started to work up towards Quebec "
The log-book showed that the ship got into this on the seventh of and an expert examined at the trial that the entries in the log-book of the 6th, 7th, 8th and the captain was attempting to enter the
Gulf St. Lawrenoe.
verdict was taken for the plaintiffs consent, with leave for the defendants to move to enter non-suit, or for a new trial; the court to have power to mould the verdict, also to draw inferences fact the same a jury. The
MARINE.-Continued. Supreme Court of Brunswick sustained the verdict.
-Held, reversing the judgment the court below, lenry J, dissenting, that the above clanee was aoplicaule to a voyage policy, and that there was evidence to go to the jury that contrary to such clause.
JURISDICTION-Of Court of Equity-Prayer forgeneral relief-Right to grant special relief LIABILITY-Of Railway Company for negligence-Special contract-Right of Company to - Regulations for sale - License fees- - ----- LEGISLATURES-Power o-Regulation of sale liquor-License fees-British North America (P.Q.) -Intravires-Mandamus.] The Quebec License intra virea lature of the Province of Quebec.
The Cas. followed. this Act not interfere with the existing rights and of incorporated cities, a imposing a license the sale intoxicating within the powers 2-Action against company-Praudulent MORTGAGE-Assignment of equity of redemp. tion in trust-Re-conveyance oy trustee-Poreclosure against trustee-Subsequent sale-Power of sale in mortgage-Eercise of after foreclosure-Recitals is gave a mortgage of leasehold premises to theImperial Loan and Investment with covenant authorizing the company to sell the premises on default, with or without notice to mortgagor, and either at public or private sale.
The mortgage the unexpired portion of the current term, and " every renewed term."
shortly after giving the mortgage, conveyed the equity of redemption in the mortgaged premises to one for a nominal consideration, and in trust to carry out certain negotiations for who then left the country and was absent for several years.
During his absence the lease of the ground mortgaged to the c-mpany expired, and was renewed the name of O'8.
Default having been made in the payment interest under th- mortgage, a suit was brought against 0'S. for foreclosure, the mortgagees having knowledge of his want of interest the premises.
Prior such suit fearing that such proceedings would taken against him, had executed a of re-conveyance the equity of redemption to but such deed was never delivered.
then an answer and a disclaimer interest in such suit, but was afterwards persuaded the mortgagees to withdraw the and consent to a and a final order of foreclosure was made against him Pursuant to this order the company subsequently sold the mortgaged premises to the defendant a less than the amount due under the mortgage ; the to recited the proceedings in foreclosure, and purported to made pursuant to the order of foreclosure.
brought suit against the company and to the re-opened and.cancelled, and the deed to set aside, and prayed to allowed to in and redeem the premises.
Held-affirming the judgment the Court
Appeal, Strong and Henry JJ. (dissenting)
-that even if the decree foreclosure improperly obtained, and consequently void, yet the sale and conveyance to were a sufficient tion the power sale the mortgage, passed the renewed term conveyed the mortortgagor and mortgagee-Foreclosure and sale-Purchase mortgagee-Right after-Statute of limitation-Trusteefor
In foreclosure suit against the heirs of a deceased mortgagor who were all infants, a decree was made ordering a sale; the lands were pursuant to the decree and purchased J. acting for and in lusion with the mortgagee; J.
diately alter receiving deed, conveyed to the mortgagee, who thereupon took possession of the lands and thenceforth dealt with them the absolute owner thereof;
subsequent devises and conveyances the lands became vested the defendant M. who them to one of the defendants to the suit, a bond purchaser without notice, taking a mortgage for the purchase money. In a suit to redeem the said lands brought the heirs the mortgagor some eighteen years after the sale and more than years after of the heirs of age :
Held,-reversing the judgment the Court of Appeal, that the suit being one impeachint a purchase a trustee sale the statute limitations no application, and that, as the defendants and those under whom they claimed had never been possession in the character of mortgagees, the plaintiffs were not barred the provisions of 0. and that the plaintiffs were consequently entitled to lien upon the mortgage for purchase money given
Held, also, that as it appeared that the plainwere not aware of the fraudulent character of the sale until just commencing their suit, they could not said to in the possession of the defendants.
3-In contemplation of insolvency-Insolvent Act of 1875-Fraudulent preference
- CORPORATION-By-lato - Expropriation-Right Way-Cost of-Guarantee- By-law-Ultra vires-Injunction-44 and 2-Construction Uader and Vic. 2 passed a petition of the Quebec Central Railway pany, after notice given them, asking for an amendment to their charter, the town of Levis p by-law guaranteeing to pay to the Central Railway Company the whole cost of expropriation for the right of way the extension of the railway to the deep water of the St. Lawrence river, over and above Appellants, being ratepayers of the town of Levis, applied obtained an injunction stay further proceedings on this law. the ground of its illegality. The proviso in section of the Act, under which the corporation of the town of Levis contended that the by-law was authorized, as follows: "Provided that within thirty days the sanction of the present Act, the corporation the town of furnishes the said company with its said guarantee and obligation to pay all excess over the cost of expropriation for the right of way "
the Act of oration of the' town Levis, no power authority given to the corporation to give such guarantee.
The statute and was passed the June, ; and the by-law forming the guarantee was passed the July following.
Queen's appeal side, and restoring the judgment of the Supreme Court,-that the statute in quPstion not authorize the corporation of Levis to impose bu' dens upon the municipality which not authorized their Act of incorporation or other special legislative authority, and therefore the by-law was invalid, and the injunction must sus- INDE.
PATENT.-Continuec.
tained.
(Ritchie
C- J. dubitante.)
styled "The
Paragon
Leaf Cheque specification claimed his NAME-Right one's on
806;
ne'sotvn306
In a black leaf of double leaves (one-half are bound tozether while the NEGLIGENCE-Defective sidewalk-Lawful use other half in both being perofstreet-Contributory negligence.] an action forated across that they readily torn against the town of Portland for damages arisout) the combination the black leaf hound ing from an injury caused a defective sideinto the book next the cover and provided with walk, the evidence of the plaintiff showed that tape across its the said black leaf having the accidentwhereby she was injured, happened the transferring composition ofits while was engaged in washing the window of her dwelling from the outside of the house,
A half interest in this patent was assigned to and that in taking a step backward her foot the defendant, with was in partnerwent into a hole the sidewalk and was ship, and the dissolution of such partnerthrown down and hurt; she also swore that she said half interest was re-assigned to knew the hole was there.
There was no eviwho afterwards assigned the whole interest to dence as to the nature and extent of the hole, the plaintiffs.
nor was affirmative evidence given negligence
Prior to the said dissolution the defendant the part of the corporation.
obtained patent what called Butter- The jury awarded the plaintiff damages, field's Improved Paragon claimand a rule nisi for new trial was discharged.
ing invention the following improvements previously : Held,-Per Taschereau and Gwynne JJ,
1 A kind type membrane hinge that there was evidence of negligence t a black leaf the whole bound an elastic justify the verdict of the jury, and there must to the a new trial.
bA nso w Per Henry J., that there was evidence of
3Attligset
Per evdenc of
After the dissolution proceeded to manunegligence the defendants, but that the facture under patent. questin of contributory negligence not plaintiffs instituted proceedin to been properly left to the jury, and there should train such manufacture, claiming that their a new trial.
patent was thereby infringed, and, the hear- Per Ritchie and Fournier J., that the ing the.Chancellor, obtained the relief plaintiff was neither walking nor passing over, prayed for; the Court of Appeal reversed this travelling upon, nor lawfully using the said judgment holding, that although the plaintiff's street alleged the declaration, she was patent was infinged the act the defendtherefore not entitled to recover. Tus ant, yet, that the patent itself was void want novelty and could not protected. Railway Company-Death of ie e
I22
Held, That the patent the plaintiffs under Damge-which they claimed was validpant, and in~A~sANDRAILwAY
RALA
OPNE was doubt that was infringed Railway Company-Power of Company manufacture and of the defendant's protect itself from-Special contract the judgment of the Court of should reversed that of the Chancellor restored. from
2-Infringement of-Combination -New res- TRIAL-Granted in court below-Verdict ult.]
obtained a patent an claimagainst weght of evidence-Appeal refuseding to have discovered way of building the fuel the patent con- 2- Granted court below-Questions law sisted of a combination parts, none involved-Appeal allowed - - which were claimed to the alleged invention consisting merely the result. Held, the judgment Court ABANDONMENT-Waiver- Strong dissenting, that the combinatioribeing mere aggregation parts not DISHONOR-By post themselves patentable, and producing no result the combination itself, no vention, and consequently it could not the by-Conpatent.
sideration-Petition of right- (Patent Aet)-Renewal.] PATENT-Assignment interest in-Subsequent June, the owner a patent infringement - Estoppel -Utility of invention.1 for an improved pump which only about a 0, obtained patent an alleged month to run, but was renewable two further PATENT.-ontinued.
terms of years each, agreed to sell to P.
al. pump patent counties, and of same date granted, sold and set to al. " all the right, title, interest which
I in the said invention as secured letters patent to and in the said limits of the counties
The habendum in was to the full end of the term which the letters patent are granted."
consideration was of which was and mortgages given the land the business was carried on, and the chattels for the residue.
The patent expired the July, and C.P. renewed it name for the further term years, and
P. al. having made default in June,
P. his bill asking payment of the balance of purchase or in default a sale of land. Almost at the same time P. al.
brought a suit against 0.P. to enforce performance of the agreement for sale of the patent right for the full period to which 0. P.
was entitled to renew the under the patent laws.
Held,-In the suit Peck al. v. Powell, reversing the judgment the Court of that under the agreement and assignment plainentitled to the extension as well as the current term.
in the suit Powell v. Peek al., ing judgment the Court of Appeal, that
0. P. was entitled to a decree forthe redemption or toreclosure of the mortgaged premises with costs.
Per Strong J.-According to the principles upon which court equity acts in carrying into execution its such contracts and agreements are properly the subject of its jurisdiction, the court will always execute the whole such parts the agreement as remain executory, but if parties have thought the institution of the suit, to carry any the terms of the contract, such executed portions will not disturbed.
Per Henry and Gwynne JJ.-That the crees the Court Chancery should consolidated and the sale default payment in the suit of Powell v. Peck at.
delayed until had assigned the renewal term.
Provincial debt - Lability of Dominion for-Order in Council- Right Petition.1 Prior to Confederation one was cutting timber territory in dispute the old Province of Canada and the Province of Brunswick, the former having granted him license for the purpose.
In order to utilize the timber cut, he had to send it down the Bt. John River, and it was seized the authorities of Brunswick and only upon payment of
T.
tinued the business two or three years, paying to the Province of Brunswick each ear, until he finally compelled to
RIGHT.-Continued.
The two Provinces subsequently entered into negotiations in regard to the territory in dispute, which resulted in the establishment of a boundary line, and a commission was appointed to determine the state of accounts between them in respect to such territory.
member the commission only reported finding Brunswick to indebted to Canada the of and upwards, and in these figures were verified the Dominion Auditor. and after Confederation quently urged the collection of this amount Brunswick with tho object of having it applied to indemnify the parties who had the said dispute while engaged cutting timber, and finally an Order Council of the Dominion Government (to whom it was claimed the indebtedness wick was transferred the Act), was declared that a certain amount was due to which would paid obtaining the consent the Governments of Ontario Quebec therefor. Sich consent was obtai and payments on account were made Dominion Government first to and afterwards to the suppliant, to whom had signed the claim.
Finally the suppliant, being able to obtain payment of the balance due said Order in Council, proceeded to cover it petition of right, to which petition the defendant demurred the ground that the claim was not founded upon a contract and was not properly subject for petition of right. Fournier J., sitting the Court of Exchequer, overruled the demurrer and gave judgment for the suppliant.
appeal to the Supreme Court of Canada.
Held,-Reversing the judgment of FournierJ. (Fournier and Henry JJ. dissenting) that there being no previous indebtedness shown to either the Province of Brunswick, the Province of Canada, or the Dominion ernment, the Order in Council did not create any debt between and the Dominion ment which could enforced petition - Demurrer - Replication 1 action was brought the Bank of I. against the appellant on promissory note, to which pleaded set-off of a draft made the plaintiffs and endorsed to him; to this there was a replication that the defendant was a tributory the stock book of the bank, knew that the bank was insolvent when the draft purchased; the defendant demurred the ground that the replication did not that the debt for which the action was brought was due from the defendant in his capacity shareholder or contributory :
tLat the replication wes bad in law. 2-Under Stat. N.B., Cap. 37-Action Bill of Exc"xe.
POLICY-Fire Insurance-Spacial Condition- 2- Fire Insurance-Termination Company
Surrender pel-- 3-Aarine-Sailing
SALE-In mortgage -Exercise deed alter foreclosure and
PRACTICE-Commission from Sup. Court of N.
B.-Cons. Stats. ch. 37-Directed missioners-Return signed only-Failure administer interrogatories-Mar. Ins.-Total lo8s-Notice of abandonment- Waiver]
was issued out of the Supreme Court
Brunswick directed to two commissioners
-one nameo each of the parties to the suitto take evidence at St. Thomas, with liberty to plaintiff's commissioner to proceed parte if the other neglected or refused to attend. Both commissioners attended the amination, and defendants' nominee cross-examined the witness, but refused to certify to the return, which was sent back to the court signed one commissioner only. of the interrogatories and cross-interrogatories were put to the witnesses the commissioners.
Held,-That the failure to administer the interrogatories according to the terms of the was a substantial objection, and rendered the evidence incapable of being received.
Per Ritchie and Strong, Fournier and
Henry JJ., that the refusal of one commissioner to sign the return was merely directory, and did not vitiate it.
Per Gwynne that the return should have been signed both commissioners, and not having signed was void, and the evidence under it should not have been read.
voyage from Porto to respondents' vessel sustained damage and put into St. Tnomas.
survey was held petent persons named the British consul, and according to their report the cost of putting her in condition would exceed her value.
The captain, under instructions owners to proceed under best advice, advertised and vessel, and purchaser had her repaired at h than the report, and sent her sea.
Held, that there was no evidence to justify the jury in finding that the vessel was total loss.
Owners of vessel gave notice to agent of underwriters that they would abandon, which agent refused accept. Owners telegraphed to captain that they had abandoned and for to proceed under the best advice.
Held, that this act of telegraphing the tain not constitute a waiver the notice
&
PRACTICE.-Continued.
2-Bill in Equity - Prayer for general relief - - - - -- 3-Reference to arbitration at Nisi Prius- Judge's order-Special paper Sup. Court N.B.- PRIORITY-Of Crown as simple contract creditor
- - - - - fwrit
NOTE-Notice dishonor post sufficient-37 1 (D).] The Bank of Halifax (appellants) as holders of promissory notes endorsed (respondent) brought an action against their amount. The notes were dated at Sum. were payable at the agency of the Merchants of Halifax, Summerside. defendant resided at the town of Summerside, and his place of business was there.
Notices dishonor were given to defendant posting such notices, addressed to the defendant at Summerside, at 1 o'clock p.m. on the day after the day which notes matured, the postage such notices being duly prepaid in both cases. There no local delivery letter carriers from the post in Summerside. evidence was given defendant that did not receive the notices of dishonor, not was evidence given the plaintiffs that the defendant had received them.
The jury found for the defendant, contrary to the charge the learned judge. A rule nisi having granted to set aside this verdict, and a new trial, the court discharged this rule nis and directed the verdict to stand, the ground that the posting of the notices dishonor to the defendant was not notice dishonor, inasmuch as both plaintiff and defendant resided the town, and the notices of dishonor should have delivered to the defendant personally, left at his residence or place of business.
below, that the passing uf Vic. ch. 1, the notices given in the manner above set forth were sufficient.
2-Oerdue in hands of payee-Garnishee (P.E.I.)
- Liability Dominion for-- - - - - - - ACT]-The License Act, cap. is intra vires the Legislature the Province of Quebec. (Hodge [S. C. R. VOL. Xl. Negligence-Death of by-Damages to husband as administrator-Benefit qfchildren-Los
Care and training children.] Although on the death of a caused negligence of railway company, the husband cannot 'ecover damages of a sentimental character, yet the loss of hold services accustomed to performed the which would have to replaced hired services, substantial loss for which damages recovered, as is also the to the children the care and moral training of their mother. (Taschereau and Gwynne JJ
2-Carriage railway-Special Contract- Negligence-Liability for - Power company to protect itself from-Live stock at owner's risk
-Railway Act, chap.
sub-sec. 4-34 chap. 5-Cons. Railway Act, chap.
dealer horses hired car the Grand Railway
Company for the purpose of transporting his stock over their road, and signed a shipping note which he agreed to bound the following, among other, conditions:- The owner animals undertakes risks of loss injury, damage, and other contingencies, in loading,
When passes are given to persons charge of animals, it is only the express dition that the railway company are not ponsible for any negligence, default, or misconduct any kind, on the part of the company their servants, or of any other person or persons whomsoever, causing or tending to cause the death, injury detention of any person or per.
sons travelling upon any such passes-the person using any such pass takes all risks every kind, no matter how caused.
The horses were carried over the Grand
Trunk Railway in charge person employed the owner, such person having a free pass for the trip; through the negligence of the company's servants a collision occurred which the said horses were injured.
Held,-Per Ritchie O.J. and Fournier and
Henry J3., that under the General Railway
Act, sub.-sec.
as amended Vic re-enacted
Act, Vic. ch.
which prohibited railway companies from rotecting themselves against liability for negligence notice, condition declaration, which applies to the Grand
Trunk Railway Company, the could not avail themselves of the above stipulation that they should not responsible for the negligence of themselves or their servants.
Per Strong and Taschereau JJ., that the words " notice, condition declaration,"
the said statute, contemplate public or general notice, and do not prevent a company from tering into a special contract to protect itself from liability.
Q. v. Vosle - --- - &o.-Continued.
3-Railway company-Sparks from engine- Proper care prevent emission of-Use of br coal for fuel-Contributory negligence] owned a barn situated about two hundred from the New Brunswick Railway Company's line, and such barn was destroyed caused, as alleged, sparks the fendants' engine.
An action was brought to recover damages for the of said barn and its contents. the trial it appeared that the fuel used the company over this line was wood, and evidence was given to the effeetthat coal was less apt to throw out sparks. It also appeared that at the place where the curred there was a heavy up-grade, necessitating full head of steam, and therefore increasing the danger to surrounding property. jury found that the defendants did not reasonable care in running the engine, but what the want of such care consisted, did not appear their finding.
low, that the company were under no obligation to coal for fuel and the of wood was not in itself evidence of negligence; that the ing of the jury on the question of negligence was not satisfactory, and that therefore there should trial. - Powers of County Court Judge Can.
SET-OFF-In action against contributory pany
- - --- SHAREHOLDER-Action against-Right of-45 76-Construction of- Contributory of bank.]
J. I., the appellant, gave to his note for which was endorsed to the Bank of P. I.; the Union
Bank
P.
I. at the time held cheque or draft, made the P. I., for nearly the same amount, and this draft the appellant purchased for something more than less than its face value; being sued the note he set-off the amount of such draft, and paid the the trial admitted had purchased it for the purpose using it as an to the claim his note, which he had made non-negotiable, and also admitted that if could succeed in his and another party could succeed a similar transaction, the Union Bank would get their claim against the Bank of I., which insolvent, paid full. The judge on the trial charged that if the draft was endorsed to the defendant to enable to it as set-off, could not because was contributory within the meaning of the section of the Canada Winding-up Act, and that the Act which came into on the was retrospective as regards the endorsements made it was passed, but within thirty before the commencement of the SHAREHOLDER.-Continued.
proceedings to wind up the affairs of the bank.
The jury, under the direction of the judge, found a general verdict for the plaintiff for the amount of the note and interest, which the Supreme
Court refused to disturb. appeal to the
Supreme Court Canada:
below, that appellant having purchased the draft in question for value and in good faith prior to 2uth the Canada Windingup*Act, ch. was not applicable, therefore the appellant was entitled to the benefit his set-off, and that the Winding-up
Act was not retrospective as to this endorsement.
sections and of44 it is provided that if debt due owing the pany has transferred within thirty days next before the commencement of the windingup under that Act, or at any time afterwards, to contributory who knows, or has probable cause believing, the company to unable to meet its engagements or to in contemplation of insolvency under the Act, for the purpose of enabling such contributory to set up way of compensation or set off the claim transferred, such debt cannot set up way compensation or set against the claim upon such contributory.
Held, that the sections in question only apply to actions against contributory when the debt claimed due from the person sued in his capacity as contributory. lues
PERFORMANCE-Contract not b1 but subsequently admitted his letters
Frauds
2-0 contract for sale of patent - STAMPS-On bill exchange-Double duty- 91-Powers of local legislatures
2-Railway Act, 4-34
5-Cons. Railway
- - - -----and cap. (D.)-Patent
Act----- - 4-37 cap. (D.)-Notice of dir honor- - --- - STATUTES.-Continued.
5-Dominion Elections and 98-Corrupt
Supreme and Exchequer Court Act, 25-Timefor
Supreme Court Amendment 9-Timefor
8-42 cap. (D.)-Stamps promissory notes-Double duty- - 9-45 cap. (D.)-Contributory 10-47 cap. (D.)-Dominion Lands Act
5---- - 11-R.
S. 0. cap. 37-Action for session of land - - - -- 12-R.
0. cap. 1, 2-Fraudulent - - - - - Cons. Stats. L.
15-41 Cap. (P.Q.)-License 16-44 and Cap. (P.Q.)- By - law Municipal Corporation - L.itra 17-Cons. State. Cap. (N.B.) - Commission evidence-Practice
18-Cons. State. Cap. (N. B.)-Action Bill of Exchange-Pleading
- - - - - - 19-45 Cap. (N.B.)-St. John City Act - - - - - 20-C. L. P. Act (P. E. I.) - Garnishee clauses - - - - - - STREET-Lawful of
- SURRENDER-Of policy
- IssuRan,
- -- -- -- LIFE-Insurance by-Value
TIMBER-Right to cut'under license-Dominion
- Possession fraudulently tained defendant-Plaintiff not put proof title-Tax sale-Rev. Ont. ch respondent, as assignee insolvency fH., who bought lot of land the purchaser at a sheriff's sale for taxes, a bill in Chancery under the Ontario
Administration of Justice Act against &
(appellants), who were in praying inter alia that defendants ordered to deliver up possession of the lands and to account the value of cut and removed.
answer adopted and claimed under conveyance the Crown and impeached the validity of the sale for taxes. his answer alleged was in possession under
At the trial it was proved that gave lease of the lot to one for four years, and that went to while he was still in possession, and fraudulent representations induced to leave the place and thereby obtained possession for the
W. The Courtof Chancery for Ontario held that appellants were obliged to yield up to the respondent asserting any title in themselves.
The Court of Appeal
Ontario varied the declaring that the was to without prejudice to any proceeding the appellant might be advised to take to establish his title to the lands question within two months from the date thereof.
Held, Per Ritchie J , and Strong, Fournier and Henry JJ., affirming the judgment of the courts below,-that the appellants, having gone into possession under estopped in this suit from disputing their landlord's title. and that the respondent was entitled to an injunetion to restrain appellants committing waste and to an account waste already mitted.
PerStrong J.-The decree made the Chanwould have constituted no bar to a subsequent action at law or suit in equity to impeach the tax and should not have varied the Court of Appeal.
Per Gwynne J.-The should have been of upon the as the valibility title upon which the plaintiff had his bill rested his case; and as the appellants had failed to that the taxes had been paid the sheriff' sale, the Ontario statute, had removed all errors and defects if any there were, which would have enabled the true owner, at the time of the sale, to have avoided it, and pursuant to the provisions ch. R.S.O., the respondent was entitled to recover possession of the land in
LAND.-Oontinued.
question and to have execution therefore, but not to an order for an injunction or any direction for an account, the statute authorizing title to real property to tried in a Court Chancery not justifying a judgment of a more extensive character than would have pronounced in a court of common law if the Copright
Head-line book-Name "Beatty '-Right of party to se his name-Goode sold to public.] carriei business in partnership with a part of the business being the sale of a series books designed to which was given the name 1' Beatty's Head-line Copy " partnership was dissolved retiring and receiving for his interest in the business.
After the dissolution made an agreement with the Canada Publishing to prepare a book for them, which copybook was prestyled " Beatty's and Improved Head-line Copy which the said sold in connection with their business.
brought suit against and the injunction and an account, claiming that the sale of the last mentioned copy book was an infringement of his trade mark.
Heclaimed exclusive right to the of the name " Beatty" in with his copy book. and alleged that had paid a larger the dissolution than would have paid unless he was to have the exclusive sale of these copy books. Appeal, Henry and Taschereau JJ., dissenting, That defendants had no right to sell Beatty's and Improved Head-line Copy " any form, with any cover, calculated to purchasers into the belief that they were buying the books of the plaintiff. TE al.
TRUSTEE-Construction of trustof Synod-vested rights- Commutation fund.] The sum received commutation under the Clergy Act paid to the Church Society of the of Huron, upon trust to pay to the commuting clergy their stipends and when such payment should cease then " the support and maintenance the clergy of the Diocese of Huron in such manner as should from time to time declared any by-law or by-laws the Synod to time to time passed for that purpose."
In a bylaw was passed providing that out of the surplus the commutation fund, clergymen eight years and upwards active service should each with provision for increase in certain events. In the plaintiff became entitled under this by-law, and in the Synod (the successors of the Church Society) repealed all previous by-laws respecting the fund, and made a different appropriation of it. below, Fournier and Henry JJ. dissenting, S.
. R. Vo.
XI.]
TRUSTE.,-Continued.
tiat anaer the terms of the trust there was contraci the plaintiff anl ef-ndant4;
the trusees power to time, to regulatag the fund question and making different appropriation it, the suapoxt nd maintenance of the clergy the and the plaintiff must to have accepted hii stipend with that knowledge and that condition. WalRar
HURoN
2-Assignment Equy.of Redemption in trust
-Re-conveyance Trustee-Foreclosure against
Trustee -- --- 3--.Vortgoeraid rtgagee-Foree'losure and sale
Purchase mortgagee
Trustee for
- - - - - - VIRE3-Qnebec Licene
2-Building
3unicipd rporation By-lawanthorize4
- Specifc perfornance--Contrict not signed vendor, but sequently admitted his letters-Stitut' frauds J property was sold auction, the particulars conditions of sale not isclosing the vendor's name, and the contract was duty signed the purchaser, but was the vendor or the auctioneer acting in the matter of and subsequently,in coniequence of the part of the purchaser, the attorneys the vendor of was the vendor himself- wrote in the course of a correspondence which ensued : " Be 8.'s purcha-e, we would like to this " Aid referring to certain representations made in the advertise- Ients Tey of the contract
* Have th' goodness to let know whether the y cash give mortgage. If the letter we will prepare it at and sead you draft for proval and subs-quen occasion I Re
1.'s purchase.
Herewith please receive
-Continued. for app-oval," and another occsion the vendor himielf wrote " 1 shall take immediate to e'force the contract."
Held, affirming the judgment of the courts below, that the iition of sale together with the correepondence were sutlicient to constituse complete pe-fect coarract between trie vendor and purchaser withia the Statutq Frands. O'Doooz STsoxas
85S VERDICT-Against weight of evidence - 2-Award to entered as-Mlotion aside
- - - - - - -Atcptance dividends noticeofabanionment
INsusiac,
-Construction of
Leg icy
Coniieton Precedent ]
0., the toird chuse of will, devised and bequeathed the resi lue of estate to four sons and two the devise and bequest b-iug subject t. the 'lition that they bhould all unite paying 10 the executors before the let January, the sum of and the same before the let January, said sums to pay the sbare two the sons, Alexauder sad Duncan. the furtn clause gsve the sum of $,%0, without coridiion, Alexander to sons Douglas ani Robert Oliver two lots and after giving several legteies to daughters, proceeded, " and further, that Alesander and Dancau work the farm until their legacies
Alexander left the in and entered into mercantile pursuits Ritchie 0. J., and Henry dissenting, tiat the direction that Alexander should work on the farm was a condition precedent to his right to the legacy of
OLivasV. INTDE4
Cases cited
- Ibid. Ibid.
Statutes and regulations cited
-
Unresolved citations
- section 133
- section 183 of the Insolvency Act
- Section 131
- Section 66